R v Secretary of State for the Home Department, ex parte 
Kaur (Manjit) 

11 Dec. 1998
Crown Div
Case No CO/985/97



IN THE HIGH COURT OF JUSTICE CO/0985/98 
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

Royal Courts of Justice
The Strand
London WC2

Friday, 11th December 1998

B e f o r e:

MR JUSTICE LIGHTMAN 

R E G I N A 
v 
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT 
EX PARTE MANJIT KAUR 

MR P DUFFY QC, MR R DE MELLO and MR B HALLIGAN (Instructed by  Maurice 
Andrews Solicitors, Birmingham B4 6SE) appeared on behalf of the Applicant.

MISS E SHARPSTON and MR R TAM (Instructed by The Treasury Solicitors)  
appeared on behalf of the Respondent.


J U D G M E N T 
(AS APPROVED BY THE COURT)

Friday, 11th December 1998 

Lightman J. 
INTRODUCTION

1. This application for judicial review is a test case raising questions of great importance 
regarding the criteria for determining who is a citizen of the Union and the rights (if any) 
conferred on citizens of the Union by Articles 8 and 8a of the European Community 
Treaty ("the EC Treaty") as introduced by the Treaty on the European Union ("TEU"). 
Article 8 provides that every person holding the nationality of a Member State shall be a 
citizen of the Union and Article 8a provides that every citizen of the Union shall have the 
right to reside freely within the territory of Member States.

The applicant Mrs Manjit Kaur ("the Applicant") is a British Overseas Citizen ("BOC"). 
It is common ground that under United Kingdom ("UK") domestic law the Applicant has 
no right to enter or remain in the UK. But the Applicant claims that as a BOC under 
European law she is a national of the UK and accordingly a citizen of the Union; and in 
turn that as a citizen of the Union she is entitled to enter and remain in this country and to 
travel from this country to other Member States. This claim is challenged by the respondent 
Secretary of State for the Home Department ("the Respondent"). The issue of nationality turns 
upon the legal effect under European law of certain declarations, and most particularly a 
declaration made in 1972 ("the 1972 Declaration"), as to nationality made by the UK 
Government. Declarations by the Governments of Member States are a regular feature of the 
treaty making process within the Union, and any decision as to the legal effect of such 
declarations must have the most far-reaching legal effect. The Applicant submits that the legal 
effect of such declarations is uncertain and that I should accordingly refer this question (and 
with it the other issues of European law raised in this case) to the European Court of Justice 
("ECJ"). The Respondent submits that the status of the critical 1972 Declaration is so clear 
that no reference is required, but concedes that, if this is not so and a reference as to the status 
of that declaration is required, the other issues should  likewise be referred. 

The Respondent rightly describes the Applicant's claim as bold and far-reaching, but that 
does not mean that it is necessarily wrong, still less so clearly wrong that no reference 
should be made.

2. It is convenient at this point to set out the established criterion for referring a question 
to the ECJ. The correct approach is authoritatively stated by Sir Thomas Bingham MR in 
R v. Stock Exchange ex parte Else Ltd [1993] QB 534 at 545E to F as follows:

"I understand the correct approach in principle of a national court (other than a final court 
of appeal) to be quite clear: if the facts have been found and the Community law issue is 
critical to the court's final decision, the appropriate course is ordinarily to refer the issue 
to the Court of Justice unless the national court can with complete confidence resolve the 
issue itself. In considering whether it can with complete confidence resolve the issue 
itself the national court must be fully mindful of the differences between national and 
Community legislation, of the pitfalls which face a national court venturing into what 
may be an unfamiliar field, of the need for uniform interpretation throughout the 
Community and of the great advantages enjoyed by the Court of Justice in construing 
Community instruments. If the national court has any real doubt, it should ordinarily 
refer."

Counsel have agreed my summary in R v. Secretary of State for Defence ex parte Perkins 
[1997] IRLR 297 at 300:

"The national court should only refuse a reference if the answer to the question of 
construction is so obvious as to leave no scope for reasonable doubt and should hesitate 
long before holding that there can be no reasonable doubt about the correct answer: see 
BLP Group v. CEC [1994] STC 41 at 48 (CA) and Conoco v. CEC [1995] STC 1022 at 
1033." 

FACTS

3. The Applicant was born in Kenya on the 3rd June 1949. At birth she became a  Citizen 
of the United Kingdom and Colonies ("CUKC"). On the 1st January 1973 the 
Immigration Act 1971 ("the 1971 Act") came into force. The Applicant did not thereby or 
thereupon become a patrial and accordingly did not acquire a right of abode in the UK. 
On the 1st January 1983 the British Nationality Act 1981 ("the 1981 Act") came  into 
force and the Applicant became a BOC. In 1987 the Applicant applied for Entry 
Clearance to come to England first for settlement and (when this was refused) for a visit. 
On the 18th February 1987 this also was refused. An appeal to the Adjudicator against 
this dismissal was dismissed on the 14th November 1988 and on the 26th April 1989 the 
Immigration Appeal Tribunal refused leave to appeal. On the 26th May 1990 she entered 
the UK:

