Return to Contents

The Rights Of European Citizens In Jersey

Richard Plender QC

On 16th July 1998 the Court of Justice of the European Communities gave its judgment in the first case referred to it by the Royal Court of Jersey [1] . It concerned the interpretation of a deceptively simple provision in the Protocol governing the relations between the Community and the Channel Islands and the Isle of Man: Article 4 of Protocol No 3 to the Act of Accession of the United Kingdom to the European Communities [2] . That Article sets out the duty of the insular authorities to refrain from discrimination. It reads as follows:

"The authorities of these territories shall apply the same treatment to all natural and legal persons of the Community".

Of the many questions which have been raised by that provision over the last twenty-five years, the most recurrent concerns its scope. What are the matters in respect of which the insular authorities must apply the same treatment to nationals of all Member States? In particular, is a citizen of a Member State other than the United Kingdom entitled to enter any of the islands free of immigration control and to remain immune from deportation there, following his conviction, on the premise that British citizens are not subject to immigration control on the islands nor subject to deportation there?

Protocol No 3 to the United Kingdom’s Act of Accession is to be read in the light of Article 227(5)(c) of the Act itself. This provides, inter alia, that the E.C. Treaty shall:

"apply to the Channel Islands and to 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 ... signed on 22nd January 1972".

The premise, therefore, is that Community law is inapplicable to the islands, save to the extent necessary to ensure the implementation of Protocol No 3. Apart from the rule on non-discrimination, laid down in Article 4, that Protocol provides essentially that the Community’s rules on customs matters are to be applied to the islands [3] ; that the islands shall apply the same levies as are imposed in the mainland of the United Kingdom, pursuant to Community law, on imports of agricultural products from outside the Community [4] ; that the provisions of the Euratom Treaty governing persons and undertakings shall apply in the islands [5] ; that the rights of Channel Islanders and Manxmen [6] in the United Kingdom shall be unaffected by Accession; and that

"such persons shall not benefit from Community provisions relating to the free movement of persons and services" [7] .

The facts

Pereira Rui Roque is a Portuguese national, born in Madeira in 1974. On 18th February 1992 he arrived in Jersey, shortly after the expiry of the transitional provisions that applied following Portuguese accession to the Communities. Those provisions had hitherto restricted the rights of free movement enjoyed by Portuguese nationals pursuant to European Community law [8] . Rui Roque was admitted to the island without restriction. Thereafter he was employed on casual seasonal work in the tourist industry.

In October 1993, while employed as a hotel night porter, he stole some £1,300 in cash and other items from the hotel where he worked. He was convicted of larceny, placed on probation for one year and required to complete 80 hours of community service. He was later given a written warning from the immigration service that a recommendation for his deportation could be made if he were convicted of a further offence in the Bailiwick.

In June 1994, while employed as a hotel porter, he admitted the theft of a holdall with its contents valued at £800. Further enquiries revealed that he had also stolen a camera and lens valued at £1,500 and a video camera valued at £1,100. He was convicted on three counts of larceny and for breach of his probation order. The court sentenced him to fourteen weeks’ imprisonment. After considering submissions made on his behalf and reports about him submitted by the authorities in Jersey and in Madeira, the Chief Inspector of Immigration recommended his deportation. The Lieutenant Governor made a deportation order
[9] against Rui Roque shortly before Christmas 1994, requiring him to depart by 4th January 1995.

Shortly before that date Rui Roque began proceedings in the Royal Court contending that the order was inconsistent with the insular authorities’ obligations under Community law. After three hearings, the Royal Court decided to refer three questions to the European Court for preliminary ruling and stayed the implementation of the deportation order pending the European Court’s response.

Domestic legislation

For a proper understanding of the issues of Community law raised in the case it is first necessary to have in mind the relevant statutory rules applicable in Jersey and the rules of practice followed by the Royal Court.

Pursuant to the British Nationality Act, 1981, "the United Kingdom" includes the Channel Islands [10] . It follows that a person born in Jersey, and the child of a person thus born, obtains British citizenship in the circumstances in which a person born in the mainland of the United Kingdom, and the child of such a person, would obtain British citizenship. Immigration control is not imposed on travel between the mainland of the United Kingdom and Jersey. The Channel Islands, the United Kingdom and the Republic of Ireland form the "common travel area" as defined in Section 1(3) of the Immigration Act, 1971 within which no systematic control of immigration is practised.

The principal provisions of the Immigration Acts of 1971 and 1988 were extended to the Bailiwick of Jersey by an Order in Council entitled the Immigration (Jersey) Order 1993. The rights of Community nationals to enter or remain in Jersey are governed by section 7(1) of the 1988 Act which states:

"A person shall not under the principal Act [11] require leave to enter or remain in the Bailiwick of Jersey in circumstances in which he would be entitled to enter or remain in the United Kingdom by virtue of an enforceable Community right ..."

