COUNSEL: A. R. H. Newman for the plaintiff
P. J. Gibson for the Home Office

SOLICITORS: Stephen M. Bird, East Grinstead; Treasury Solicitor.

JUDGE: Pennycuick V.-C.

DATES: 1974 Feb. 8, 11, 12; 14; March 1

PENNYCUICK V.-C.:

In this action the plaintiff is Miss Yvonne van Duyn. The defendant is the Home Office. The plaintiff seeks a declaration that she is entitled to enter and remain in the United Kingdom for the purpose of accepting employment with a body known as the Church of Scientology. The plaintiff was in fact refused leave to enter the United Kingdom on May 9, 1973, and returned to the Netherlands on the same day. The defendant, the Home Office. contends that such refusal was justified.

The issue in the action turns for all practical purposes upon the construction of certain provisions in the Treaty of Rome, and a direction given pursuant to that Treaty, the combined effect of which is that within the community a member state may refuse entry to an individual on the grounds of public policy, but that measures taken on this ground must be based exclusively on the personal conduct of the individual concerned.

I have before me today a motion on the part of the plaintiff whereby she seeks that certain questions set out in the schedule to the notice of motion be referred to the European Court for a preliminary ruling under article 177 of the Treaty of Rome.

The facts may be stated as follows. The Church of Scientology is a body established in the United States of America, which functions in the United Kingdom through a college at East Grinstead, Sussex. There is no evidence before me as to the constitution or purpose of the Church of Scientology, but it is not in doubt that the Government of this country regards its activities as contrary to public policy. On July 25, 1968, the Minister of Health stated in the House of Commons that the Government was satisfied that scientology was socially harmful and that he had withdrawn acceptance of the college as an educational establishment. In Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch. 149, the Court of Appeal upheld a decision of Ungoed-Thomas J. striking out an action by a student at the college challenging the refusal of the Secretary of State to allow further extension of his stay in the United Kingdom. On the other hand, they is no suggestion that the activities of the Church of Scientology are unlawful in this country.

In 1972 the United Kingdom acceded to the Treaty of Rome: see the European Communities Act 1972. The Home Office has not altered its adverse view of the Church of Scientology and maintains that nothing contained in the Treaty of Rome or its secondary legislation precludes it from continuing to refuse entry and work permits to persons connected with that body.

The plaintiff is a Dutch national who has been engaged in the study and [*1111] practice of scientology abroad. On May 9, 1973, having been offered employment in the college at East Grinstead, she arrived at Gatwick Airport with a view to taking up that employment. She was examined there by an immigration officer who refused her leave to enter the United Kingdom, and returned her to the Netherlands that evening. The official refusal of leave to enter is worded as follows:

“Refusal of leave to enter (right of appeal exercisable from overseas). To Yvonne van Duyn: You have asked for leave to enter the United Kingdom in order to take employment with the Church of Scientology but the Secretary of Slate considers it undesirable to give anyone leave to enter the United Kingdom on the business of or in the employment of that organisation. I therefore refuse you leave to enter the United Kingdom.”

I was referred in this connection to the Statement of Immigration Rules for Control of Entry, EEC and Other Non-Commonwealth Nationals (1973) (H.C. 81), and in particular to rule 65, which reads:

“Any passenger except the wife or child under 18 of a person settled in the United Kingdom may be refused leave to enter on the ground that his exclusion is conducive to the public good, where — (a) the Secretary of State has personally so directed, or (b) from information available to the immigration officer it seems right to refuse leave to enter on that ground — if, for example, in the light of the passenger’s character, conduct or associations it is undesirable to give him leave to enter.”

I understand that the immigration officer was acting not on instructions given by the Secretary of State personally but on general instructions given by the Home Office.

There is a right of appeal against such a decision — see the Immigration Act 1971, Part II — but I do not think the circumstance that the plaintiff did not elect to exercise that right has any significance on the present issue.

The writ in that action was issued on June 12, 1973. The pleadings are not lengthy, and as the question of a reference depends entirely upon the nature of the issue pleaded, I think it is right to read the pleadings in full.