the circumstances in which she did so are not clear. On the 12th June 1992 she applied 
for Indefinite Leave to Remain ("ILR"). On the 7th December 1992, ILR was refused and 
the Applicant was informed that she was an illegal entrant. On the 19th May 1993 she 
was granted Exceptional Leave to Remain ("ELR") until the 11th May 1994 on the 
grounds of the ill-health of her mother, who was a UK resident. On the 17th January 1994 
she travelled to India, and on the 8th April 1994 she returned to the UK. On the 3rd May 
1994 she applied for further ELR which was granted on the 12th October 1994 until the 
11th May 1995. On the 23rd December 1994 she obtained a multiple visit visa for India 
valid for 6 months. On the 7th January 1995 she travelled to India, and on the 31st March 
1995 she returned to the UK. On the 3rd May 1995 she applied for ILR or alternatively 
ELR. On the 3rd August 1995 the Respondent refused both requests. On the 15th August 
1995 the Applicant appealed against this refusal, but at the hearing on the 14th June 1996 
this appeal was abandoned. The Applicant instead made representations seeking a 
recommendation that she should be allowed to remain. 

On the 5th August 1996 the Adjudicator dismissed the appeal and refused to make the  
recommendation requested. Thereafter the Applicant made representations to the 
Respondent stating that she was a national of the EU. In letters dated the 15th October 
1996, the 9th January 1997 and the 22nd January 1997 the Respondent wrote in reply 
stating that the Applicant was not a national of the EU; that she was not stateless as she 
was a CUKC; that accordingly she had no claim to remain in the UK and that she should 
therefore make arrangements to leave without delay. On the 19th June 1997 Tucker J. 
granted leave to apply for judicial review of the Respondent's decision that she was not 
entitled to remain in the UK. The substantive application is now before me. The evidence 
before me establishes that the Applicant wishes to remain and obtain gainful employment 
in this country and periodically to travel to other EC Member States, especially Ireland 
and France, and when in such countries to make purchases of goods and services. If it is 
held that she is not entitled to remain and work in this country unless she has first 
acquired the right to do so by having been engaged in work for a sufficiently substantial 
period in another Member State, then she would want to go to another Member State 
(probably Ireland) in order to seek work and do this, and probably later return to this 
country. She is however genuinely and reasonably concerned at being returned by the 
authorities of any other Member State if she travelled there before her entitlement to 
citizenship of the Union and to go there under EC law is established. It is common 
ground that the Respondent's decision to refuse the Applicant leave to remain was made 
on the ground that the Applicant was not a citizen of the Union, and that accordingly the 
decision is vitiated by error and must be quashed if it is held that the Applicant was a 
citizen of the Union. The decision has to be quashed whether or not the Applicant as a 
citizen of the Union has a right to remain here. The question whether as such a citizen of 
the Union the Applicant is entitled as of right to remain here or should as a matter of 
discretion be permitted to remain would then have to be remitted to the Respondent for 
reconsideration. The parties are however agreed that, if the issue of citizenship of the 
Union is to be referred to the ECJ, in order that her status and entitlements should be 
finally determined as soon as possible for the sake, not merely of the parties to these 
proceedings, but the many other BOCs, I should at the same time refer these other 
important questions to the ECJ. 

LEGISLATION

4. The issues raised are as to what criterion is to be applied in determining who is a 
citizen of the Union and what rights are conferred such citizenship. The critical 
provisions are Articles 8 and 8a of the EC Treaty and Sections 2 and 3 of the European 
Communities Act 1972 ("the 1972 Act"). 

Articles 8 and 8a read as follows:

"8.1. Citizenship of the Union is hereby established. Every person holding the  nationality 
of a member state shall be a citizen of the Union. 

2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be 
subject to the duties imposed." 

8a.1. Every citizen of the Union shall have the right to move and reside freely within the 
territory of the Member States subject to the limitations and conditions laid down in this 
Treaty and by the measures adopted to give it effect. 

2. The Council may adopt provisions with a view to facilitating the exercise of the rights 
referred to in paragraph 1." 

Sections 2 and 3 of the 1972 Act provide (so far as material) as follows: 

"2. (1) All such rights, powers and liabilities obligations and restrictions from time to 
time created or arising by or under [the EC Treaty] ... are without further enactment to be 
given legal effect or used in the United Kingdom shall be recognised and available in law 
and be enforced, allowed and followed accordingly. 

3.(1) For the purposes of all legal proceedings, any question as to the meaning or effect of 
any of the Treaties, or as to the validity, meaning or effect of any Community instrument, 
shall be treated as a question of law and if not referred to the European Court be for 
determination as such in accordance with the principles laid down by and any relevant 
decision of the European Court or any court attached thereto". 

(Section 1(4) provides that the term "treaty" includes any international agreement and any 
protocol or annex to a treaty or international agreement). 

UK NATIONALITY LEGISLATION

5. A short account is called for of the relevant history of the UK nationality law. It is 
expressed in generalised terms: it is not universally accurate or without exceptions, but it 
is sufficient for the purposes of this case. United Kingdom nationality law has never 
defined the concept of "British national", and this relationship between the individual and 
the state has always been expressed in terms of different types of "citizen" or "subject". 
Before the British Nationality Act 1948 ("the 1948 Act"), the term "British  subject" was 
used to refer to a very wide class of people throughout what had been the Empire. Since 
the 1948 Act, there has been no single concept of British "nationality" or British 
"citizenship". 