Section 3(5) of the 1971 Act provides, inter alia, as follows:

"A person who is not a British citizen shall be liable to deportation from the Bailiwick of Jersey;

...

(b) if the Lieutenant Governor deems his deportation to be conducive to the public good;"

Section 5(1) of the 1971 Act further provides that:

"Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act, the Lieutenant Governor may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the Bailiwick of Jersey ..."

The effect of a deportation order made in Jersey may be confined to the Bailiwick itself, so that the person thereby deported from the Bailiwick would not be excluded from the United Kingdom, Guernsey and the Isle of Man. Paragraph 3(2) of Schedule 4 to the 1971 Act as applied in the United Kingdom empowers the Secretary of State to direct that a deportation order made in Jersey, Guernsey or the Isle of Man shall not exclude the person affected from the United Kingdom [12] .

British citizens have the right of abode in Jersey: they may not be deported from the Bailiwick [13] . However, Jersey’s criminal courts do have power, when a person is convicted of an offence, to ask that person to agree to being bound over to leave the Bailiwick for a specific period, usually for three years. That power may be employed against offenders of any nationality, including British citizens. Normally a person is bound over to leave only when no other punishment has been inflicted for the offence in question; but a binding over order is occasionally used in conjunction with other sanctions [14] . If a person refuses to be bound over, or if he returns to Jersey whilst the order is still in force, a penalty may be imposed in respect of the offence for which he was originally bound over. During the period from January 1994 to April 1996, some 87 binding over orders were made. Most were against British citizens. Such orders were imposed on 17 or 18 defendants convicted of larceny during the period 1 January 1994 to 9 April 1996.

The first question: the scope of Article 4

By the first question the Royal Court asked:

"On the premise that British citizens are not liable to immigration control in, or to be deported from Jersey, does Article 4 of the third Protocol to the Act of Accession of the United Kingdom to the European Communities have the effect that nationals of another Member State are equally not liable to be deported from Jersey?"

Throughout the hearing of the case, both in the Royal Court and in the Court of Justice, it was common ground that the duty to apply the same treatment to "all natural and legal persons of the Community" amounted to a duty to refrain from discrimination between any of those who are now known as "citizens of the Union", including British citizens. These words did not merely convey a duty to treat equally nationals of Member States other than the United Kingdom. That interpretation is supported by sources that may be traced back to the earliest days of the United Kingdom’s membership of the Community. In his book on the accession of the United Kingdom and other States, J.-P. Puissochet, who was at that time legal adviser at the Quai d’Orsay and is now judge of the European Court, wrote:

"L’article 4 du protocole contient une clause générale de non discrimination. Sa formulation étant absolue, il semble que les autorités des îles ne puissent notamment traîter de façon plus défavorable que celle dont ils traîtent les ressortissants du Royaume-Uni" [15] .

The correctness of that view had been confirmed by the European Court before the judgment in Rui Roque [16] .

Given that premise, the case for the Representor on the first question referred to the Court of Justice lacked nothing in simplicity. The contention was that by maintaining in force legislation whereby a Portuguese national could be deported whereas a British citizen could not, the insular authorities failed to apply the same treatment to all legal persons of the Community. Those acting for Rui Roque naturally contended that the duty to refrain from discrimination applied in the particular context of immigration control. They relied on a dictum of the European Court in Case C-355, Department of Health and Social Security v Christopher Stewart Barr and Montrose Holdings Limited [17] . In that case the European Court, while giving a ruling in favour of the submissions of the United Kingdom, added the following qualification:

"However, contrary to the view taken by the United Kingdom, the principle of equal treatment laid down by Article 4 of Protocol No 3 is not limited exclusively to the matters governed by Community rules which are referred to in Article 1 [18] of that protocol. Article 1 relates to free movement of goods whilst Article 4 applies to natural and legal persons. Article 4 must therefore be regarded as an independent provision so far as its scope is concerned. It must be interpreted as precluding any discrimination between natural and legal persons from the Member States in relation to situations which, in territories where the Treaty is fully applicable, are governed by Community law" [19] .

While the Representor’s argument in the case of Rui Roque had the merit of simplicity, and of conformity with the ipsissima verba of the Court of Justice in the case of Barr and Montrose Holdings, it was open to some practical objections. If the insular authorities were bound to treat nationals of all Member States equally with British citizens in respect of admission and residence, nationals of other Member States would have greater rights in the islands than in "the territories where the Treaty is fully applicable". For instance, they would not be amenable to deportation from Jersey for reasons of public health, security and public order, whereas in territories where the Treaty is fully applicable, they could be deported for such reasons [20] . The situation would be all the more egregious since in territories where the Treaty is fully applicable, Channel Islanders and Manxmen do not benefit from Community provisions relating to the free movement of persons at all.

