C-192/99

2. The Treaty on European Union amended the wording of Article 8 of the EC Treaty (now, following amendment, Arti- cle 17 EC), 2 establishing a citizenship of the Union and making such citizenship subject to possession of the 'nationality of a Member State'. The Community legisla- ture thereby expressed once again the importance which it attaches to a prior The High Court of Justice goes on to national connection on the part of those question the Court as to the content and seeking to invoke the benefit of Community scope of the concept of 'citizenship of the law. Union', as defined in Article 8a(1) of the EC Treaty (now, following amendment, Article 18(1) EC), to enable it to rule on 1 — Original language: French. the effects which that status may have, in 2 — The change in numbering of Article 8 and the new regard to the right to enter and stay, for a amendment to its content (an additional sentence has heen British citizen deprived of that right under inserted in paragraph ( 1 ) (sce point 27 of the present Opinion) follow from the Treaty of Amsterdam. national legislation.

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I — Legal framework Article 8a

1. Every citizen of the Union shall have the Community law right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.' 4. Articles 8 and 8a(1) of the Treaty are worded as follows:

5. At the time of signing the Documents concerning the Accession to the European Communities of the Kingdom of Denmark, 'Article 8 Ireland and the United Kingdom of Great Britain and Northern Ireland, the United Kingdom Government made the following declaration on the definition of the term 'nationals': 3

Community acts deriving from those Trea- the United Kingdom of Great Britain and ties, are to be understood to refer to: Northern Ireland makes the following Declaration, which will replace, as from 1 January 1983, that made at the time of signature of the Treaty of Accession by the United Kingdom to the European Commu- nities: (a) persons who are citizens of the United Kingdom and Colonies or British sub- jects not possessing that citizenship or the citizenship of any other Common- wealth country or territory, who, in either case, have the right of abode in the United Kingdom, and are therefore exempt from United Kingdom immi- "As to the United Kingdom of Great gration control; Britain and Northern Ireland, the terms 'nationals', 'nationals of Member States' or 'nationals of Member States and overseas countries and territories', wherever used in the Treaty establishing the European Eco- nomic Community, the Treaty establishing the European Atomic Energy Community (b) persons who are citizens of the United or the Treaty establishing the European Kingdom and Colonies by birth or by Coal and Steel Community or in any of the registration or naturalisation in Gibral- Community acts deriving from those Trea- tar, or whose father was so born, ties, are to be understood to refer to: registered or naturalised.'

6. In 1982 the United Kingdom Govern- ment lodged with the Italian Government, (a) British citizens; as guardian of the Treaties, a new declara- tion on the definition of the term 'nation- als' 4 which was worded as follows:

(b) Persons who are British subjects by 'In view of the entry into force of the British virtue of Part IV of the British Nation- Nationality Act 1981, the Government of ality Act 1981 and who have the right of abode in the United Kingdom and are therefore exempt from United 4 —OJ 1983 C23, p. 1. Kingdom immigration control;

10. The new British Nationality Act 1981 8 'The Conference declares that, wherever in abolished the status of citizenship of the the Treaty establishing the European Com- United Kingdom and Colonies and divided munity reference is made to nationals of the those who held that status into three Member States, the question whether an individual possesses the nationality of a categories: Member State shall be settled solely by reference to the national law of the Mem- ber State concerned. Member States may declare, for information, who are to be considered their nationals for Community (a) British Citizens, including citizens of purposes by way of a declaration lodged the United Kingdom and Colonies with with the Presidency and may amend any such declaration when necessary.' 6 — Hereinafter referred to as 'the 1948 Act'. 7 — Not applicable to the English text. 5 — OJ 1992 C 191, p. 98. 8 — Hereinafter referred to as 'the 1981 Act'.

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the right of abode in the United King- that of a British Overseas Citizen. As such, dom; she has no right under national law to enter or remain in the United Kingdom.

(b) 'British Dependent Territories Citi- zens', comprising citizens of the United 12. Following several temporary periods of Kingdom and Colonies who did not residence in British territory, and while have the right of abode but satisfied once again in the United Kingdom, Mrs certain conditions concerning connec- Kaur re-applied for leave to remain on tion with a British Dependent Territory 4 September 1996, as she had done on deemed to confer on them immigration several occasions since 1990, the year in rights to that territory; which she first entered the United King- dom.

(2) If and to the extent that the United Kingdom is not entitled, as a matter of Community law, to rely on the Declarations referred to in (1) above, what are the relevant (1) What is the effect (if any) as a criteria for identifying whether a matter of Community law of person has nationality of a Mem- ber State for the purposes of Arti- cle 8 where domestic law identifies various categories of nationality only some of which confer a right to enter and remain in that Mem- ber State? (a) the United Kingdom's 1972 Declaration "on the definition of the term 'nationals'" which was made at the time of Acces- sion to the European Commu- nities and annexed to the Final Act of the Accession Confer- (3) In this context, what is the effect of ence, and the principle of respect for funda- mental human rights under Com- munity law claimed by the Appli- cant, in particular where the Appli- cant relies on Article 3(2) of the Fourth Protocol to the European Convention on Human Rights that (b) the United Kingdom's 1982 no one shall be deprived of the Declaration "on the meaning right to enter the territory of the of a UK national", and State of which he is a national,

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which has not been ratified by the III— Question 2(d) in the order for refer- United Kingdom? ence, concerning the applicability of Arti- cle 8a(l) of the Treaty

2. In the circumstances of the present 16. It is appropriate first of all to address case, does Article 8a(1) of the this question, since the answer which may EC Treaty: be given to it will determine whether it is necessary to examine the other questions.