6. The 1948 Act created: 

(1) the category of CUKC for people with certain specified and carefully defined 
connections with the United Kingdom or the Colonies. Members of this category were 
distinguished from citizens of other Commonwealth countries (such as Australia and 
Canada) who could only be or become such citizens by the domestic law of those 
countries and not by English law; 

(2) the category of "British subject without citizenship" for any person who "ought" in 
due course to become a citizen of an emerging independent Commonwealth country on 
the coming into force of that country's citizenship law (and who was therefore regarded 
as a "potential citizen" of that country). If such a person did not thereafter in fact become 
a citizen of that country, he would then become a CUKC; 

(3) the concept of "British subject", which included all CUKCs and all citizens of 
Commonwealth countries; "Commonwealth citizen" was an exact synonym. 

7. The Immigration Act 1971 ("the 1971 Act") (which was passed on the 28th October 
1971) was designed to meet the perceived problem that there were many CUKCs all over 
the world with different connections with the UK. The 1971 Act created the concept of 
"patriality" to reinforce the existing immigration control by more clearly identifying 
those who were, and those who were not, subject to such control. Those with patriality 
had the right of abode and were not subject to immigration control, and those without 
patriality did not have the right of abode and were subject to immigration control. The 
passing of this Act was followed shortly afterwards (on the 22nd January 1972) by the 
signing by all the Member States of the Treaty of Accession of the UK to the EC ("the 
Accession Treaty") and the Final Act. 

8. The 1981 Act abolished the status of CUKCs and divided all former CUKCs into three 
categories: 

(a) British Citizens ("BCs"). This category comprised CUKCs who had the right of abode 
in the UK; 

(b) British Dependent Territories Citizens ("BDTCs"). This comprised CUKCs who did 
not have the right of abode, but satisfied certain conditions concerning connections with a 
British Dependent Territory. The expectation was that BDTCs would be granted 
immigration rights by that Territory; 

(c) BOCs. This comprised all CUKCs who did not become BCs or BDTCs. Lacking any 
connection with any British Dependent Territory, they might lack any immigration rights 
anywhere. 


In one sense it may be said that one effect of the 1981 Act was to separate "citizens of the 
United Kingdom" from "citizens of the Colonies", but these were not terms used in any 
statute. Again, in one sense all these categories of people could be said to be "British 
nationals". But that is not a term which is used by the 1981 Act (or any other Act). The 
1981 Act also created a category of "British subject" which was different from the 
category of "British subject" defined by the 1948 Act. It was constituted by three 
categories of person which included persons who prior to the 1981 Act were British 
subjects without citizenship. Such "British subjects" were to continue to be "British 
subjects" as long as they did not acquire any other citizenship or nationality. 

DECLARATIONS 

9. It is common ground that UK domestic law recognises (as indicated above) a number 
of separate categories of British citizenship and provides no clear guidance as to who 
holds the nationality of the UK for the purposes of Article 8.1 of the EC Treaty; that the 
guidance on this question has to be found in European Law and that the position under 
European law must then be mirrored in English law. (I am specifically requested by both 
parties not to express a view as to the status of the declarations in English law and 
whether they can be taken into account in the construction of the 1972 Act, and I shall 
accede to this request). It is apparent that, in order to provide assistance in determining 
this question under European law, the UK Government made certain declarations at 
various times between 1972 (when the UK acceded as a member of the EC) and 1992 
(when the TEU was signed) purporting to limit the categories qualifying as UK nationals. (It 
may be noted that on the foundation of the EC Germany likewise made a declaration of which 
the Conference took note purporting to extending the category of those qualifying as German 
nationals). The principal issue raised before me is whether it is perfectly clear that these 
declarations are effective as a matter of European Law for this purpose. The Respondent 
submits that they are. The Applicant's case is that under European law (1) as a BOC and 
accordingly falling within one category of British national, she is a national of the UK for the 
purposes of Article 8 and accordingly a citizen of the Union; (2) the Respondent is not entitled 
to treat her and other members of a specific category of British nationals (i.e. BOCs) as not 
being British nationals so as to deny them the enjoyment of the rights otherwise attaching to 
them as British nationals under EC law; and (3) that the declarations are ineffective under 
European law to restrict or modify the scope of, or rights conferred by, Article 8. Though 
there were three declarations, the Respondent concedes that, if a question requiring a 
reference to the ECJ arises in respect of the 1972 Declaration, a like question arises in respect 
of the others. Accordingly it is sufficient on this application to concentrate on the 1972 
Declaration.

10. The term "Final Act" is normally used to designate a document which constitutes a 
formal statement or summary of the proceedings of an international conference, 
enumerating the treaties or related treaty instruments drawn up as a result of its 
deliberations together with any resolutions or "voeux" (or wishes) adopted by the 
conference. It is a r_sum_ of the work done by the conference and as such is signed by 
the parties present to affirm the authenticity of the record, but not to agree to be bound by 
the treaties or other treaty instruments enumerated in it. Treaties and other treaty 
instruments require separate signature and (to the extent necessary) ratification. A Final 
Act does not constitute a treaty save in the most exceptional circumstances when in 
substance it is a treaty rather than a summary of the proceedings at the conference: see 
Satow's Guide to Diplomatic Practice paras 31.6-11. As an alternative to a Final Act, the 
parties may instead (as an act of equivalent effect) issue an agreed communiqu_: see 
Oppenheim's International Law 9th ed. p.1187. The Final Act on the accession in 1972 of 
the UK to the European Communities included (besides the Accession Treaty and a series 
of protocols and annexes which were referred to in the treaty as forming an integral part 
of it), as an annexe to it which was not so referred to,  the 1972 Declarations Despite a 
submission to the contrary by the Respondent it is quite clear that this Final Act was not 
itself a treaty. 