In anticipation of such objections, counsel for Rui Roque contended that his argument did not imply that the islands must be open to entry and residence by all nationals of all Member States, irrespective of conviction of criminal offences: it was open to the insular authorities to impose those controls equally on all, including British citizens not being Channel Islanders. If the insular authorities chose to confer privileges on British citizens from the mainland, they were bound to confer similar privileges on nationals of other Member States, provided only that the situation was one which, in the territories where the Treaty is fully applicable, is governed by Community law.

Even so, the Representor’s arguments presented difficulties. The proposition that the insular authorities could restrict the residence of persons not being Channel Islanders amounted to a submission that they could restrict the admission of the greater part of the population of the islands, and subject the same persons to the possibility of deportation. That is so since the term "Channel islander" is defined narrowly, so as to exclude in particular anyone who has at any time been ordinarily resident in the United Kingdom for five years [21] . Moreover, the imposition of systematic immigration controls on the movement of nationals between one part of their State and another must, on any view, be regarded as exceptional [22] . There are suggestions that such action might be inconsistent with international standards [23] .

The Court of Justice has itself recognised that a Member State is precluded from imposing immigration controls upon its own nationals [24], so that a difference in treatment between a Member State’s own nationals and nationals of other Member States, in respect of admission or deportation, does not contravene the prohibition of discrimination applied in territories where Community law is fully applicable. In Case 41/74, Yvonne Van Duyn v Home Office [25] the Court acknowledged that:

"It is a principle of international law, which the EEC Treaty cannot be assumed to disregard in the relations between Member States, that a State is precluded from refusing its own nationals the right of entry and residence.

It follows that a Member State, for reasons of public policy can, where it deems necessary, refuse a national of another Member State, the benefit of the principle of freedom of movement for workers in a case where such a national proposes to take up a particular offer of employment even though the Member State does not place a similar restriction upon its own nationals."

In Adoui and Cornuaille v Belgium [26] it restated that proposition as follows:

"The reservations contained in Articles 48 and 56 of the EEC Treaty permit Member States to adopt, with respect to the nationals of other Member States and on the grounds specified in those provisions, in particular grounds justified by the requirements of public policy, measures which they cannot apply to their own nationals, inasmuch as they have no authority to expel the latter from the national territory or deny them access thereto ..."

In view of these considerations and authorities, neither the Advocate General nor the Court of Justice accepted the case for the Representor on the first question in Rui Roque. The Advocate General, Mr La Pergola, gave as his Opinion on 23rd September 1997 that

"Article 4 of Protocol No 3 to the Act of Accession of the United Kingdom to the European Communities does not confer on citizens of a Member State other than the United Kingdom immunity from deportation from the territory of the Bailiwick of Jersey, notwithstanding that British citizens are not subject to immigration controls in that territory or liable to be deported from it".

The Court of Justice ruled, on 16th July 1998, that

"The rule on equal treatment set out in Article 4 of Protocol No 3 on the Channel islands and the Isle of Man ... does not have the effect of prohibiting the deportation from Jersey of nationals of a Member State other than the United Kingdom, even though British citizens, including those who are not Channel islanders within the meaning of Article 6 of Protocol No 3, are not liable to be deported from Jersey".

On that point, the ruling is to be explained on the ground that the duty to treat natural and legal persons from the Community on the basis of equality is not infringed where the difference in treatment arises from the fact that a Member State’s citizens have an unqualified right of residence whereas those from other Member States have a right of residence only in accordance with Community rules. The reasoning by which the Court reached its result is consistent with reasoning that it has applied elsewhere when dealing with the principle of equality or non-discrimination. According to well-established jurisprudence, the obligation to refrain from discrimination entails to the obligation to treat comparable situations in the same way and non-comparable situations differently [27] . As the Court of Justice has itself stated: [28]

"... no discrimination can arise in legal situations which are not comparable."

In its ruling in the Rui Roque case the Court reasons, essentially, that there is no discrimination when a Portuguese national is treated less favourably in Jersey than a British citizen, in respect of admission or residence, since in respect of those matters the situations of the Portuguese and British citizens are not comparable.

While the first part of the Court’s ruling in Rui Roque assuages the worst fears instilled by the passage in the Court’s judgment in Barr and Montrose Holdings on which the Representor had relied, it leaves intact the dictum in that case. In Barr and Montrose Holdings it was not strictly necessary for the Court to assert that Article 4 of Protocol No 3 prohibits discrimination in relation to all those situations which, in territories where the Treaty is fully applicable, are governed by Community law. That case concerned the compatibility with Community law of legislation in the Isle of Man which restricted access to employment by all persons who were not Manxmen. The litigant complaining of the legislation was himself a British citizen. It would have been sufficient to note that the Manx legislation gave rise to no discrimination on ground of nationality at all. The court was apparently concerned that the authorities in one of the islands might, at some future date, have wished to discriminate in favour of British citizens in respect of employment. Although this sentiment is entirely comprehensible, the final words in that passage from the judgment in Stewart Barr and Montrose Holdings appeared on their face to go very far.