would be little point in ruling on the rights derived from her status as a Mrs Kaur's nationality, on which precisely citizen of the Union. the status of 'citizen of the Union' depends. The same reasoning applies in regard to the other questions grouped under Question 2, since these will serve a purpose only if the dispute does in fact come within the scope of Community law. 21. The judgment in Uecker and jacquet is one of the most recent judgments delivered by the Court in line with its established case-law to the effect that certain provi- sions of Community law cannot be applied to cases which have no factor linking them with any of the situations governed by 19. The Italian, Danish and United King- Community law and all elements of which dom Governments, together with the Com- are purely internal to a single Member mission, argue that the question posed falls State. 11 outside the scope of Community law, and cite to this effect the case-law of the Court, in particular the judgment in Uecker and Jacquet. 10

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23. The principles of Community law con­ for the purposes of Article 8a(l) of the nected to the free movement of persons and Treaty in support of her claim to be entitled services seek to ensure that a Member State to reside within British territory. She pro­ cannot use the nationality of a national of poses that the concept of a 'person holding another Member State or the fact that one the nationality of a Member State' should of its nationals has received training in be construed in such a way as to limit the another Member State as a pretext for right of Member States to fix the criteria obstructing that person's right of move­ for attribution and the content of that ment within its own territory. Citizenship nationality. 13 of the Union, which encapsulates those principles, is designed to guarantee free movement of persons in an area without internal frontiers, as envisaged by the second paragraph of Article 7a of the 27. The notion of 'citizenship of the EC Treaty (now, after amendment, Arti­ Union', which is a recent concept in cle 14(2) EC). Community law, is far from having been fully examined by the Court and remains the subject of divergent views regarding certain of its aspects. 14 The fact remains that Article 8a(l) of the Treaty sets out 24. The Court's position in regard to unambiguously, for the purpose of the case internal situations is justified by the need in the main proceedings, the right of every to confine application of the Treaty provi­ citizen of the Union to move and reside sions or the rules of secondary law resulting freely within the territory of the Member therefrom to situations involving certain States, 1 5which expresses the idea that extraneous factors, in particular situations nationals of the Member States may move characterised by the existence of cross- freely from one Member State to another. border elements.

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had already drawn a distinction between, 28. The Court has consistently held that on the one hand, the entry and residence of the rules governing the free movement of a national of a Member State within the persons 'apply only to a national of a territory of another Member State, which Member State of the Community who seeks are matters coming within the scope of to establish himself in the territory of Community law, and, on the other, that another Member State or to a national of national's entry and residence in his own the Member State in question who finds territory, which are based on the rights himself in a situation which is connected attendant upon his nationality. 16 This with any of the situations contemplated by distinction has, in my view, been main- Community law'. 18 tained by the wording added to Article 8(1) of the Treaty by the Treaty of Amsterdam. By specifying that 'Citizenship of the Union shall complement and not replace national citizenship', the Community legislature has reaffirmed the idea of an allocation of areas of competence between the Member States and the Community in matters affecting the rights and duties which an individual may 29. It should be noted that, from the acquire by reason of his or her nationality. strictly legal point of view, Mrs Kaur's The relationship which a national has with application does not seek recognition of a his or her State of origin in regard to rights right to move freely within Community territory but seeks rather to secure the right of entry and residence must therefore, in to reside within the territory of the Member principle, remain within that State's sphere State of which, according to that Member of competence. It follows that 'citizenship State's domestic law, she possesses a form of the Union' is relevant in the present case of nationality. only within the context of free movement between Member States. 17

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31. It follows from the facts established by Mrs Kaur does invoke the free movement the national court that, while not a 'British of persons within the Community — or, as citizen' under national law, Mrs Kaur does Article 8a(1) of the Treaty puts it, the right none the less have the status of a 'British to move and reside freely within the Overseas Citizen'. territory of the Member States — for the purpose of securing the right to reside in British territory. The applicant, who is presumed to be of British nationality, is physically present within that territory without anything to suggest that she has come from another Member State. The refusal by the British authorities to grant her leave to remain in the territory of the United Kingdom does not therefore in any way adversely affect freedom of movement within Community territory. The only cross-border element lies in the fact that 32. Two possibilities can thus be envisaged. Mrs Kaur comes from a non-member country, such that, with the exception of this extra-Community factor, all elements of the case in the main proceedings are internal to a single Member State.

37. The Court has clearly stated in this regard that a national of a non-member country 'may not effectively rely on the rules governing the free movement of persons ...' 22

38. Consequently, whether or not Mrs Kaur holds British nationality, Com- munity law — and in particular the free movement of persons linked to citizenship of the Union — appears to be manifestly 35. Second, if, as the United Kingdom inapplicable to a case such as that in the Government contends, Mrs Kaur does not main proceedings. hold British nationality for the purposes of application of the Treaty, it is common ground that she also does not hold the nationality of any other Member State. That being so, she must be regarded, under Community law, as being a national of a non-member country. 39. Regard being had to that conclusion, it 20 — For examples of situations purely internal to a Member is, as we have seen, unnecessary to reply to State in which the prospects of the situation developing externally were not considered to be sufficiently credible to the other questions. warrant the Court declaring Community law to be applicable, see Moser, cited above, paragraphs 17 and 18, and Höfner anã Eiser, cited above, paragraph 39. 21 — Point 3 of the order for reference. 22 — Awoyemi, cited above, paragraph 29.

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Conclusion

40. In light of those considerations, I propose that the Court reply as follows to the questions submitted by the High Court of Justice of England and Wales, Queens Bench Division (Crown Office):