11. The 1972 Declaration was to the following effect: 

"Declaration by the Government of the United Kingdom of Great Britain and Northern 
Ireland on the definition of the term 'nationals' 

At the time of signature of the Treaty of Accession, the Government of the United  
Kingdom of Great Britain and Northern Ireland make the following Declaration: 
As to the United Kingdom of Great Britain and Northern Ireland, the terms 'nationals',  
'nationals of Member States' or 'nationals of Member States and overseas countries and 
territories' wherever used in the treaty establishing the European Economic community, 
the Treaty establishing the European Atomic Energy Community or the Treaty 
establishing the European Coal and Steel Community or in any of the Community acts 
deriving from those Treaties, are to be understood to refer to: 

(a) persons who are citizens of the United Kingdom and Colonies or British subjects not 
possessing that citizenship or the citizenship of any other Commonwealth country or 
territory, who, in either case, have the right of abode in the United Kingdom, and are 
therefore exempt from United Kingdom immigration control; 

(b) persons who are citizens of the United Kingdom and Colonies by birth or by 
registration or naturalisation in Gibraltar, or whose father was so born, registered or 
naturalised." 

12. In 1981, with the reclassification of UK citizenship effected by the 1981 Act, the UK 
Government made a unilateral declaration ("the 1982 Declaration") "on the meaning of a 
UK national" (Comnd 9062) replacing the 1972 Declaration and submitted it to the 
Italian Minister of Foreign Affairs. This read as follows:

"When the United Kingdom joined the European Communities in 1973 there was  
annexed to the Treaty of Accession a formal Declaration by the United Kingdom defining 
the term 'national' in relation to the United Kingdom for the purposes of the Treaties and 
Community legislation. A precise definition was necessary to identify in terms of United 
Kingdom legislation those persons who by virtue of the close  connection with the United 
Kingdom itself or with Gibraltar would be entitled to the rights conferred by the Treaties, 
particularly in regard to free movement and the right of establishment. 

Last year the United Kingdom Parliament revised British nationality law in terms of the 
British Nationality Act 1981. The entry into force of this Act on 1 January 1983 will 
mean that the United Kingdom Declaration no longer corresponds exactly with United 
Kingdom legislation. I am to inform you therefore that that Declaration is no longer valid 
and to communicate the following Declaration on behalf of the Government of the United 
Kingdom of Great Britain and Northern Ireland to replace it:

In view of the entry into force of the British Nationality Act 1981, the Government of the 
United Kingdom of Great Britain and Northern Ireland makes the following Declaration, 
which will replace, as from 1 January 1983, that made at the time of signature of the 
Treaty of Accession by the United Kingdom to the European Communities:
As to the United Kingdom of Great Britain and Northern Ireland the terms 'nationals', 
'nationals of member States' or 'nationals of member states and overseas countries and 
territories' wherever used in the Treaty establishing the European Economic Community, 
the Treaty establishing the European Atomic Energy Community or the Treaty 
establishing the European Coal and Steel Community or in any of the Community acts 
deriving from those Treaties, are to be understood to refer to: 

(a) British citizens;
(b) Persons who are British subjects by virtue of Part IV of the British Nationality Act 
1981 and who have the right of abode in the United \kingdom and are therefore exempt 
from United Kingdom immigration control; 
(c) British Dependent Territories citizens who acquire their citizenship from a connection 
with Gibraltar.
..."

13. After the date of the 1982 Declaration, important amendments were made to the EC 
Treaty by the Single European Act ("SEA") which was signed on the 28th February 1986 
and came into force on the 1st January 1987. These included the adoption of what was 
Article 8a of the EC and is now Article 7a of the TEU concerning the completion of a 
single market. At the same time the Member States subscribed to a Joint General 
Declaration on Articles 13-19 of the SEA concerning the effect of the new provisions, 
and to the effect that control of immigration to the EC from third countries should remain 
within the competence of the Member States. When the TEU was signed on the 7th 
February 1992, there was annexed to the treaty as Declaration No 2 a Joint Declaration 
made by the Member States at the same time as the treaty was signed to the following 
effect: 

"The Conference declares that, wherever in the Treaty establishing the European 
Community reference is made to nationals of the Member States, the question whether an 
individual possesses the nationality of a Member State shall be settled solely by reference 
to the national law of the Member State concerned. Member States may declare, for 
information, who are to be considered their nationals for Community purposes by way of 
a declaration lodged with the Presidency and may amend such declarations when 
necessary." 

The TEU came into force on the 1st November 1993. No fresh declaration was 
subsequently lodged by the UK Government. 