It now appears from Rui Roque that although the situation of a migrant worker facing deportation is one in which the insular authorities must apply the principle of non-discrimination, a different in treatment as between a national of another Member State and a British citizen in this situation does not constitute a violation of the insular authorities’ duty to refrain from discrimination. Since there has never been any question of discriminating between nationals of Member States other than the United Kingdom, in respect of admission to the islands and residence there, the practical effect of the Court’s ruling is similar to the effect that would have been achieved had it ruled that the principle of non-discrimination does not apply in respect of these matters.

Immigration control is not, however, the only matter which might be affected by the European Court’s dictum in Barr and Montrose Holdings. On its face, that dictum appears to imply that the insular authorities must refrain from drawing distinctions between persons established in the United Kingdom and those established elsewhere in the Community, in respect of any of the situations governed by Community law in the territories of the Member States, even though in the territories where Community law is fully applicable, Member States are permitted to draw such distinctions in accordance with explicit rules of Community law (inapplicable to the islands). It remains to be determined whether the insular authorities must recognize professional qualifications awarded in Member States other than the United Kingdom as though these were qualifications awarded there; or whether they must give the same manner and degree of protection to patents granted elsewhere in the Community as they would give to those granted in the United Kingdom; or whether they should recognize banking and insurance undertakings established in other Member States as though they were established in the United Kingdom. We have not heard the last of the European Court’s dictum in Barr and Montrose Holdings.

The second question: public order, public security and public health

By its second question, the Royal Court asked:

"If the answer to the first question is "No", does the said Article 4 prohibit the competent authorities in Jersey from deporting a national of another Member State save where such deportation is justified on ground of public policy, public security or public health?"

The question enquires, essentially, whether Article 4 of Protocol No 3 is to be interpreted as limiting the reasons for which a national of a Member State other than the United Kingdom may be deported from Jersey, to those justified on grounds of public policy, public security or public health.

Those acting for the Representor contended that even if nationals of other Member States were not immune from deportation from Jersey, they may not be removed or deported from the island other than in circumstances in which they could in conformity with Community law be deported from the mainland of the United Kingdom. They argued that the effect of a deportation order made in Jersey would be to exclude him from the whole of the common travel area, comprising the United Kingdom, the Isle of Man and the Republic of Ireland. Those acting for the United Kingdom and the Lieutenant Governor [29] emphasised that a deportation order made in Jersey does not necessarily have the effect of excluding the person concerned from the United Kingdom and the rest of the common travel area [30] . They contended, however, that on the assumption that some limitation is placed upon the competence of the Jersey authorities to deport nationals from other Member States, the restrictions placed upon the insular authorities’ power to deport a national from another Member State may not be greater than those placed upon the authorities of a Member State in territories where the provisions of the Treaty are fully applicable.

The Representor’s arguments appealed to the Advocate General, Mr La Pergola, who gave it as his Opinion that

"Article 4 of Protocol No 3 does however preclude the competent Jersey authorities from deporting a citizen of a Member State other than the United Kingdom from Jersey unless that person’s continued presence in the territory of the Bailiwick constitutes a genuine and sufficiently serious threat to its fundamental interests, such as those relating to public policy, public security or public health".

It is not unreasonable to suppose that the length of the European Court’s deliberation in this case - which extended to well over a year from the date of the hearing - was due in part to the difficulty that the Court encountered when addressing this issue. In the event, the Court did not follow the Advocate General. It recalled that by virtue of Article 227(5)(c) of the Treaty and Protocol No 3, the provisions on freedom of movement for workers do not apply in the territories of the Channel Islands. Moreover the Court itself had stated, in Barr and Montrose Holdings that

""... the rule laid down in Article 4 of Protocol No 3 cannot be interpreted in such a way as to be used as an indirect means of applying on the territory of the Isle of Man provisions of Community law which are not applicable there by virtue of Article 227(5)(c) of the EEC Treaty and Article 1 of Protocol No.3, such as the rules on the free movement of workers."

Accordingly, the Court concluded that neither Article 48(3) of the Treaty nor the provisions of Council Directive 64/221/EEC of 15th February 1964 determine the grounds on which the Jersey authorities may make a deportation order against a national of another Member State.

