Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT

16 July 1998 (1)

(Free movement of persons - Act of Accession 1972 - Protocol No 3 concerning the Channel Islands and the Isle of Man - Jersey)

In Case C-171/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the Royal Court of Jersey for a preliminary ruling in the proceedings pending before that court between

Rui Alberto Pereira Roque

and

His Excellency the Lieutenant Governor of Jersey

on the interpretation of Article 4 of Protocol No 3 on the Channel Islands and the Isle of Man (OJ, English Special Edition of 27 March 1972, p. 164) annexed to the Act concerning the Conditions of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the European Economic Community and to the European Atomic Energy Community and the Adjustments to the Treaties ((OJ, English Special Edition of 27 March 1972, p. 14),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, C. Gulmann, H. Ragnemalm and M. Wathelet (Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida, P.J.G. Kapteyn, J.L. Murray, D.A.O. Edward, J.-P. Puissochet, G. Hirsch, P. Jann and L. Sevón (Rapporteur), Judges,

Advocate General: A. La Pergola,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

- Mr Pereira Roque, by Nicholas Blake QC, instructed by Pierre Landick, Agent for the Representor,

- His Excellency the Lieutenant Governor of Jersey, by Michael C. St. J. Birt QC,

- the United Kingdom Government, by John E. Collins, Assistant Treasury Solicitor, acting as Agent, and by Richard Plender QC,

- the French Government, by Catherine de Salins, Deputy Director of the Legal Affairs Directorate, Ministry of Foreign Affairs, and Claude Chavance, Secretary of Foreign Affairs in the same directorate, acting as Agents,

- the Commission of the European Communities, by Nicholas Khan, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Pereira Roque, His Excellency the Lieutenant Governor of Jersey, the United Kingdom and French Governments and the Commission at the hearing on 24 June 1997,

after hearing the Opinion of the Advocate General at the sitting on 23 September 1997,

gives the following

Judgment

1. By order of 11 April 1996, received at the Court on 20 May 1996, the Royal Court of Jersey referred to the Court for a preliminary ruling under Article 177 of the EC Treaty three questions on the interpretation of Article 4 of Protocol No 3 on the

   Channel Islands and the Isle of Man (OJ, English Special Edition of 27 March 1972, p. 164; 'Protocol No 3') annexed to the Act concerning the Conditions of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the European Economic Community and to the European Atomic Energy Community and the Adjustments to the Treaties ((OJ, English Special Edition of 27 March 1972, p. 14).

2. Those questions were raised in proceedings between Mr Pereira Roque and His Excellency the Lieutenant Governor of Jersey ('the Lieutenant Governor') concerning the deportation order made by the latter against Mr Pereira Roque.

3. Jersey is one of the two bailiwicks which constitute the Channel Islands.

   Community law

4. Article 227(4) of the EC Treaty provides that:

   'the provisions of this Treaty shall apply to the European territories for whose external relations a Member State is responsible'.

5. Under Article 227(5):

   'Notwithstanding the preceding paragraphs:

   ...

   (c) 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 new Member States to the European Economic Community and to the European Atomic Energy Community signed on 22 January 1972;

   ...'.

6. The system envisaged by that provision is set out in Protocol No 3. Article 1 of that Protocol provides, inter alia, that Community rules on customs matters and quantitative restrictions are applicable to the Channel Islands under the same conditions as they apply to the United Kingdom.

7. Article 2 of Protocol No 3 is worded as follows:

   'The rights enjoyed by Channel Islanders or Manxmen in the United Kingdom shall not be affected by the Act of Accession. However, such persons shall not benefit from Community provisions relating to the free movement of persons and services.'

8. Article 4 then goes on to provide:

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

9. Finally, Article 6 provides:

   'In this Protocol, Channel Islander or Manxman shall mean any citizen of the United Kingdom and Colonies who holds that citizenship by virtue of the fact that he, a parent or grandparent was born, adopted, naturalised or registered in the island in question; but such a person shall not for this purpose be regarded as a Channel Islander or Manxman if he, a parent or a 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 five years.

   The administrative arrangements necessary to identify these persons will be notified to the Commission.'

10. In the New Declaration by the Government of the United Kingdom of Great Britain and Northern Ireland on the definition of the term 'nationals' (OJ 1983 C 23, p. 1), made following the entry into force of the British Nationality Act 1981, the United Kingdom Government indicated that, in relation to Protocol No 3, '[t]he reference in Article 6 of the third Protocol to the Act of Accession of 22 January 1972, on the Channel Islands and the Isle of Man, to "any citizen of the United Kingdom and Colonies" is to be understood as referring to "any British citizen"'.