ISSUES 

14. The first question to be determined is whether the Applicant as a BOC is a citizen of 
the Union. The parties are agreed that this requires determination whether the 
Declarations are to be taken into account in construing Article 8. The Respondent submits 
that they are (and most importantly that the 1972 Declaration is) admissible for this 
purpose. The Applicant submits that they are inadmissible. The Respondent concedes 
that, if the Declarations are not admissible as a guide to construction, the issue whether as 
a matter of construction of Article 8 the Applicant is a citizen of the 
Union is a sufficiently doubtful question that it should be referred to the ECJ. The 
Applicant concedes that, if the Declarations are so admissible and taken into account,  
(subject to one qualification) as a matter of construction of Article 8 the Applicant is not 
a citizen of the Union. The qualification is that, even if they are admissible, it is 
submitted that they should not be given weight for the reason that to do so (and 
consequently to exclude the Applicant from such citizenship) would infringe her 
fundamental rights and that for this reason the weight otherwise to be given to the 
Declarations as a matter of European law is more than counterbalanced by the 
consideration that a construction of Article 8 should be adopted which respects her 
fundamental rights. 
15. The second question only arises if the Applicant is entitled to citizenship of the 
Union. At issue on the second question is whether Articles 8 and 8A confer upon the 
Applicant as such a citizen the directly enforceable right to remain in the UK. The 
Applicant claims this right and claims also the right as such citizen to travel to Ireland 
and exercise the rights of a citizen of the Union there. The parties are agreed that, if I  
refer the issue of nationality to the ECJ, I should also refer this issue, and accordingly I 
need only deal with this issue in outline in this judgment. 

ADMISSIBILITY OF DECLARATIONS

16. The significant features of each of the three Declarations require detailing.

(a) (i) The 1972 Declaration was annexed, not to the Treaty of Accession, but the Final 
Act.

(ii) It was not an integral part of the Treaty nor was it referred to in the Treaty. 

(iii) Whilst the Member States placed on record that certain specified texts had been 
drawn up and adopted within the conference between the European Communities and the 
States which applied for accession to those Communities, including a number of 
protocols, the 1972 Declaration was not so included. 

(iv) Whilst five of the Joint Declarations annexed to the Final Act were stated to be 
adopted by the Member States and the Council and two unilateral Declarations so 
annexed were "taken note of" by the Member States and the Council, the 1972 
Declaration and some four other Declarations are merely referred to as having been made 
and annexed to the Final Act.

(b) The 1982 Declaration was a unilateral act of the UK Government designed (as it says) 
to modify the terminology used in the 1972 Declaration so as to reflect the change of 
terminology effected by the 1981 Act and to include certain categories of Gibraltarians 
who had not qualified until the 1972 Declaration as nationals of the UK. It did not effect 
any substantive change in respect of the status of the Applicant. There was no legal basis 
under European Law empowering the UK to replace the 1972  Declaration by the 1982 
Declaration (unless some basis is found retrospectively in 
the 1992 Declaration). The 1982 Declaration was published in the C Part of the Official 
Journal of the Community. No other Member State made any complaint about its making. 

(c) The 1992 Declaration was a joint declaration of the Member States annexed, not to 
the TEU, but to the 1992 Final Act and whose annexation was taken note of by the 
Member States who were signatories to the Treaty. 

I shall for the reasons already given concentrate on the 1972 Declaration. 
17. The Respondent contends that as a matter of International Law and European Law the 
1972 Declaration is admissible for the purposes of construction of the Accession Treaty. 
He relies in particular on Articles 2.1(i), 5 and 31 of the Vienna Convention which read 
as follows: 

"2.1(i) 'international organisation' means an intergovernmental organisation. 

5. The present Convention applies to any treaty which is the constituent instrument of an 
international organisation and to any treaty adopted within an international organisation 
without prejudice to any relevant rules of the organisation. 

31.1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning 
to be given to the terms of the treaty in their context and in the light of its objectives and 
purpose. 

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition 
to the text, including its preamble and annexes: 
(a) any agreement relating to the treaty which was made between all the parties in 
connection with the conclusion of the Treaty; 
(b) any instrument which was made by one or more parties in connection with the 
conclusion of the Treaty and accepted by the other parties as an instrument related to the 
treaty. 

3. These shall be taken into account, together with the context: 
(b) any subsequent practice in the application of the treaty which establishes the 
agreement of the parties regarding its interpretation. 

4. A special meaning shall be given to a term if it is established that the parties so 
intended." 

The Applicant challenges the applicability of the Vienna Convention (and most 
particularly Articles 31.2, 3 and 4) and submits that under International Law and under 
European law the declarations are inadmissible for this purpose, or at least their 
admissibility is far from being sufficiently clear to avoid the necessity for a reference of 
this question to the ECJ. I should say at once that (leaving aside questions of the 
applicability of the Vienna Convention) I am not satisfied that the Respondent's success 
is assured by invoking Article 31.3(b), for I cannot accept his novel submission that the 
1972 and 1982 Declarations "have attained the status of customary law between the 
Member States within the new legal order of the Community". 

18. I shall first consider in turn each of the arguments addressed as to the applicability of 
the Vienna Convention and most particular the provisions of Article 31. 