The statement of claim:

“1. The plaintiff is a Dutch national to whom article 48 of the Treaty establishing the European Economic Community (hereinafter referred to as ‘the Treaty of Rome’) and section 3 of the Immigration Act 1971 apply. In the exercise of their functions, under the said Act immigration officers act in accordance with instructions given to them by the defendant. 2. The United Kingdom is a member state of the said European Economic Community. 3. By a letter dated May 4, 1973, the plaintiff was offered employment as a secretary by the Church of Scientology at the said church’s premises at Saint Hill Manor, East Grinstead, in the county of Sussex. 4. On May 9, 1973, the plaintiff arrived at Gatwick Airport from Holland for tho purpose of carrying on the said employment, was examined by an immigration officer and refused leave to enter the United Kingdom on grounds of public policy and returned to Holland later on the same day. 5. Under article 48 of the Treaty of Rome the plaintiff has the right, subject to limitations justified inter alia on the grounds of public policy (a) to accept offers of employment actually made; (b) to move freely within the territory of [*1112] member states for this purpose: (c) to stay in a member state for the purpose of employment. 6. By Regulation 1612/68 made under the Treaty of Rome it is provided inter alia (in article 1) that any national of a member state shall be entitled to take up and carry on. a wage-paid occupation in the territory of another member state. 7. By Directive 64/221 [E.E.C.] adopted on February 25, 1964, in accordance with the Treaty of Rome it is provided inter alia (in article 3) that measures taken on grounds of public policy shall be based exclusively on the personal conduct of the individual concerned. 8. The refusal to grant leave to the plaintiff to enter the United Kingdom was not based exclusively or at all on her personal conduct, but on a general government policy not to admit into the United Kingdom scientology workers and students who are foreign nationals. The said policy was announced on July 25, 1968, in the House of Commons by the then Minister of Health in a written answer and ks continued application to nationals of member states of the European Economic Community after the United Kingdom became a member state was continued by letter from the defendant to Mr. C. B. B. Parselle of the said church dated April 2, 1973, in reply to letters from the said Mr. Parselle dated February 15, March 13, and March 21, 1973. 9. The plaintiff is denied her rights of free movement under the said article 48 of the said Regulation 1612/68, and the said refusal of leave to enter the United Kingdom is wrong in law and unlawful. And the plaintiff claims: a declaration that she is entitled: (1) to accept the said offer of employment, (2) to move freely within the territory of the United Kingdom for this purpose, (3) to stay in the United Kingdom for the purpose of employment, (4) to be given leave to enter the United Kingdom.”

The defence:

“1. The defendant admits paragraph 1 of the statement of claim but will contend that article 48 of the Treaty establishing the European Economic Community is not directly applicable so as to confer on individuals rights enforceable by them in the courts in the United Kingdom. In addition to acting in accordance with instructions given to them by the defendant, immigration officers act in accordance with the Immigration Rules made under section 3 (2) of the Immigration Act 1971. The defendant will refer at the trial to the Immigration Rules in force at May 9, 1973. 2. The defendant admits paragraphs 2, 3 and 4 of the statement of claim. 3. The defendant admits that the said article 48 contains provisions that the freedom of movement for workers to be secured in the said community entails the right subject to limitations justified inter alia on grounds of public policy — (a) to accept offers of employment actually made; (b) to move freely within the territory of member states for this purpose; (c) to stay in a member state for the purpose of employment. Subject as aforesaid no admission is made as to paragraph 5 of the statement of claim. The defendant will contend that the said article 48 confers on the plaintiff no right that is enforceable by her in the courts in the United Kingdom. 4. Subject to reference at the trial to Regulation 1612/68 for its full terms and effect, paragraph 6 of the statement of claim is admitted. By virtue of the said article 48 the rights conferred by the said regulation are subject to limitations justified inter alia on grounds of public policy. 5. Subject to reference at the trial to Directive 64/221 [*1113] [E.E.C.] for its full terms and effect, paragraph 7 of the statement of claim is admitted. The defendant will contend that the said directive io not directly applicable so as to confer on individuals rights enforceable by them in the courts in the United Kingdom. 6. The defendant admits that at all material times it has been the policy of the government for the time being of the United Kingdom not to allow the entry into the United Kingdom of foreign nationals intending to work br study at a Scientology establishment in the United Kingdom. The defendant further admits that the said policy was announced on July 25, 1968, in the House of Commons by the then Minister of Health in a written answer and that its continued application to nationals of member states of the said community after the United Kingdom became a member state was confirmed by letter from the defendant to Mr. C. B. B. Parselle of the Church of Scientology dated April 2, 1973, in reply to letters from the said Mr. Parselle dated February 15, March 13, and March 21, 1973. Save as hereinbefore admitted and subject to reference at the trial to the said written answer and to the said letters for their respective full terms and effect each and every allegation in paragraphs 8 and 9 of the statement of claim ia denied. 7. If, which is denied, the said directive is directly applicable so as to confer on individuals rights enforceable by them in the courts in the United Kingdom, the defendant will contend that the refusal to grant leave to the plaintiff to enter the United Kingdom was based on her personal conduct, within the meaning of article 3 of the said directive, in that — (a) she had worked in a Scientology establishment in Amsterdam for six months prior to May 9, 1973, (b) prior to such work she had taken a course in the subject of scientology, (c) she was at the date of such refusal a practising scientologist, (d) she was intending at such date to work at a scientology establishment in the United Kingdom. 8. The plaintiff is not entitled to the relief claimed or any relief.”