It added, however, that the rule on equal treatment laid down by Article 4 of Protocol No 3 prohibits the Jersey authorities from basing the exercise of their powers on factors which would have the effect of applying an arbitrary distinction to the detriment of nationals of other Member States. Such an arbitrary distinction would be applied if a deportation order were made against a national of another Member State on the basis of an assessment of conduct which, when attributable to the nationals of the first State, does not give rise to repressive measures or other genuine and effective measures intended to combat such conduct [31] . The formal ruling was expressed as follows:

"The answer to the second question must therefore be that Article 4 of Protocol No 3 is not to be interpreted as limiting the reasons for which a national of a Member State other than the United Kingdom may be deported from Jersey to those justified on grounds of public policy, public security or public health, laid down by Article 48(3) of the Treaty and set out in detail by Directive 64/221. Article 4 of Protocol No 3 does, however, prohibit the Jersey authorities from making a deportation order against a national of another Member State by reason of conduct which, when attributable to citizens of the United Kingdom, does not give rise on the part of the Jersey authorities to repressive measures or other genuine and effective measures intended to combat such conduct."

In referring to "repressive measures or other genuine and effective measures intended to combat such conduct" the Court quoted directly from its previous ruling in Adoui and Cornuaille [32] . That case concerned the permissibility of deporting from Belgium two young women, apparently engaged in prostitution. This is not itself an offence against Belgian law but is subject, in that country as in the United Kingdom, to a number of measures designed to discourage its practice and to punish those associated with it. In that case the Court of Justice had stated [33] :

"... Although Community law does not impose upon the Member States uniform scale of values as regards the assessment of conduct which may be considered as contrary to public policy, it should nevertheless be stated that conduct may not be considered as being of a sufficiently serious nature to justify restrictions on the admission to or residence within the territory of a Member State of a national of another Member State in a case where the former Member State does not adopt, with respect to the same conduct on the part of its own nationals repressive measures or other genuine or effective measures intended to combat such conduct."

The expression "repressive measures", transliterated from the French mesures repressives, indicates that the insular authorities, like those of a Member State, may be entitled to deport from their territories a national of another Member State whose activities are discouraged by specific public action, even if they are not actually criminal.

It follows from the Court’s ruling in Rui Roque, read in the light of its antecedent, that in the case of Jersey, a comparison must be made between a deportation order and the measures to which the same type of conduct gives rise on the part of a British citizen. The question for the Royal Court, on the return of the reference, was whether a British citizen, either from the island or from the mainland, is subjected to "repressive measures or other genuine and effective measures intended to combat ... conduct" of the kind for which Rui Roque was ordered to be deported. The European Court had before it evidence of just that matter: British citizens, convicted of similar offences, were liable to imprisonment and in appropriate cases (particularly not exclusively when coming from the mainland) they were liable to be made subject to binding over orders.

There can be no doubt that these orders amount to "repressive measures or other genuine and effective measures intended to combat such conduct". In Case 175/78 Saunders [34] Mr Advocate General Warner recognized the "affinity" that may exist between a binding over order and a deportation. The Advocate General referred to a criminal case [35] before an English magistrates court where the Italian defendant was recommended to be deported following his conviction of shoplifting and indecent exposure, owing to the fact that the magistrates court had no jurisdiction to impose a binding over order [36] . The use of binding over orders in relation to British citizens illustrates the fact, derived from constitutional law, that a Member State may not as a rule deport or refuse to admit one of its own nationals, so that the situation of a State’s own national is not comparable in this respect with that of a national of another Member State.

The third question: effects of Jersey orders in the United Kingdom

By its third question the Royal Court asked:

"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 from Jersey where the considerations of public policy applied by those authorities would not in practice lead to the deportation of that person from the United Kingdom?"

That question was framed to address the argument, advanced on behalf of the Representor, that the considerations of public policy applied by the insular authorities must be no different from those applied in the mainland of the United Kingdom. In this context those acting for the Representor relied on a well-known passage in the ruling of the Court of Justice in Case 30/77, R v Bouchereau [37], where the Court reiterated its earlier ruling in Case 36/75, Rutili v Minister of the Interior [38] and added:

"In so far as it may justify certain restrictions on the free movement of persons subject to Community law, recourse by a national authority to the concepts of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to one of the fundamental interests of society."

The offences of which Rui Roque had been convicted (it was said) were not of such gravity as to pose a sufficiently serious threat to one of the fundamental interests of society; and they would not be so regarded in England.

Now, as a matter of Community law, it is clear that the expression "public policy" is not objective, in the sense that the circumstances warranting recourse to the concept are identical throughout the Member States. The converse was indeed argued by the Commission in Case 41/74, Yvonne Van Duyn v Home Office but Mr Advocate General Mayras responded as follows: [39]

"I do not think, contrary to the opinion of the Commission, that it is possible to deduce a Community concept of public security. The concept remains, at least for the present, national, and this conforms with reality, inasmuch as the requirements of public security vary, in time and in space, from one State to another.

...

As I have said, the provision relating to public policy and particularly to public security has the effect of maintaining the competence of the Member States in this area, subject to the obligation that measures of public security must be justified by the public conduct of those concerned.