(a) Article 31(2) allows a declaration to form part of the context if it is annexed to a treaty 
or accepted by the other parties as an instrument related to the treaty. The Applicant 
submits that neither of these conditions is satisfied. I think that there may be force in the 
former, for the Declaration is annexed, not to the treaty, but to the Final Act. But I do not 
see how it can be said that the declaration was not accepted as an  instrument related to 
the treaty, for its annexation to the Final Act can only be explained on the basis that all 
parties recognised that the 1972 Declaration was related to the treaty. 

(b) Article 4 of the Vienna Convention provides that its application to any treaty which is 
the constituent instrument of an international organisation or to any treaty adopted within 
an international organisation shall be without prejudice to any relevant rules of the 
organisation. The Applicant submits that (without prejudice to the question whether the 
Community Treaties are of the character described), relevant rules of the Community 
exclude application of Article 31, and most particularly Article 31.1, 2 and 4. The 
relevant rules are the specific provisions for Treaty amendment (formerly Article 236 of 
the EC Treaty, now TEU Article N) and the principles established in the case law of the 
ECJ which preclude reference to such declarations. It may be questionable whether a rule 
of construction permitting reference to a related document constitutes a provision for 
amendment, but (as I set out later) there is some substance in the argument that the 
jurisprudence of the ECJ precludes such reference and accordingly constitutes a rule to 
the contrary. 

(c) The Vienna Convention applies to treaties which are the constituent instrument of or 
adopted within an "international organisation" (a term defined as meaning "an inter- 
government organisation"). The Applicant says that this is not a proper description of the 
Community. In this context reference is made to a passage in the Judgment of the ECJ in 
Opinion 1/91 [1991] ECR I-6084 at I-6102 ("the EEA Opinion) which concerned the 
legality of entry by the Community into an agreement with the European Free Trade 
Association ("EFTA") for the creation of the European Economic Area ("EEA"). The 
passage reads as follows: 

"20. The EEA is to be established on the basis of an international treaty which, 
essentially, merely creates rights and obligations as between the Contracting Parties and 
provides for no transfer of sovereign rights to the inter-governmental institutions  which 
it sets up. 

21. In contrast, the EEC Treaty, albeit concluded in the form of an international 
agreement, none the less constitutes the constitutional charter of a Community based on 
the rule of law. As the Court of Justice has consistently held, the Community treaties 
established a new legal order for the benefit of which the States have limited their 
sovereign rights in ever wider fields, and the subject of which comprise not only  
Member States but also their nationals (see, in particular, the judgment in Case 26/62 Van 
Gend en Loos [1963] ECR 1). The essential characteristics of the Community legal order 
which has thus been established are in particular its primacy over the law of the Member 
States and the direct effect of a whole series of provisions which are applicable to their 
nationals and to the Member States themselves. 

I think there is some force in this submission, which is supported by the distinction 
between the approach to construction appropriate to treaties (as set out in Article 31 (1) 
of the Vienna Convention) and the approach to construction of constitutions which are 
living and developing institutions. As Lord Diplock said in Henn and Darby v. DPP 
[1981] AC 850 at 892: 

"The European Court, in contrast to English courts, applies teleological rather than 
historical methods to the interpretation of the Treaties and other community legislation. It 
seeks to give effect to what it conceives to be the spirit rather than the letter of the 
Treaties; 
sometimes, indeed, to an English judge, it may seem to the exclusion of the letter. It 
views the communities as living and expanding organisms and the interpretation of the 
provisions of the treaties as changing to match their growth."
This distinction is reflected in the approach to construction of Community Treaties laid 
down by the ECJ in Van Gend en Loos Case 26/62: 

"The first question of the Tariefcommissie is whether Article 12 of the Treaty has direct 
application in national law in the sense that nationals of Member States may on the basis 
of this Article lay claim to rights which the national courts must protect. To ascertain 
whether the provisions of an international treaty extend so far in their effects it is 
necessary to consider the spirit, the general scheme and the wording of those provisions. 

The objective of the EEC Treaty, which is to establish a Common Market, the 
functioning of which is of direct concern to interested parties in the Community,  implies 
that this Treaty is more than an agreement which merely creates mutual obligations 
between the contracting states ... 

The conclusion to be drawn from this is that the Community constitutes a new legal order 
of international law..." 

(It may be noted that the last three words, namely "of international law", are omitted in 
the description of the new legal order in the passage I have cited from the later EEA 
Opinion). The order of priority in Article 31.1 of the Vienna Convention is terms of 
treaty, context and objectives and purpose; the order of priority in case of Community 
Treaties is spirit, the general scheme and the wording. 