Then there are the particulars which I need not read.

Finally, the reply:

“1. The facts contained in sub-paragraphs (a) to (d) inclusive of paragraph 7 of the defence are admitted. 2. Save as to the above admission, paragraph 7 of the defence is denied. 3. Save as hereinbefore admitted, the plaintiff joins issue with the defendant on its defence.”

The pleadings raise no issue of fact, with the following exception. Paragraph 7 of the defence alleges that the refusal to grant leave was based on the plaintiff’s personal conduct particularised under heads (a) to (d). The official refusal of leave to enter merely states that it is undesirable ia give anyone leave to enter the United Kingdom on the business of or in the employment of that organisation. i.e., in effect subparagraph (d) in paragraph 7 of the defence. This divergence has at first sight some significance in that it confines the ground of refusal to the plaintiff’s future intention in contradistinction to her past activities. But it is stated by Mr Gibson on behalf of the Home Office that paragraphs (a) to (c). as well as paragraph (d). are derived from information given to the immigration officer by the plaintiff on May 9, 1973. That being so, there is no [*1114] substantial relevance in this issue of fact and the case turns wholly on that provisions of the Treaty of Rome and its secondary legislation.

The pleadings raise two broad issues in that connection, namely, (i) was the refusal of entry based on the plaintiff’s personal conduct within the meaning of article 48 and the 1964 directive? And (ii) does article 48 confer upon the plaintiff’ a right of action enforceable in the courts in this country?

I will not attempt any introductory statement as to the Treaty of Rome or the European Court of Justice. For a convenient general review of those matters, see Parry and Hardy’s E.E.C. Law (1973).

I will come at once to the provisions which bear directly upon the present issue. The Treaty of Rome itself contains three articles which are directly in point. Article 48:

“1. Freedom of movement for workers shall be secured within the community by the end of the transitional period at the latest” — I intervene to say that it is a common ground that the transitional period has now ended. — “2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the member states as regards employment, remuneration and other conditions of work and employment. 3. It shall entail the right. subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of member states for this purpose; (c) to stay in a member state for the purpose of employment in accordance with the provisions governing the employment of nationals of that state laid down by law, regulation or administrative action: (d) to remain in the territory of a member state after having been employed in that state, subject to conditions which shall be embodied in implementing regulations to be drawn up by the commission. 4. The provisions of this article shall not apply to employment in the public service.”

Article 177: “The Court of Justice” — that is, the European Court — “shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty; . . .” — and (b) and (c) are not in point — “Where such a question is raised before any court or tribunal of a member state, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a member state, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.”

I mention in passing that the meaning of the word “preliminary” in article 177 is rather obscure. For an explanation, see Parry and Hardy’s E. E.C. Law, p. 119. It is not suggested that the word has any bearing on the problem now before me.

Article 189 :

“In order to carry out their task the council and the commission shall, in accordance with the provisions of this Treaty, make regulations, issue directives, take decisions, make recommendations or deliver opinions. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all member [*1115] states. A directive shall be binding, as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and method. A decision shall be binding in its entirety upon those to whom it is addressed. Recommendations and opinions shall have no binding force.”

There followed certain secondary legislation now in point. The important piece of secondary legislation for the present purposes is a Council Directive made on February 25, 1964, and numbered 64/221 E.E.C. The directive contained, among others, these recitals:

“Whereas such co-ordination presupposes in particular an approximation of the procedures followed in each member state when invoking grounds of public policy, public security or public health in matters connected with the movement or residence of foreign nationals; Whereas in each member state, nationals of other member states should have adequate legal remedies available to them in respect of the decisions of the administration in such matters; Whereas it would be of little practical use to compile a list of diseases and disabilities which might endanger public health, public policy or public security and it would be difficult to make such a list exhaustive; Whereas it is sufficient to classify such diseases and disabilities in groups.”

Then article 3:

“1. Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned. 2. Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures.”