    National law

11. It is apparent from the order for reference that Jersey is a semi-autonomous dependency of the British Crown, which is represented in Jersey by the Lieutenant Governor. The United Kingdom Government, on behalf of the Crown, is responsible for defence and international relations.

12. For the purposes of the British Nationality Act 1981, 'the United Kingdom' is taken to include the Channel Islands. Accordingly, a person born in Jersey, and the child of such a person, obtain British citizenship in the same circumstances as a person born in Great Britain and the child of such a person.

13. The Channel Islands, together with the United Kingdom, the Isle of Man and Ireland constitute, for the purposes of the Immigration Act 1971, the 'common travel area' within which no systematic control of immigration is imposed.

14. By an Order of the Queen in Council entitled the Immigration (Jersey) Order 1993 ('the 1993 Order'), the main provisions of the Immigration Act 1971 were

    extended to and made applicable in Jersey. The 1993 Order also extended and applied to the island the main provisions of the Immigration Act 1988.

15. Sections 1(1) and 2(1) of the Immigration Act 1971 (as applicable in Jersey) are worded as follows:

    '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 such as may be required under and in accordance with this Act to enable their right to be established or as may otherwise be 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 ...'

16. So far as concerns the entry and residence of persons who are not British citizens, Section 7(1) of the Immigration Act 1988 provides:

    'a person shall not under the [Immigration Act 1971] 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 ...'.

17. Section 3(5)(b) of the Immigration Act 1971 provides, inter alia:

    'a person who is not a British citizen shall be liable to deportation from the Bailiwick of Jersey ... if the Lieutenant Governor deems his deportation to be conducive to the public good;'

18. Section 5(1) of the Immigration Act 1971 provides:

    '(1) Where a person is under Section 3(5) ... 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 ...'.

19. The order for reference also states that a deportation order made in Jersey may be confined to the Island of Jersey (so that it would not exclude the person concerned from the United Kingdom, Guernsey and the Isle of Man). Paragraph 3(2) of Schedule 4 to the Immigration Act 1971, as in force in the United Kingdom, empowers the Secretary of State to direct that a deportation order made in Jersey, Guernsey or the Isle of Man is not to have the effect of excluding the person deported from the United Kingdom. Similar provision is made in paragraph 3(2)

    of Schedule 4 to the Immigration Act 1971 as it applies in Guernsey and the Isle of Man.

20. The national court states that, where the criminal courts in Jersey have convicted a person of an offence and no other punishment is imposed, they have the power to ask that person to agree to be bound over to leave Jersey and not return for a specified period, usually two or three years. If the offender does not agree to be bound over, the Court may impose punishment for the offence. If the person bound over returns to Jersey in breach of the order, he can be brought back before the court which made the order and punished for the original offence in respect of which he was bound over.

    The main proceedings

21. Mr Pereira Roque, a Portuguese national, arrived in Jersey on 18 February 1992. He was admitted without restriction, in accordance with Section 7(1) of the Immigration Act 1988.

22. In August 1993, Mr Pereira Roque obtained employment as a night porter at a Jersey hotel. In October 1993, he committed a theft at that hotel, as a result of which he was placed on probation for one year and ordered to do 80 hours of community service.

23. After being dismissed from the hotel where he was working, Mr Pereira Roque was unable to find long-term employment until April 1994, when he obtained a job as a day porter in another Jersey hotel. On 20 October 1994, he was convicted of three thefts committed at that hotel in June of that year and of a breach of probation. He was sentenced to a total of 14 weeks' imprisonment and the probation order was discharged.

24. On 22 December 1994, the Lieutenant Governor of Jersey issued a deportation order against Mr Pereira Roque under Section 3(5)(b) of the Immigration Act 1971. The order was served on Mr Pereira Roque on 29 December 1994.

25. On 3 January 1995, Mr Pereira Roque made an application to the Royal Court of Jersey for annulment of the deportation order or a declaration of its invalidity, and for suspension of its implementation pending the determination of the case. On that date, the Royal Court ordered the proceedings to be served on the Lieutenant Governor and the deportation order to be suspended.

