Van Duyn v Home Office

• Jurisdiction: European Union
• Date: 04 December 1974
• Court: European Court of Justice

Van Duyn

and

Home Office

(Pennycuick, V.-C.)

(Lecourt, President; Sørensen (Rapporteur), Ó Dálaigh, Mackenzie Stuart, Donner, Monaco, Mertens de Wilmars, Pescatore, Kutscher, Judges; Mayras, Advocate-General)

England, High Court, Chancery Division.

Court of Justice of the European Communities.

International law in general — Relations to municipal law — The law of the European Economic Community — Direct effect in territory of Member States — Individual rights — Enforcement in national courts — The law of England — The law of the European Communities

Treaties — Conclusion and operation of treaties — Operation and enforcement — Direct effect in municipal law — Individual rights — Enforcement in national courts — The law of England — The law of the European Communities

Treaties — Interpretation — Treaty establishing the European Economic Community — Fundamental principle of freedom of movement — Derogation — National public policy — Scope of national authorities' competence — Treaty Article 48 — The law of England — The law of the European Communities

Disputes — Other international courts — Procedure — Court of Justice of the European Communities

The individual in international law — Aliens — Admission — Restrictions imposed on grounds of public policy — Free movement of workers within the European Economic Community — Conditions under which Member State having power to refuse entry to national of another Member State — Refusal to be based upon personal conduct of national concerned — Whether membership of organization alleged to be harmful but not illegal amounts to personal conduct for these purposes — Margin of discretion left to each Member State — Whether Article 48 of the Treaty establishing the European Economic Community and secondary legislation thereunder directly applicable in municipal law — The law of England — The law of the European Economic Community

Summary: The facts:—In 1968 the Minister of Health stated in the House of Commons that the United Kingdom Government considered that the Church of Scientology was socially harmful and that no work permits and employment vouchers would be issued to foreign nationals for work at a Scientology establishment. No legal restrictions were placed upon the practice of scientology in the United Kingdom nor upon British nationals wishing to become members of or take employment with the organization.

Miss van Duyn was a Dutch national who intended to take up an offer of employment with the Church of Scientology at its college in England. On arrival at Gatwick Airport, she was refused leave to enter the United Kingdom by the immigration officer acting in accordance with the policy of the Government and with Rule 65 of the relevant Immigration Rules for Control of Entry.

Relying on the Community rules on freedom of movement of workers and especially on E.E.C. Treaty, Article 48,1 Regulation 1612/682 and Council Directive No. 64/221, Article 3(1),3 Miss van Duyn claimed that the refusal of leave to enter was unlawful since it was not based upon her personal conduct and sought a declaration from the Chancery Division of the High Court of Justice, England, that she was entitled to stay in the United Kingdom for the purpose of employment and to be given leave to enter the United Kingdom. The Home Office contended that Article 48 of the Treaty and the secondary legislation made thereunder were not directly applicable and did not confer upon individuals rights enforceable in the English courts. The Home Office further contended that as Miss van Duyn

had been a practising scientologist for some time and had been employed at a scientologist establishment the refusal of leave to enter had been based upon her personal conduct. Miss van Duyn requested that these questions be referred to the Court of Justice of the European Communities for a preliminary ruling under Article 177 of the Treaty.4

Held (by the High Court):—(1) Since Article 48 was not clearly unenforceable by individuals in the courts of a Member State, the question whether it did confer upon the plaintiff a right of action in the English courts would be referred to the Court of Justice.

(2) The effect of Article 3(1) of Directive No. 64/221 taken together with Article 48 of the Treaty was that the refusal of entry would only have been lawful under E.E.C. law if it had been based exclusively on the personal conduct of the plaintiff. The question whether it had been so based would therefore be referred to the Court of Justice.5

Held (by the Court of Justice of the European Communities):—(1) Article 48 of the E.E.C. Treaty had a direct effect in the legal orders of the Member States and conferred upon individuals rights which the national courts had to protect.

(2) Although Article 1896 of the E.E.C. Treaty distinguished between regulations, which were not only binding but also directly applicable in the Member States, and directives which were binding, but left to the States a choice of methods in bringing them into operation, it would be incompatible with the binding effect attributed to a directive to exclude, in principle, the possibility that the obligation which it imposed might be invoked by those concerned. In particular where the Community authorities had, by directive, imposed on Member States the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts and if the latter were prevented from taking it into account as an element of Community law. Article 177, which empowered national courts to refer to the Court questions concerning the validity and interpretation of all acts of the Community institutions, without distinction, implied furthermore that these acts might be invoked by individuals in the national courts. It was necessary to examine, in every case, whether the nature, general scheme and wording of the provision in question were capable of having direct effects on the relations between Member States and individuals.

(3) On examination of the nature, general scheme and wording of Article 3(1) of Council Directive No. 64/221, the Court found it had direct effect on the relations between Member States and individuals. Thus the provisions of Article 3(1), on the co-ordination of special measures concerning the movement and residence of foreign nationals which were justified on grounds of public policy, public security or public health, conferred upon individuals rights which were enforceable by them in the national courts of a Member State and which the national courts had to protect.

(4) Although ‘public policy’ as a ground for derogating from freedom of movement under Article 48(3) of the E.E.C. Treaty, had to be interpreted strictly, the competent national authorities should be allowed an area of discretion within the limits imposed by the Treaty and subject to control by the Community institutions.

(5) Article 48 of the E.E.C Treaty and Article 3(1) of Council Directive No. 64/221 meant that a Member State in imposing restrictions on the principle of freedom of movement on grounds of public policy, was entitled to take into account, as a matter of personal conduct of the individual concerned, the fact that the individual was presently associated with an organization, the activities of which the Member State considered socially harmful, but which were not unlawful in that State, despite the fact that no restriction was placed upon nationals of the said Member State who wished to take similar employment with the same organization.

The text of the judgment of the Court of Justice commences at p. 261. The text of the submissions of Mayras, Advocate-General, begins on p. 275. The following is the text of the judgment of the High Court:

Pennycuick V.-C. gave the following judgment. 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 to 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 it 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 State 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 century to pubic 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 AffairsINTLELR[7] [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, there is no...