C-357/98

YIADOM

OPINION OF ADVOCATE GENERAL LÉGER delivered on 30 March 2000 »

1. When Ms Yiadom, a Netherlands 4. Ms Yiadom wishes to exercise that right national of Ghanaian origin, arrived in of appeal, but challenges the validity of the the United Kingdom, she was granted requirement to which it is subject. temporary admission to the United King- dom whilst her claim to enter was investi- gated by the competent national authori- ties.

5. It is thus the right for a Community national to remain on the territory of a Member State in order to exercise a legal remedy in respect of a decision refusing him entry which is at the heart of the questions referred by the national court. We shall see, 2. After inquiries, the Secretary of State for however, that the answer to those questions the Home Department told her that, on is, in large measure, determined by the grounds of public policy, she was refused nature of the decision taken in respect of leave to enter, in the legal sense of the term, the person concerned in the main proceed- the United Kingdom. Ms Yiadom is alleged, ings. in the past, to have facilitated the illegal entry of other persons into the United Kingdom. He stated that she was likely to commit that type of offence again, which justified the decision to refuse her leave to enter.

I — The legislation applicable

3. The legal remedies which national law allows her to exercise include an 'out- Directive 64/221/EEC country right of appeal', the particular feature of which is that it may be exercised only on condition that the person con- cerned is not in the country. 6. The purpose of the Council Directive of 25 February 1964 is the coordination of * Original language: French. special measures concerning the movement

This authority shall not be the same as that empowered to take the decision refusing renewal of the residence permit or ordering expulsion. 9. Article 8 provides: 'The person con- cerned shall have the same legal remedies in respect of any decision concerning entry, or refusing the issue or renewal of a residence permit, or ordering expulsion from the territory, as are available to nationals of the State concerned in respect 2. Any decision refusing the issue of a first of acts of the administration.' residence permit or ordering expulsion of the person concerned before the issue of the permit shall, where that person so requests, 1 — Council Directive 64/221/EEC of 25 February 1964 on the be referred for consideration to the author- coordination of special measures concerning the movement ity whose prior opinion is required under and residence of foreign nationals which are justified on grounds of public policy, public security or public health paragraph 1. The person concerned shall (OJ, English Special Edition 1963-1964, p. 117; hereinafter 'the Directive'). then be entitled to submit his defence in 2 — Article 2(1). person, except where this would be con- 3 — The third recital in the preamble. trary to the interests of national security.'

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National law 13. Under section 13 of the Immigration Act 1971, a person refused leave to enter the United Kingdom has a right of appeal to an adjudicator. 4His right of appeal is termed 'out of country', meaning that it is exercisable only once he has left the United Kingdom, unless he held a current entry 11. Article 3(1) of the Immigration (Eur- clearance or a current work permit. 5 opean Economic Area) Order 1994 states:

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15. Under section 11(1) of the Immigration woman was returned to Ghana, while Ms Act 1971, a person who has not otherwise Yiadom was temporarily admitted subject entered the United Kingdom shall, in parti- to a restriction against her obtaining cular, be deemed not to do so as long as he employment. The decision to refuse leave is detained, or temporarily admitted or to enter was taken by the Secretary of State released while liable to detention, under the on 3 March 1996. powers conferred by Schedule 2 to that Act.

16. The legal remedies described above 18. Following the refusal of leave to enter, must be distinguished, in the United King- the grant of temporary admission was dom, from applications for judicial review, extended, and on 31 May 1996 the restric- whereby the legality of decisions of public tion against employment was lifted, pend- authorities is subject to review by the ing judgment in the proceedings brought by ordinary courts, that is to say, in England, Ms Yiadom. Wales and Northern Ireland, the High Court of Justice. 6

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TTT — The questions referred only be exercised once that person is no longer physically present in the Mem- ber State concerned?

20. Since the Court of Appeal of England and Wales took the view that the resolution of the dispute before it depended upon an interpretation of the Directive, it decided to (3) For the purposes of Article 8 and/or 9 stay proceedings and to refer the following of Directive 64/221, where national six questions to the Court of Justice for a law: preliminary ruling:

— permits the competent authorities, '(1) Do both Article 8 and Article 9 of as an alternative to detention, to Council Directive 64/221/EEC of grant "temporary admission" to a 25 February 1964 on the coordination national of another Member State of special measures concerning the who does not hold a current resi- movement and residence of foreign dence permit onto the territory of nationals which are justified on the host Member State, without grounds of public policy, public secur- granting that person "entry" under ity or public health (OJ, English Special national law into the Member Edition 1963-1964, p. 117) apply to State concerned; and decisions concerning entry into the territory of a Member State, or are decisions concerning entry covered solely by the provisions of Article 8?

