R v Secretary of State for the Home Department, ex parte Kaur (Manjit) 11 Dec. 1998 Crown Div Case No CO/985/97 [1998] EWHC 951 (Q.B. 11 Dec. 1998) 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.