But Member States retain, as regards both assessment of the threat to their security and the choice of measures to counteract such a threat, a power the exercise of which does not cast doubt upon the principle of equality of treatment, unless, of course, they misuse this power by exercising it for an improper purpose such as economic protection."

The Court of Justice followed the Advocate General’s Opinion, stating [40] :

"the particular circumstances justifying recourse to the concept of public policy may vary from one country to another and from one period to another".

In Case 36/75, Roland Rutili v Minister for the Interior [41], the Court repeated its assertion that the concept of public policy falls to be determined by the Member State concerned, stating:

"By virtue of the reservation contained in Article 48(3), Member States continue to be, in principle, free to determine the requirements of public policy in the light of national needs."

The same sentiment is expressed in Joined Cases 115 and 116/81, Adoui and Cornuaille v Belgium [42] .

Since considerations of public policy may vary from one Member State to another (and from one point in time to another) it would be a small step to acknowledge that the considerations of public policy applicable in the mainland of the United Kingdom need not be identical to those in Jersey. The correct approach, it is thought, is as follows. In assessing whether the continued residence of a particular person constitutes a threat to the society in which he is present, the national or local court must have regard to the nature of that society. The relevant society may (according to the circumstances) be national or more localised. Accordingly, in assessing the effect of the continued residence of an alien in Jersey regard must be had to the specific nature and circumstances of the island. The size of the community, prevailing attitudes towards theft there and the importance of the reputation for probity in the island’s tourist industry might lead the Royal Court to come to appraise the threat of petty larceny from an hotel rather differently from the way in which a court in London might appraise the threat of similar theft. It could not therefore be assumed that the standard to be applied in the West End of London must be identical to that to be applied in St Helier.

Even so, there was a separate factor which strengthened the Representor’s case. The deportation order made in Jersey against Rui Roque was expressed so as to exclude him from the whole of the common travel area, comprising the United Kingdom, the Isle of Man and the Republic of Ireland. Upon any view, it could not be right to exclude a person from the whole of the common travel area on the basis of considerations which would not have lead an English, Welsh, Scottish or Irish court to conclude that the person concerned presented a genuine and sufficiently serious threat to one of the fundamental interests of society, so as to warrant curtailment of his rights of residence under Community law.

Indeed, the United Kingdom accepted that it could not be right to do so; and that if there were any indication that Rui Roque wished to avail himself of his right to enter and reside in the United Kingdom, for the purposes intended by Community law, the Home Secretary would consider making use of his powers to confine the deportation order to the Bailiwick itself (or to the two Bailiwicks, if exclusion from Guernsey appeared appropriate) [43] .

The point clearly interested the Court of Justice, for it chose to make observations on the issue, even though the Royal Court’s third question called for an answer only if the second question were answered affirmatively (which was not the case); even though any effect of the order in the mainland of the United Kingdom was not a matter with which the Royal Court was concerned, and accordingly not one on which the Royal Court required the European Court’s guidance; and even though all parties agreed that an order made on the basis of considerations local to Jersey could not affect the rights of a citizen of the Union on the mainland of the United Kingdom.

The Court of Justice observed that Schedule 4 to the Immigration Act 1971 provides that a deportation order made by the Channel Island authorities also takes effect in the territory of the United Kingdom, save where, in an individual case, the Secretary of State expressly decides to limit its effects to the territory of those islands. It stated that in so far as the Channel Island authorities may, in order to deport a national of another Member State, rely on reasons and considerations other than those laid down by Community law, the extension of the effects of a deportation order to the territory of the United Kingdom might have the indirect consequence of making the provisions of Community law on freedom of movement for persons no longer fully applicable there.

The Court of Justice then stated:

"It is clear from Article 227(5)(c) of the Treaty and Protocol No 3 that those provisions are not intended to affect provisions of Community law concerning, in particular, the free movement of nationals of other Member States in the territory of the United Kingdom. They cannot therefore be interpreted in such a way that, as a result of the system they establish, the rights of nationals of other Member States would be weakened as regards entry to and residence in the territory of the United Kingdom."

On that point the Court is plainly right. It is indeed "clear" - indeed it is obvious - that Article 227(5)(c) of the Treaty and Protocol No 3 cannot be interpreted so as to weaken the rights conferred by Community law on nationals of other Member States as regards entry to and residence in the territory of the United Kingdom. It is another matter to determine whether current administrative arrangements on the mainland of the United Kingdom are sufficient to ensure that the rights of nationals of other Member States in that country are not weakened.