Article 3, paragraphs (1) and (2) in that directive clearly I think go to the “result to be achieved” within the meaning of article 189 of the Treaty of Rome, and not to the “form and methods,” which are left to the national authorities.

I was also referred to Regulation 1612/68 of the Council dated October 15, 1968, but so far as I can see that regulation, so far as now material, does no more than reaffirm and amplify the basic principle laid down in article 48.

I turn then to consider the two broad issues raised by the pleadings.

(i) I think it plain that article 48 of the Treaty of Rome. when read in conjunction with article 3 of the 1964 directive, raises a question of interpretation. If article 48 stood alone, it might perhaps be sufficiently clear that each member state was to be the sole judge of its own public policy. But the directive introduces a new element, namely, “the personal conduct of the individual concerned.”

Mr. Newman for the plaintiff and Mr. Gibson for the Home Office advanced fundamentally opposing views as to the meaning of this expression, that is to say, so as to cover or not to cover the position of Miss van Duyn.

Mr. Gibson contended that his view was so clearly right as to preclude the necessity of a reference. I am wholly unable to accept that contention. It seems to me that at the very lowest Mr. Newman’s view is well arguable; indeed, I think it might be put a good deal higher than that.

Turning then to article 177, it seems to me that a decision on this question is “necessary.” in the full sense of that word, to enable me to give judgment in the present case. Indeed, it would be quite impossible to give judgment without such a decision. That being so, it seems to [*1116] that I ought certainly to exercise my discretion by requesting the European Court to give a ruling upon the question.

Article 177 refers to rulings concerning the interpretation of the Treaty, but it has not been suggested that the article is not applicable to interpretation of the Treaty in connection with secondary legislation under it. Indeed, an interpretation of article 48 in isolation from the 1964 directive would be meaningless.

Mr. Gibson contended that if a reference was to be made at all, then the reference should be deferred until after the trial of the action, or at any rate until after discovery. I do not doubt that in general issues of fact and issues of national law should be determined before a reference is made to the European Court since the determination of those issues in a particular sense may make the reference, with the expense and delay involved, unnecessary; but here there is no substantial issue of fact, and no issue at all of national law. That being the position, I see no advantage in going through the form of bringing the action on for hearing and making the reference at the conclusion of the hearing of the action. Again, in the particular circumstances of this case, there does not appear to be the slightest prospect of any document being produced on discovery which could throw any more light on the matters pleaded.

Mr. Gibson contended that the national court should not overburden the already overburdened European Court with a deluge of references. I doubt whether that is a legitimate consideration, but in any case this seems to me an issue of the first importance upon which a reference is entirely appropriate.

There appears to have been so far only one case in this country in which the court has been asked to make a reference, namely, that of Löwenbräu München v. Grunhalle Lager International Ltd [1974] C.M.L.R. 1 before Graham J. In that case the judge refused to make a reference in the particular circumstances of the case at an interlocutory stage: I would, however, like to quote and adopt one passage in his judgment, he said, at p. 9:

“As I read the Treaty, references are not to be made unnecessarily, but on the other hand the power to refer is not confined only to courts whose decisions are final, or to any particular stage of a case. It seems to me therefore that if I felt in this case in need of guidance upon the interpretation of any article of the Treaty and that such guidance was necessary for my decision I have unfettered power to refer the matter to the E.E.C. Court. Such appears to me to be the clear intention of the Treaty from its wording.”

(ii) The question whether any given provision in the Treaty of Rome is enforceable by an individual in the court of a member nation, sometimes called “direct applicability,” has been considered by the European Court in connection with various articles of the Treaty of Rome, and in certain cases the court has held that an article is directly applicable. I should only be justified in refusing a reference on the ground that article 48 were not directly applicable if it were really clear that that was so. Mr. Gibson very properly accepted that that is at any rate an open question and I do not think it necessary to say any more upon that point.

I should observe in that connection what is perhaps obvious. If I considered that (a) the plaintiff had no arguable case on issue (i), I should not make a reference upon issue (ii), which would then be purely academic; (b) on the other hand, if I considered that the plaintiff had a perfectly [*1117] clear case on issue (i), it would still be necessary to make a reference upon question (ii). That position is inherent in the fact that the plaintiff has to surmount two obstacles in order to succeed.

