| Return to Contents Deportation From Jersey - EC Law - Application And Meaning Of Article 4, Protocol 3 To The UK Act Of Accession To The European Communities Michael Birt, QC [Editorial Assistant: This note is written as an interim report on proceedings before the European Court of Justice in Roque v Lieutenant Governor of Jersey which took place on June 24th 1997. The case raises some interesting points in connection with Jersey’s immigration laws. The opinion of the Advocate General was delivered on September 23rd 1997. The judgment of the Court, which may or may not adopt the opinion of the Advocate General, is expected to be given some months thereafter.] Rui Alberto Pereira Roque v Lieutenant Governor of Jersey Royal Court/Court of Justice of the European Communities, Luxembourg. Nicholas Blake, QC, for Rui A.P. Roque ("the representor") Michael Birt, QC, Attorney General of Jersey for the Lieutenant Governor of Jersey Richard Plender, QC for the United Kingdom Nicholas Kahn for the European Commission M. Claude Chavance for the Republic of France
Relevant legislation Article 227(5)(c) of the EC Treaty provides - "[Notwithstanding the preceding paragraphs] this Treaty shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of the new Member States to the [European Economic Communities]." Those arrangements are contained in Protocol 3 to the United Kingdom’s Act of Accession to the European Communities. Article 4 of that Protocol provides - "The authorities of these territories shall apply the same treatment to all natural and legal persons of the Community." The relevant provisions of the Immigration Act 1971 [as extended to Jersey by the Immigration (Jersey) Order 1993], provide - "1.- (1) All those who are in this Act expressed to have the right of abode in the Bailiwick of Jersey shall be free to live in, and to come and go into and from, the Bailiwick of Jersey without let or hindrance except as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person."............. 2.-(1) A person is under this Act to have the right of abode in the Bailiwick of Jersey if - (a) he is a British citizen;............ 3.-(5) A person who is not a British citizen shall be liable to deportation from the Bailiwick of Jersey - (a) ....; (b) if the Lieutenant Governor deems his deportation to be conducive to the public good;" Background The representor, a Portuguese national resident in Jersey since 1992, commenced proceedings before the Royal Court for judicial review of the decision by the Lieutenant Governor of Jersey on December 22nd 1994, to deport him from Jersey, pursuant to section 3[5][b] of the Immigration Act 1971, following his conviction and sentence for a number of offences of larceny. The representor claimed that the Lieutenant Governor was precluded from deporting him, and by implication, any other national of a Member State, from Jersey because, under the Immigration Act 1971, as extended to Jersey, a British citizen cannot be deported from Jersey and Article 4 of Protocol 3 to the United Kingdom’s Act of Accession to the European Communities, requires that all natural and legal persons of the Community are to be treated equally by the authorities in Jersey. He further claimed that the Lieutenant Governor’s decision to deport him was unreasonable. The representor requested the Court to annul the deportation order and to suspend its operation pending the decision of the Court. The Royal Court, being satisfied that determination of the case required an interpretation of Community law, referred the following questions for the consideration of the Court of Justice of the European Communities for preliminary ruling, pursuant to Article 177 of the EC treaty - -
On the premise that British citizens are not liable to deportation from Jersey, does Article 4 of Protocol 3 have the effect that nationals of another Member State are equally not liable to be deported from Jersey? -
If the answer to the first question is "No", does the said Article prohibit the competent authorities in Jersey from deporting a national of another Member State save where such deportation is justified on grounds of public policy, public security or public health? -
If the answer to the second question is "Yes", does the said Article 4 prohibit the competent authorities of Jersey from deporting a national of another Member State where considerations of public policy applied by those authorities would not in practice lead to the deportation of that person from the United Kingdom? Brief summary of the written and oral submissions to the ECJ On the first question the representor submitted that the ct of Article 4 of Protocol 3 was to be interpreted in the light of the ECJ judgement in Department of Health and Social Security v Barr and Montrose Holdings Limited [1] as meaning that in matters which are governed by Community Law in Member States where the EC Treaty is fully applicable, the authorities in Jersey were obliged to afford equal treatment to all natural and legal persons of the Community. Deportation was a matter governed by Community Law in Member States and it followed that, so long as British citizens were not liable to deportation from Jersey, no national of another Member State was liable to deportation from Jersey. The representor submitted in relation to the second and third questions that matters of public policy had to be considered in Jersey in accordance with Community Law, that is, on the basis of the minimum procedures and criteria provided for in, and under, Article 48[3] of the EC Treaty. Community Law required the Jersey authorities to adopt the same criteria for deportations as the UK authorities in view of the effect of a Jersey deportation order on the rights of a national of a Member State to enter and remain in the UK. The Lieutenant Governor, supported by the UK Government, the European Commission and the French Government, submitted that the representor’s contention on the first question was wrong because a State could not, under international Law, deport its own nationals. The effect of interpreting the Court’s decision in Barr and Montrose Holdings in the way contended for by the representor would be to do what the Court in that case said should not be done, namely to use Article 4 to apply indirectly provisions of Community Law which did not fall within Protocol 3. The Lieutenant Governor further submitted that the representor’s contentions would put Jersey in a worse position than Member States where the EC Treaty was fully applicable. Member States were entitled to deport citizens of other Member States pursuant to Article 4 of the Treaty and Directive made thereunder. Bearing in mind the limited wording of Article 227[5][c] of the EC Treaty, Article 4 of Protocol 3 could not be interpreted as imposing on Jersey obligations which went beyond those to be found in the Treaty itself, i.e. a total prohibition on deportation of EU citizens. On the second question, the Lieutenant Governor submitted that the power to deport from Jersey was not limited to the grounds provided in Article 48 of the EC Treaty because that Article did not apply to Jersey under Protocol 3. The Lieutenant Governor submitted that the third question did not arise for decision, but if the court decided that the grounds on which deportation from Jersey could be ordered were only those under Article 48 of the EC Treaty, the Jersey authorities were not restricted to considering grounds which would justify the making of a deportation order in the United Kingdom. Considerations of public policy could vary depending on the circumstances of the place concerned and different considerations could apply in Jersey to those which applied in the UK. The Opinion of Advocate General La Pergola was delivered on 23rd September 1997. In summary, his opinion proposes that the ECJ should reply in the following terms to the questions posed by the Royal Court. Article 4 of Protocol 3 does not confer on citizens of a Member State other than the United Kingdom immunity from deportation from Jersey. However, such a citizen cannot be deported unless his continued presence in the Island constitutes a sufficiently serious threat to the fundamental interests of the Island such as public policy, public security and public health. Further, such a citizen is not precluded from deportation from Jersey on considerations of public policy which would not lead to his deportation from the United Kingdom, but a Jersey deportation order against such a citizen does not, in spite of the Immigration (Jersey) Order 1993, take effect outside the Island. Michael Birt QC is Her Majesty’s Attorney General for Jersey. | 