There is reason to believe that those arrangements are not adequate. Where a deportation order is made in either of the Bailiwicks, or in the Isle of Man, in a form which requires the person concerned to remain outside the common travel area, the rights that the subject of the order may have under Community law may be insufficiently protected by the system in force whereby the order may be qualified, upon application, so as to confine its effects to the Channel Islands alone, or to either of the jurisdictions there. The form of the order is liable to deter the person from exercising his rights in the United Kingdom. In Case 167/73, Commission v French Republic [44] the Court of Justice held that France was in default of its obligations under the EC Treaty where it maintained in force certain discriminatory statutory provisions but refrained from applying them to the detriment of nationals of other Member States, exercising their rights to freedom of movement under Article 48 of the EC Treaty and Regulation 1612/68 of 15th October 1968. In the Court’s words:

"although the objective legal position is clear, namely that Article 48 and Regulation No 1612/68 are directly applicable in the territory of the French Republic, nevertheless the maintenance in these circumstances of the wording of the Code du Travail Maritime gives rise to an ambiguous state of affairs by maintaining, as regards those subject to the law who are concerned, a state of uncertainty as to the possibilities available to them of relying on Community law."

In the same way, the wording of a deportation order, made in Jersey on the basis of reasons and considerations other than those laid down by Community law, can give rise to a state of uncertainty on the part of the person to whom it is addressed by implying that a limitation has been placed on his rights under Community law elsewhere in the United Kingdom.

The case of Rui Roque has drawn attention to the necessity of avoiding this state of affairs. The best course, it is thought, is to separate the islands’ decision-making and appellate procedures from those of the remainder of the common travel area. A deportation order made by the Lieutenant Governor would require the person concerned to depart from and remain outside the Bailiwick; the authorities of the remaining parts of the common travel area would decide whether the order should be extended to their jurisdictions, either on the basis of rules of Community law, where these are applicable, or on the basis of other considerations, subject only to the modest restrictions implied by Article 227(5)(c) of the Treaty and Protocol No 3. Unless some such steps are taken, we will have reason to expect an early sequel to the case of Rui Roque.

Richard Plender QC, who is a specialist legal adviser to the States of Jersey on European Community law, represented the United Kingdom in this case.

Footnotes - (Top)

[1] - For further information concerning the constitutional status of Jersey, see The Minquiers and Ecrehos Case (1953) I.C.J. Rep. 47, and Boid, Constitutional History of Jersey.

[2] - Act concerning the Conditions of Accession of the United Kingdom, Denmark and Ireland to the European Communities, 22nd January 1997, Protocol No 3 on the Channel Islands and the Isle of Man, Article 4.

[3] - Article 1 (1).

[4] - Article 1 (2).

[5] - Article 3.

[6] - By Article 6, read in the light of the United Kingdom's Declaration following the entry "any [British citizen] who holds that citizen ship by virtue of the fact that he, a parent or a person shall not for this purpose be regarded as a Channel Islander or Manxman if he, a parent or grandparent was born, adopted, naturalised or registered in the United Kingdom. Nor shall he be so regarded if he has at any time been ordinarily resident in the United Kingdom for the five years."

[7] - Article 2.

[8] - The basic instrument governing those rights is Council Regulation 1612/68 of 15th October 1968, O.J. Sp. Ed. 1968 475, as amended. Article 221 of the Act of Accession of Portugal to the European Communities suspended, until 1st January 1993, the application of Council Regulation 1612/68 in the case of a Portuguese national seekinging employment in another Member state. By virtue of Council regulation 2194/91 of 25th June 1991, O.J. 1991 L206/1, the date of expiry was advanced to 1st January 1992.

[9] - The order was made persuant to section 3 (5) (b) of the Immigration Act 1971 as extended to Jersey by the Immigration (Jersey) Order 1993.

[10] - See section 50 of the British Nationality Act, 1981 which provides, inter alia, as follows:

"the Islands" means the Channel Islands and the Isle of Man

...

"the United Kingdom" means Great Britain, Northern Ireland and the Islands taken together.

[11] - Namely, the Immigration Act, 1971; see section 12 (2) of the Immigration Act, 1988.

[12] - See also corresponding provisions contained in paragraph 3 (2) of Schedule 4 to the 1971 Act as applied in Guernsey, the Isle of Man and Jersey.

[13] - By virtue of section 2 of the Immigration Act 1971 which provides, inter alia, as follows:

"2. Statement of right of abode in the United Kingdom

(1) A person is under this Act is to have the right to abode in the United Kingdom is-

(a) he is a British citizen;"

[14] - For example, in a case where a person has committed numerous offences, he may be imprisoned in respect of some of the offences he has committed, but bound over to have the Bailiwick upon his release from prison.

[15] - L'élargissement des Communautés européens, 1974 page 238.

[16] - Case C-355, Department of Health and Social Security v Christopher Stewart Barr and Montrose Holdings Limited, [1991] E.C.R. I-3479.

[17] - [1991] E.C.R. I-3479.