— permits the competent authorities to keep the person concerned on temporary admission until they have completed their inquiries as to whether or not the facts justify (2) If the answer to the first question is measures to exclude that person that Article 8, but not Article 9, of from the Member State on grounds Directive 64/221 applies to decisions of public policy, concerning entry into the territory of a Member State, are the requirements of Article 8 satisfied by provisions of national law which grant to the national of a Member State who is refused entry to another Member State on grounds of public policy a right of is a subsequent decision to "refuse appeal to a court of law which may entry" to that person and to exclude

22. First, Ms Yiadom is a Community national, since she has Netherlands nation- ality. That matter is not disputed and is confirmed by the fact that the questions referred by the national court seek the interpretation of Directive 64/221, whose application is restricted by Article 1 thereof (5) Is the answer to Question 3 capable of to nationals of Member States. being affected by the length of time taken (a) to "refuse entry" and/or (b) to implement such decision by actually removing the person concerned from the territory of the Member State, and if so in what way? 23. Second, in the part of the order for reference which deals with what it calls 'the conventional [judicial review] challenge', as opposed to the challenge under Articles 8 and 9 of the Directive, the Court of Appeal states that it sees no reason to doubt the validity of the decision taken against Ms Yiadom on grounds of public policy. 8 (6) Is the answer to Question 5 in turn capable of being affected by whether the delay in implementing a decision to 8 — Pages 18 and 19 of the order for reference.

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27. The first and the last four questions must therefore be looked at together in order to determine whether, in the light of 25. Questions 3, 4, 5 and 6 all describe the the circumstances of the case, a decision circumstances surrounding the decision to such as that taken against Ms Yiadom may refuse Ms Yiadom entry, such as the fact of be regarded as a 'decision concerning her having been granted temporary admis- entry'. sion to the United Kingdom or the time which elapsed between her arrival in the United Kingdom and the decision.

28. In other words, it is necessary to examine whether Article 8 of the Directive must be interpreted as meaning that a In formulating those questions the United decision to refuse to a Community national Kingdom court seeks to know whether, in who does not hold a residence permit leave

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to enter into the territory of a Member constitutes a 'decision concerning entry' State in a case such as that in question in within the meaning of Article 8 which the main proceedings where: would, consequently, fall outside the scope of Article 9.

29. Question 2 relates to the question — the person concerned was granted whether Article 8 of the Directive must be temporary admission to that territory interpreted as meaning that a Member pending the decision on entry, State is entitled to make the exercise of a legal remedy in respect of a 'decision concerning entry' taken against a Commu- nity national conditional on the require- ment that that person must already have left its territory. — several months elapsed between her arrival and the decision refusing entry,

A Member State cannot therefore organise, for that category of nationals, legal reme- dies governed by special procedures afford- ing fewer safeguards than those pertaining to remedies available to nationals in respect of acts of the administration. 9 35. However, as has been indicated, the machinery to ensure procedural fairness thus put in place does not relate to appeals brought against all measures concerning entry and residence. The intervention of the 32. The provisions of Article 9 of the independent authority is provided for in Directive complement those of Article 8. respect of the appeals available against the Their purpose is to provide minimum decisions listed above, which do not procedural guarantees for persons affected include 'decisions concerning entry'.11 by one of the measures referred to in the three cases defined in Article 9(1): 'Where there is no right of appeal to a court of law, or where such appeal may be only in respect of the legal validity of the decision, or where the appeal cannot have suspen- sory effect'. 10 36. Accordingly, a 'decision concerning entry' within the meaning of Article 8 falls outside the scope of the provisions of Article 9, even though there might be no right of appeal to a court of law, or such 33. The measures referred to in Article 9 appeal might be limited to the examination are refusal to renew a residence permit, of legal validity, or the appeal might extend expulsion of the holder of a residence permit from the territory (paragraph 1), refusal to issue a first residence permit, 11 — It must be made clear that the expression 'décision expulsion before the issue of the permit d'entrée', as used in the French version of the Directive, must be understood to mean any decision 'concerning (paragraph 2). entry', in the sense that it is not restricted to decisions authorising entry into the national territory, but also covers decisions refusing entry. That interpretation is clear from the other language versions which, like the English, Spanish, Finnish ana Swedish versions, refer to any 9 — See, in particular, Sbingara and Radiom, cited above, 'decision concerning entry' or, like the German, Danish, paragraph 25. Greek, Italian, Dutch and Portuguese versions, refer to any 10 — Ibid., paragraphs 33 and 34. 'decision refusing entry'.