It remains for me to frame the terms of reference. R.S.C., Ord. 114, after definitions of “the court” and “the European Court,” provides in r 2:

“(1) An order may be made by the court of its own motion at any stage in a cause or matter, or on application by a party before or at the trial or hearing thereof. (2) Where an application is made before the trial or hearing, it shall be made by motion.” r. 3: “An order shall set out in a schedule the request for the preliminary ruling of the European Court, and the court may give directions as to the manner and form in which the schedule is to be prepared.” r. 4: “The proceedings in which an order is made shall, unless the court otherwise orders, be stayed until the European Court has given a preliminary ruling on the question referred to it.”

The notice of motion now before me contains in a schedule the questions sought to be referred to the European Court. Questions (a) and (b) are concerned with direct applicability:

“(a) Whether article 49 of the Treaty establishing the European Economic Community is directly applicable so as to confer on individuals rights enforceable by them in the courts of the United Kingdom. (b) Whether Directive 64/221 [E.E.C.] adopted on February 25, 1964, in accordance with the Treaty establishing the European Economic Community is directly applicable so as to confer on individuals rights enforceable by them in the courts of the United Kingdom.”

No difficulty appears to arise upon the wording of those two questions.

Questions (c) and (d) are concerned with the other issue in the action; and question (c) has been amended at the hearing. Those questions as they now stand are worded as follows:

“(c) Whether the defendants’ refusal, based on grounds of public policy, to allow the plaintiff leave to enter the United Kingdom in order to take employment with the Church of Scientology on the basis that it is ‘undesirable to give anyone leave to enter the United Kingdom on the business of or in the employment of that organisation’ is contrary to: (1) the provisions of article 48 (1) and (2) of the Treaty establishing the European Economic Community and/or article 1 of Regulation 1612/68 and/or article 3 (1) of the Directive 64/221 [E.E.C.] in so far as the effect of the said policy is to discriminate between nationals of other member states of the European Economic Community and United Kingdom citizens (upon whom no similar restriction is placed) and (ii) the provisions of article 3 (1) of the Directive 64/221 in so far as the said policy is of general application. (d) whether all or any of the following matters, namely: (i) that the plaintiff has worked in a scientology establishment in Amsterdam for six months; (ii) that the plaintiff has taken a course in scientology; (iii) that the plaintiff is a practising scientologist in the sense that she subscribes to the doctrines and beliefs of the Church of Scientology; (iv) that the plaintiff intends to work at a scientology establishment in the United Kingdom, is capable of amounting to personal conduct within the meaning of article 3 of the said directive. 64/221.”

It seems to me that those questions are altogether too much tied to family: [*1118] the particular facts of this case. It is well established that the function of the European Court is confined to the interpretation of the Treaty of Rome, and no doubt secondary legislation, and that once the relevant provisions have been interpreted it is for the national court to apply that interpretation to the particular case in point. It is no doubt often impossible to frame a question of interpretation without setting it in the framework of particular facts, but it is nevertheless important to formulate the question so that it can be answered simply as a question of interpretation.

I have provisionally drawn a question which I think would be appropriate as question (c) to raise the necessary question of interpretation before the European Court. I will hand the question as drawn down to counsel for their consideration. I will not read it aloud because it is still purely provisional. The case can then be mentioned at some convenient early date when I can approve the question in its final form, as revised by counsel, and if necessary I can hear submissions upon it.

Having regard to the terms of question (c) in the schedule to the notice of motion. I think it right to say that so far as I can see article 49 (2) is of no relevance here, and that I would not myself make a reference based on article 48 (2). However, there is no objection to a question based on article 48 (2) being included in the reference if counsel for the plaintiff wishes to include it.

That concludes my judgment.

Order for reference of questions to European Court.

Action stayed pending ruling.

Costs in cause.

March 1. The preliminary ruling of the European Court was requested on the following questions:

“1. Whether article 48 of the Treaty establishing the European Economic Community is directly applicable so as to confer on individuals rights enforceable by them in the courts of a member state. “2. Whether Directive 64/221 [E.E.C.] adopted on February 25, 1964, in accordance with the Treaty establishing the European Economic Community is directly applicable so as to confer on individuals rights enforceable by them in the courts of a member state. “3. Whether upon the proper interpretation of article 48 of the Treaty establishing the European Economic Community and article 3 of Directive 64/221 [E.E.C.] a member state in the performance of its duty to base a measure taken on grounds of public policy exclusively on the personal conduct of the individual concerned is entitled to take into account as matters of personal conduct (a) the fact that the individual is or has been associated with some body or organisation the activities of which the member state considers contrary to the public good but which are not unlawful in that state; (b) the fact that the individual intends to take employment in the member state with such a body or organisation, it being the case that no restrictions are placed upon nationals of the member state who wish to take similar employment with such a body or organisation.”