[18] - In fact, the United Kingdom's submission was that Article 4 obliges the insular authorities to treat nationals of all Member States equally in respect of all those matters identified in Protocol No 3 (being matters in respect of which Community law applies to the islands). Of these however the matters set out in Article 1 are by far the most significant.

[19] - Paragraph 17, pages 3502-3.

[20] - Council Directive 64/221/EEC of 15th February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, O.J. Sp. Ed. 1963-64, 117.

[21] - See footnote 6 above.

[22] - It is true, however, that restrictions on movement may be imposed in individual cases such as in suspected cases of terrorism as was formerly the case in the United Kingdom, persuant to the Prevention of Terrorism (Temporary Provisions) Acts. Moreover, in the United Kingdom, as in Jersey, there is the power to ask a person to agree to be bounf over to leave a particular part of the terriroty of the United Kingdom and not to return for a specified period. The Court of Justice will be aware of such a procedure in the light of Case 175/78, R v Vera Ann Saunders, [1979] E.C.R. 1129. That case concerned a binding over order made in respect of a defendant charged with theft providing that the said defendant should proceed to Northern Ireland and not return to England and Wales for a period of three years.

[23] - See Article 3 (2) of the Fourth Protocol to the European Convention on Human Rights, Strasbourg, 16 September 1963, 58 A.J.I.L. (1964) 334 which guarantees the right of a national to enter and reside in the territory of his State; see also Article 5 (4) which provides that " the territory of any State to which this Protocol applies by virtue of ratification or acceptance by that State under this Article, shall be treated as separate territories...".

[24] - See Case 41/74, Yvonne Van Duyn v Home Office, [1974] E.C.R. 1337. See also Joined Cases 115 and 116/81, Adoui v Cornuaille, [1982] E.C.R. 1665; Case C-370/90, R v Immigration Appeal Tribunal and Surinder Singh ex parte Home Secretary, [1992] E.C.R. I-4265; Joined Cases C-65/95 and C-111/95, Shingara and Radiom, [1997] E.C.R. I-3343.

[25] - [1974] E.C.R. 1337 at 1351, paragraphs 22 and 23.

[26] - At page 1707, paragraph 7 of the judgement; see also the Opinion of Mr Advocate General Mayras in Case 36/75, Rutili v Minster for the Interior, [1975] E.C.R. 1219 at 1245.

[27] - See, for example Case 6/71, Rheinmuhlen Dusseldorf v Einfuhr und Vorratsstelle fur Getreide und Futtermittel, [1971] E.C.R. 823 at page 838, paragraph 16; Case 79/77, Firma Kulhaus Zentrum AG v Hauptzollant Hamburg-Harburg, [1978] E.C.R. 611 at page 519-620, paragraph 8.

[28] - See Case 22/78, Fonds nationale de retraite des ouviers mineurs v Giovanni Mura, [1977] E.C.R. 1699, paragraph 9.

[29] - See paragraph 30 of the Order for Reference.

[30] - Persuant to paragraph 3 (2) of Schedule 3 to the Immigration Act 1971, as applied in the United Kingdom, the Secretary of State may direct that a deportation order made in Jersey shall not operate so as to exclude the person concerned from the United Kingdom.

[31] - See, Joined Cases 115 and 116/81, Adoui v Cornuaille, [1982] E.C.R. 1665 paragraph 7.

[32] - Joined Cases 115 and 116/81, Adoui v Cornuaille, [1982] E.C.R. 1665.

[33] - At pages 1707-1708, paragraph 8 of its judgement.

[34] - [1979] E.C.R. 1129 at 1139.

[35] - R v Secchi, [1975] 1 C.M.L.R. 383.

[36] - According to the view of the United Kingdom in Case 175/178, R v Vera Ann Saunders, [1979] E.C.R. 1129 at 1140.

[37] - [1977] E.C.R. 1999 at 2012 and 2014.

[38] - [1975] E.C.R. 1219, paragraph 28 of the judgment as follows:

"Accordingly, restrictions cannot be imposed on the right of a national of any Member State to enter the territory of another Member State, to stay there and to move within unless his presence or conduct there constitutes a genuine and sufficiently serious threat to the public policy"

[39] - [1974] E.C.R. 1337 at 1359.

[40] - At paragraph 18.

[41] - [1975] E.C.R. 1219 at 1231, paragraphs 26 to 28.

[42] - Supra, text at note 33.

[43] - see paragraph 3 (2) of Schedule 4 to the 1971 Act as applied in the United Kingdom which empowers the Secretary of State to direct that a deportation order made in Jersey, Guernsey or the Isle of Man shall not exclude the person affected from the United Kingdom; see also corresponding provisions contained in paragraph 3 (2) of Schedule 4 to the 1971 Act as applied in Guernsey, the Isle of Man and Jersey.

[44] - [1974] E.C.R. 358 at 372, paragraph 41.