39. However surprising that situation may be, it is based on reasons which are entirely understandable. A Member State cannot be criticised for conducting as full an investi- gation as possible before taking a decision 37. According to the terms of the national which might lead it to expel a Community law applicable in the present case, the national, thereby infringing the principle of contested decision is a decision refusing the free movement of persons, even if in entry. Ms Yiadom's position in the United doing so it avails itself of a possibility Kingdom is classified as 'temporary admis- offered by the Treaty. Admittedly, such sion', which means, according to the Immi- precautions, which are taken in the interest gration Act 1971, 15 that she is deemed to of the person concerned, may demand a be outside the territory of the United certain length of time. Kingdom for as long as she is on temporary admission.

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person concerned had enjoyed a prolonged the discretion of each Member State'. 18 stay in conditions similar to those of a The Directive makes to the law of the Community national who had lawfully Member States no reference which would entered into the national territory leads us argue in favour of different interpretations to wonder about the real nature of that according to national laws. decision, in the light of the notion of 'decision concerning entry' within the meaning of Article 8.

45. A uniform application of Community law and the principle of equality impose that conclusion. 19 42. Let us be clear at the outset that that notion cannot depend on the classifications applied by national laws.

46. The Directive's objective of coordinat- ing the special treatment organised by Member States for foreign nationals sug- gests the same conclusion. The coordina- 43. It is clear from the settled case-law of tion 'presupposes in particular an approx- the Court that 'the Community legal order imation of the procedures followed in each does not... aim in principle to define its Member State when invoking grounds of concepts on the basis of one or more public policy'. 20 national legal systems without express provision to that effect'. 16

47. The purpose of the Directive is not, admittedly, to achieve absolute uniformisa- 44. That principle applies not only to the tion of the national procedures in these provisions of the Treaty and to regulations, matters. However, the legal remedies avail- but also to directives. 17 The interpretation able in respect of decisions restricting the of a term used in a provision of a directive free movement of persons must have cer- 'which does not refer to the law of the tain characteristics in common, for reasons Member States for the determining of its both of equal treatment of the persons meaning and its scope... cannot be left to

52. That is why I think that the boundary 49. The distinction is not easy to explain, between Article 8 and Article 9 takes since the Directive gives us no information account of the physical location of the which would enable us to understand the Community national and, if he has in fact reasoning behind it. entered into the territory of the Member State of destination, of the time he has stayed there and of the conditions of his stay, at the moment when the refusal is made known to him and when the issue of legal remedies arises. 50. The fact that decisions taken in respect of Community nationals in matters con- nected with entry or residence are coupled with legal remedies which are appreciably less protective of their rights than those which are available in respect of other decisions of the same type, but based on identical grounds of public policy, can be justified only by objective differences. 53. The physical entry of an individual into the territory of a Member State constitutes the first stage of the dealings which a foreign national may have with a Member State other than his own. A prolonged stay, Thus it is necessary to identify what which is lawful from an administrative distinguishes a Community national, standpoint, in that State constitutes a more against whom a decision refusing entry advanced stage in that process. As early as has been taken, from one who, for exam- the first stage, the person present on the ple, is faced with a decision refusing the national territory, including when he is issue of a first residence permit or a waiting for his situation to be made lawful, decision ordering his expulsion before the has objectively more opportunities to form issue of the permit. social links, whether personal or profes-

59. Ms Yiadom did not, admittedly, engage in any occupational activity before the 56. The limited nature of the legal remedies decision refusing entry was taken. How- reserved to persons who are turned back at ever, the material organisation of her stay, the frontier on grounds of public policy is which was made necessary by her actual explained, consequently, by the fact that and prolonged presence in the United their interest in entering and in residing in Kingdom, place her in a more difficult

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position than if she had been merely faced 62. That is evident from the fact that Ms with a decision refusing entry made at a Yiadom remained in the United Kingdom border checkpoint. In this respect, a deci- from 7 August 1995, the date of her sion such as that taken in her case resem- arrival, until 3 March 1996, the date of bles more closely a decision ordering her the decision refusing entry, namely seven expulsion from the national territory. months, whereas the first subparagraph of Article 5(1) of the Directive states that '[a] decision to grant or to refuse a first residence permit shall be taken as soon as possible and in any event not later than six months from the date of application for the permit'. 21

64. The same reasoning applies to 'any decision ordering expulsion... before the issue of the permit' within the meaning of Article 9(2). It is possible to conceive, in principle, of a situation in which an unde- sirable Community national is expelled, on 61. A person who has applied for a first grounds of public policy, at the end of a residence permit is, on the other hand, not always in such a position. His application 21 — Emphasis added. does not necessarily show that he has 22 — As the national court rightly suggests, the system of already spent a prolonged period or one 'temporary admission', in allowing the competent autho- which is longer than the average duration rities to prolong a Community national's stay on the national territory while at the same time deeming him not of 'temporary admission' in the Member to have entered it, frees them from the time-limit under Article 5(1) and from observing the safeguards under State in question. Article 9 (pages 15 and 16 of the order for reference).