26. Taking the view that an interpretation of Community law was necessary in order to resolve the dispute in the main proceedings, the Royal Court decided to stay proceedings in order to seek a preliminary ruling on the following questions:

    '(1) On the premise that British citizens are not liable to immigration control in, or to be deported from, Jersey, does Article 4 of Protocol No 3 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?

    (2) 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 grounds of public policy, public security or public health?

    (3) 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?'

    Question 1

27. In its first question, the national court essentially asks whether the effect of the rule on equal treatment set out in Article 4 of Protocol No 3 is to prohibit the deportation from Jersey of nationals of a Member State other than the United Kingdom, since 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.

28. According to Mr Pereira Roque, it is apparent first of all from the judgment in Case C-355/89 Department of Employment v Barr and Montrose Holdings [1991] ECR I-3479, that Article 4 of Protocol No 3 applies to all situations involving Community nationals that are covered by Community law and is not restricted to those areas referred to in Article 1 of the Protocol. In that respect, he maintains that, during the relevant period, he enjoyed a right of entry and residence in the United Kingdom pursuant to Community law in his capacity as a worker and/or a dependant of a worker, thus bringing his situation within the scope of Article 4 of Protocol No 3.

29. Mr Pereira Roque goes on to argue that the prohibition laid down by Article 4 of Protocol No 3 applies where a national of a Member State other than the United Kingdom is capable of being deported from Jersey whereas a British citizen, even though not a Channel Islander within the meaning of Article 6 of Protocol No 3, may not be. In his submission, the assessment whether the rule on equal treatment has been complied with should thus be made by reference to such a British citizen.

30. However, the other parties submitting observations to the Court consider that the fact that a British citizen is not liable to deportation from Jersey does not affect the right to deport citizens of other Member States.

31. On that point, the Lieutenant Governor and the United Kingdom Government argue primarily that Article 4 of Protocol No 3 does not cover deportation, which is closely linked to the concept of citizenship.

32. In the alternative, the United Kingdom Government contends that Article 4 of Protocol No 3 is not applicable in a situation such as that in the main proceedings, since the right of British citizens to enter and reside in Jersey arises not from Community law but from national law. In its view, nationals of other Member States are in any event treated in the same way since the Jersey criminal courts have the power to ask a British citizen to undertake, in place of sentencing, to leave Jersey and not return there for a certain period.

33. Finally, the United Kingdom Government, like the Lieutenant Governor, requests the Court to reconsider its judgment in Barr and Montrose Holdings, cited above, if Article 4 of Protocol No 3, interpreted in the light of that judgment and in particular paragraph 17 thereof, were to lead to a solution that was incompatible with that proposed by the United Kingdom.

34. It should be noted first of all that, according to paragraph 16 of the judgment in Barr and Montrose Holdings, 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 Channel Islands 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.

35. As the Court held in paragraph 17 of that judgment, however, 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 of that protocol; Article 4 must 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.

36. It follows that, in so far as Mr Pereira Roque's situation falls under, inter alia, rules on the free movement of workers in territories where the Treaty is fully applicable, the rule set out in Article 4 of Protocol No 3 applies to him, even if Community nationals cannot thereby obtain in the Channel Islands the benefit of the rules on the free movement of workers (see, on that point, Barr and Montrose Holdings, paragraph 18). That rule in Article 4 of Protocol No 3 applies in particular in the case of a deportation order made against him by the Jersey authorities.

37. In order to assess the implications of the principle of equal treatment laid down by Article 4 of Protocol No 3 in a situation such as that in the main proceedings, it is important to recall in the first place that the Court has held that the reservation contained in Article 48(3) of the EC Treaty permits Member States to adopt, with respect to the nationals of other Member States and on the grounds specified in that provision, 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 (see Case 41/74 Van Duyn v Home Office [1974] ECR 1337, paragraph 22; Joined Cases 115/81 and 116/81 Adoui and Cornuaille v Belgium [1982] ECR 1665, paragraph 7; Case C-370/90 R v Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department [1992] ECR I-4265, paragraph 22; and Joined Cases C-65/95 and C-111/95 Shingara and Radiom [1997] ECR I-3343, paragraph 28).

38. That difference of treatment between a State's own nationals and those of other States derives from a principle of international law which precludes a State from denying its own nationals the right to enter its territory and reside there, and which the EC Treaty cannot be assumed to disregard in the context of relations between Member States (Van Duyn v Home Office, paragraph 22).