(d) The fourth submission is that the Vienna Convention does not bind the Community or 
apply to treaties entered into by the Community, and that account may only be taken of 
Articles of the Convention so far as they codify or represent international customary law; 
and that, though this may extend to Article 31(1) which may today represent international 
customary law, Articles 31(2), (3) and (4) do not, or least it is uncertain whether they do. 
Undoubtedly the ECJ has on a number of occasions referred to provisions of the Vienna 
Convention and treated them as applicable in cases involving the construction of treaties 
entered into by the European Community with third party states, but in no case has it yet 
treated the Vienna Convention as applicable in a case where questions arose as to the 
construction of the Community Treaties themselves or as to their scope. In the case of Re 
Flynn [1995] 3 CMLR 397, McCullough J. read passages in the EEA Opinion as holding that 
the Vienna Convention applied to the construction of Community Treaties and he followed 
this holding. With respect, I must disagree: the passages in question in my reading of them 
treat the Vienna Convention as applicable to the construction of the EEA Treaty. In any event 
this issue was faced in a case decided in June of this year, A. Racke GmbH & Co. Case 
C-162/96 ("Racke"). The Opinion of Advocate General Jacobs (paras 29, 73, 76 and 83) and 
the Judgment of the ECJ (paras 24 and 53) in that case establish the proposition that the 
Vienna Convention does not bind the Community; that some of the provisions of the Vienna 
Convention do and some do not reflect customary international law; that the dividing line 
between those which do and those which do not is "largely uncharted waters" and fraught with 
uncertainty; and that only those which do (as an aspect of international law) can come  into 
play in construction of Community Treaties. No authority or textbook has been cited to me 
which supports the proposition that Articles 31.2(b), 3 and 4 of the Vienna Convention 
represent international customary law. I therefore consider that as a matter of international law 
it is not clear that the Declarations in this case are admissible for purposes of construction of 
the Community Treaties. 

19. I turn now to the Applicant's submission that the rules of the Community exclude 
application of Article 31.2(b), 3 and 4 and most particularly recourse to declarations for 
the purpose of modifying or construing a Community Treaty. I think that there is force in 
this submission. The case law of the ECJ provides support for the general proposition that 
declarations made by Member States are not effective to modify the scope or to affect the 
construction of a Community Treaty previously made because "apart from any specific 
provisions the Treaty can only be modified by means of the amendment procedure 
carried out in accordance with Article 236": (see Defrenne Case 43/75); and that 
declarations made by Member States contemporaneously with the making of a Council 
Directive are not effective to modify or affect the construction or the scope of that 
Directive: see Antonissen [1991] ECR I-745. There is only one authority bearing on the 
question whether a declaration contemporaneous with a Community treaty is admissible 
on the construction of that treaty, namely the case of Ferrugia Case T-230/94. In that case 
there was a claim against the Commission the success of which depended upon the 
claimant establishing that he was not a national of the UK. For this purpose the claimant 
relied on the Declarations in issue in this case.
The Commission conceded that the claimant was not a United Kingdom national by 
reason of the Declarations and on this basis the Court of First Instance gave judgment in 
favour of the claimant. In view of the concession, I do not think that this goes further than 
indicate that (without any contrary argument) it did not appear obvious to the 
Commission or the Court that the Declarations were inadmissible.

20. The question of the standing of a joint declaration made on amendment of the existing 
treaty by the SEA has been the subject of dispute between distinguished professors of 
European Law. The question related to what is now Article 7A which provided that all 
the measures necessary for the internal market had to be adopted by the 31st December 
1992. There was a Joint Declaration of the Member States made at the same time as the 
SEA that setting the date of the 31st December 1992 did not have any automatic effect. 
Professor Toth in (1986) 23 CML Rev 803 at 812 wrote that the Joint Statement had no 
legal effect, could not amend Article 7A and could not be taken into account by the ECJ 
in interpreting Article 7A. Professor Schermers in (1991) 28 CML Rev 275 took the 
opposite view. In Re Flynn supra, McCullough J. was faced with this very question. As I 
have already said, he took the view that the ECJ had held that the Vienna Convention 
applied to the construction of Community Treaties, and he saw himself faced with the 
apparent conflict created by this ruling (which required him to apply Article 31 of the 
Vienna Convention to the construction of Article 7a of the Treaty) and the rule laid down 
in Antonissen supra that a contemporaneous Declaration by the Member States on the 
making of a Directive was inadmissible. In this predicament, he held that the question 
whether the ECJ would hold that a declaration made contemporaneously with a 
Community Treaty was or was not admissible was sufficiently uncertain as to require for 
its determination a reference to the ECJ. The case for the Applicant for a reference is 
much stronger in this case than in Flynn if I am correct as to the proper reading of the 
passage in the EEA Judgment and if regard is given to the later judgment of the ECJ in 
Racke. 

21. The Respondent accepts that in this state of the authorities a reference may be 
required if a decision has to be made whether reliance can be placed on the 1982 or 1992 
Declarations, but submits that the position is different in the case of the 1972 Declaration 
because it was made by a Member State on accession to the Community. No authority 
was cited to support the proposition that any such distinction is to be made on this basis 
between one form of declaration and another and it seems to me that, if it is to be made, it 
must be made by the ECJ. I fully appreciate the sense, 
value and importance to all other Member States (most particularly on the original 
establishment of the Community and on the acceptance of new members) of a definition 
in the form of the 1972 Declaration of "citizen of the United Kingdom", for this is the 
passport to the rights conferred by the Community Treaties on nationals of a Member 
State as citizens of the Union, but that is not necessarily a sufficient reason in law for 
holding the 1972 Declaration effective for this purpose. It is however a reason for seeking 
an authoritative determination by the ECJ. I therefore shall refer the question whether the 
Applicant is a citizen of the Union and the legal effect of the three declarations to the 
ECJ. 