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very brief stay, which would place him in caused by that appeal, should not, in my the same position as a person granted opinion, be relevant to the classification of temporary admission. the contested decision.

68. Like granting temporary admission 65. In each of those cases, the decision before refusing entry, lifting the restrictions taken in respect of the person concerned on employment is designed to make more has the effect of excluding him from the bearable the wait necessitated by the pre- territory of the Member State where he had paration or examination of the grounds of been for some time and where he had the decision. Consequently, that flexibility enjoyed the right of residence in conditions introduced in the conditions of residence in of freedom similar, if not identical, to those the national territory is also such as to of a Community national, or even a tighten the links between the Community national of the State concerned. 23 national and the host State.

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could be amended after the decision had from their objective, which is to enable the been adopted, by reason of a change in legality of the contested decision to be re- circumstances, at the time when, indeed, a examined or reviewed and not to derive ruling must be made on the appeal brought from the suspensory effect which is asso- against it. ciated with it an additional right to resi- dence.

70. As regards the delay in implementing the contested decision, the Commission 72. The contested decision must thus be rightly recalled the terms of the Court's classified, in the light of Articles 8 and 9 of judgment in Sevince, 24 according to which the Directive, on the basis of the evidence a person hoping for recognition of a right which the competent authorities had at the of residence cannot 'be recognised as being time when they made their decision, so that vested with that right, merely because, the time which elapsed between that deci- having been refused a valid residence sion and the one on the appeal cannot be permit by the national authorities during taken into account. The same is true of the that period and having exercised the rights conditions in which the person concerned, of appeal provided for by national law granted temporary admission, remains on against such refusal, he benefited from the the national territory pending a decision on suspensory effect deriving from his appeal his appeal. Permission to engage in an and was therefore able to obtain authorisa- occupational activity is, in this respect, tion, on a provisional basis pending the immaterial. outcome of the dispute, to reside and be employed in the Member State in ques- tion'. 25

75. The time which elapsed between the 78. We have seen that that is not the case contested decision and its implementation, and that the contested decision must be the fact that that delay was due to the classified differently. exercise of an appeal relating to the legality of the decision and the fact that, after the decision refusing entry, the person con- cerned was given permission to engage in an occupational activity do not constitute 79. As is clear from the Commission's factors capable of affecting the classifica- observations, the legal remedies put in tion conferred on the decision in question. place by the national legislation are not the same in the case of a decision refusing admisssion, within the meaning of Arti- cle 15(1) of the Immigration (European Economic Area) Order 1994, on the one hand, and, in the case of a decision ordering removal, within the meaning of Article 15(2) of that order, or of refusal or withdrawal of a residence permit, within VI — Question 2 the meaning of Article 18 of the same order, on the other hand.

76. The question referred by the Court of 80. According to the Commission, in those Appeal relates to the principle of national situations concerning removal or the resi- law that a Community national who is dence permit of a Community national, the refused entry into a Member State by a appeal which is available to him may be 'decision concerning entry', within the brought even if he is in the United Kingdom meaning of Article 8 of the Directive, may (in-country right of appeal). 27 exercise a right of appeal to a court of law only if he has left that country.

Article 8 of Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health must be interpreted as meaning that a decision by which a Member State refuses entry into its territory to a national of another Member State who does not hold a residence permit, in a case such as that in point in the main proceedings, where a Community national was granted temporary admission into the Member State of destination, under rules of national law, which allowed her to enter into that territory and to stay there for a period of seven months without being subject to direct or continuous control by the competent national authorities, pending that decision, constitutes a 'decision... ordering expulsion from the territory' and not a 'decision concerning entry' within the meaning of that article.

The time which elapsed between the decision and its implementation, the fact that that delay is due to a challenge to the legality of the decision and the fact that, after the adoption of the decision, the person concerned was permitted to engage in an occupational activity do not constitute factors capable of affecting the classification conferred on the decision in question.

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