39. That principle must also be complied with in applying Article 4 of Protocol No 3.

40. Turning next to Mr Pereira Roque's argument that the requirement of equal treatment should nevertheless be applied between citizens of the United Kingdom who are not Channel Islanders and nationals of other Member States, it is true that Protocol No 3 distinguishes citizens of the United Kingdom having certain links with the Channel Islands from other citizens of the United Kingdom.

41. However, since Channel Islanders are British nationals, the distinction between them and other citizens of the United Kingdom cannot be likened to the difference in nationality between the nationals of two Member States.

42. Nor can relations between the Channel Islands and the United Kingdom be regarded as similar to those between two Member States because of other aspects of the status of those Islands.

43. It follows from the above considerations that Article 4 of Protocol No 3 does not prohibit a difference of treatment resulting from the fact that a national of another Member State may be deported from Jersey under national legislation, whereas citizens of the United Kingdom, including those who are not Channel Islanders within the meaning of Article 6 of Protocol No 3, are not liable to deportation.

44. The answer to the first question must therefore be that the rule on equal treatment set out in Article 4 of Protocol No 3 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.

    Question 2

45. In its second question, the national court essentially asks 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.

46. The reservation contained in Article 48(3) of the Treaty concerning inter alia the right of residence in the territory of Member States comprises limitations justified on grounds of public policy, public security or public health. Council Directive 64/221/EEC of 25 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 (OJ, English Special Edition 1963-1964, p. 117) lays down more detailed provisions on the application of those grounds.

47. 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, as has already been stated at paragraph 34 of this judgment, Article 4 of Protocol No 3 cannot be interpreted in such a way as to be used as an indirect means of extending their application to those territories.

48. It follows that neither Article 48(3) of the Treaty nor the provisions of Directive 64/221 determine the grounds on which the Jersey authorities may make a deportation order against a national of another Member State.

49. The fact remains, however, that the rule on equal treatment laid down by Article 4 of Protocol No 3 prohibits the Jersey authorities, even if difference of treatment between citizens of the United Kingdom and nationals of other Member States is allowed, 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 (see, on that point, Adoui and Cornuaille v Belgium, paragraph 7).

50. 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 (see, on that point, Adoui and Cornuaille v Belgium, cited above).

51. In the case of Jersey, that comparison must be made between the deportation order at issue in the main proceedings and the measures to which the same type of conduct gives rise when attributable to a citizen of the United Kingdom.

52. 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.

    Question 3

53. In its third question, the national court asks whether Article 4 of Protocol No 3 prohibits the Jersey authorities from deporting a national of another Member State when the public policy considerations relied upon by those authorities would not in practice entail the deportation of that person from the United Kingdom.

54. Although the national court asks that question only in the event of the second question being answered in the affirmative, one of its aspects needs to be dealt with in order to give that court a meaningful answer.

55. As stated in the order for reference, 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. The United Kingdom Government has stated that no such decisions have in practice been taken.

56. 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.

57. 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.

58. The answer to the third question must therefore be that Protocol No 3 cannot be interpreted in such a way that a deportation order made by the Jersey authorities against a national of a Member State other than the United Kingdom would have the effect of prohibiting that person's entry to and residence in the territory of the United Kingdom for reasons and considerations other than those for which the United Kingdom authorities might otherwise restrict the free movement of persons under Community law.

    Costs

59. The costs incurred by the French and United Kingdom Governments and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Royal Court of Jersey by order of 11 April 1996, hereby rules:

1. The rule on equal treatment set out in Article 4 of Protocol No 3 on the Channel Islands and the Isle of Man annexed to the Act concerning the Conditions of Accession of the Kingdom of Denmark, Ireland, and the United Kingdom of Great Britain and Northern Ireland to the European Economic Community and to the European Atomic Energy Community and the Adjustments to the Treaties 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.

2. 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 EC Treaty and set out in detail by Council Directive 64/221/EEC of 25 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. 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.

3. Protocol No 3 cannot be interpreted in such a way that a deportation order made by the Jersey authorities against a national of a Member State other

than the United Kingdom would have the effect of prohibiting that person's entry to and residence in the territory of the United Kingdom for reasons and considerations other than those for which the United Kingdom authorities might otherwise restrict the free movement of persons under Community law.

Rodríguez Iglesias Gulmann Ragnemalm Wathelet Mancini Moitinho de Almeida Kapteyn Murray Edward Puissochet Hirsch Jann Sevón

Delivered in open court in Luxembourg on 16 July 1998.

R. Grass G.C. Rodríguez Iglesias

Registrar President

---

1: Language of the case: English.