ALTERNATIVE BASIS OF CLAIM TO UNION CITIZENSHIP 

22. The Applicant submits that, if as a matter of European law the 1972 Declaration is 
admissible as part of the context to construe the words "national of a Member State" in 
the TEU, as a matter of construction any weight to be given to the 1972 Declaration is 
nonetheless outbalanced by the weight which should be given to the consideration that a 
construction of Article 8 is to be avoided which limits the scope of EC rights in a manner 
which interferes and is incompatible with the fundamental rights of the Applicant and 
other BOCs. In short the argument runs that the jurisprudence of 
the ECJ (e.g. Case C-260/89 Elliniki Radiophonia Tileorassi AE [1991] ECR I-2925 at 
2963-4) and Article F(2) of the Treaty (introduced by the TEU) requires respect for 
fundamental rights; and that one such right protected by Article 3(2) of Protocol No 4 to 
the European Convention on Human Rights requires respect for the right of a national to 
enter his own country; that, whilst the UK is not a party to this protocol, it is part of the 
corpus of law to be taken into account by the ECJ in construing the Treaty; and that this 
requires a construction to be adopted which entitles BOCs to enter and remain in Britain. 
I shall say no more about this argument than that both  parties agree that it should be 
referred to the ECJ if the issue of the effect of the declarations is to be referred, and in the 
circumstances I think that it is proper to do so. 

RIGHT TO REMAIN IN THE UK 

23. A BOC has no right of abode within the UK under the domestic law of the UK. The 
Applicant however contends that a BOC has such a right as a citizen of the Union under 
Article 8a under European law. It is common ground that, if she has a right, then UK 
domestic law must give effect to that right and indeed does so under Section 7(1) of the 
Immigration Act 1988. The language of Articles 8 and 8a in my view is not purely 
declaratory, but is apt to have substantive legal effects without further measures of 
implementation and to confer the right to "reside freely within the territory of the 
Member States" with no distinction to be drawn between the territory of the Member 
State of which the citizen is a national and the territory of other Member States (see Van 
Gend en Loos Case 26/62 page 13). Article B of the TEU proclaims that Union objectives 
include strengthening the rights and interests of the nationals of the Member States 
through the introduction of citizenship of the Union, and Articles 8 and 8a are adopted as 
amendments to the EC Treaty, which lies within the competence of the ECJ to monitor 
and enforce. The Divisional Court in R v. Home Secretary Ex parte Adams [1995] All 
ER (EC) 177 was sympathetic to this approach and directed a reference to the ECJ to 
determine its correctness. The reference was later withdrawn when the exclusion order 
made in that case (which was the occasion for the proceedings) was 
withdrawn. 

24. There is a long line of rulings of the ECJ (including at least one subsequent to the 
entry into force of the TEU) excluding reliance on EC rights by third country nationals 
who are spouses or dependants of an EC national when that EC national has voluntarily 
never exercised or sought to exercise any rights of free movement under any of the 
provisions of the EC Treaty: in such situations EC law has been held inapplicable to a 
wholly internal situation, which is accordingly governed by the domestic law of the 
national in question: see e.g. Saunders Case 175/78, Morson and Jhanjan Case 36/82 
and Uecker and Jacquet [1997] ECR1-3171. The one case decided  after the TEU 
came into force, namely Uecker and Jacquet, was concerned with Article 11 of 
Regulation 1612/68 which granted certain rights specifically and exclusively to 
migrant workers. A Chamber of the ECJ (not surprisingly) held that Article 8a did not 
operate to rewrite Article 11 so as to extend the grant of rights to the migrant workers' 
wives who came from countries outside the Union. I do not think that these authorities 
are a serious (let alone insuperable) obstacle to the success of the Applicant who 
(if she succeeds on the issue of nationality) will not be a third party  national, but a citizen of the Union who wishes to exercise her rights under Articles 8 and 8a and her free movement and other EC rights but is being prevented from doing so. 

There are passages in the reasoning of the Court of Appeal in R v. Secretary of State for 
the Home Department Ex parte Phull [1995] [1996] Imm AR 72 which support the view 
that Article 8a does not operate in favour of a national in the state of his own nationality 
and has no direct effect; and the position taken in that case 
has been adopted by the Court of Appeal in R v. Secretary of State for the Home 
Department Ex parte Vitale [1996] All ER (EC) 461. But this view may be open to 
question in the light of the subsequent Opinion of Advocate General La Pergola and the 
Judgment of the ECJ given on the 12th May 1998 in C-85/96 Martinez Sala v. Freistaat 
Bayern. In the circumstances the parties are agreed that, at the same time as I refer the 
other questions to the ECJ, I should also refer this question. The issue as to the existence 
of directly enforceable rights of a citizen of the Union to reside in his own Member State 
is one of profound importance and raises questions of fundamental rights. In the 
circumstances I think it right to refer this question also. 

CONCLUSION

25. I accordingly refer to the ECJ the questions raised as to the Applicant's citizenship of 
the Union and her rights as such, and most particularly her right to remain here. These 
issues (and the question involved as to the legal effect of declarations by Member States) 
by reason of their fundamental importance are eminently suitable to be decided by the 
ECJ and indeed require resolution as a matter of urgency. I should add in conclusion an 
acknowledgement of my indebtedness to the sustained efforts of all Counsel to impart to 
me some part of their deep knowledge of European law and of UK nationality law. 

So far as I have it right, the credit belongs to them: 
responsibility for any errors is mine alone.