FROM THE FILES OF THE FBI 279
[newspaper article, undated, but is probably the 2/15/74 Times of London
article referred to in FBI FILE 278; xerox in very poor condition]
[illegible words] English Case to [illegible word] Court
--Scientologist claims right of entry to Britain
Van Duyn v Home Office
B[?] are Sir John Pennycuick, Vice-Chancellor
His Lordship referred to the European Court at Luxembourg for a
preliminary ruling under Article 177 of the Treaty of Rome, certain
questions relating to an action in which a Dutch Scientologist is claiming
a declaration that she is entitled to enter the United Kingdom. It is the
first reference made by an English court.
The applicant, Miss Yvonne Van Duyn, was returned to Holland when she
arrived at Gatwick airport last May. She seeks a declaration that she is
entitled to enter and remain in the United Kingdom [?] accepting
employment with the Church of Scientology. The Home Office contends that
the refusal of entry was justified.
Article 48 of the Treaty reads: "1. Freedom of movement for workers shall
be secured within the Community by the end of the transitional period at
the latest. 2. Such freedom of movement shall entail the abolishment of
any discrimination based on nationality between workers of the member
states as regards employment, remuneration and other conditions of work
and employment. 3. It shall entail the right, subject to limitations
justified on grounds of public policy, public security or public health :
(a) to accept offers of employment actually made; (b) to move freely
within the territory of member states for this purpose; (c) to stay in a
member state for the purpose of employment in accordance with the
provisions governing the employment of nationals of that state laid down
by law, regulation or administrative action; (d) to remain in the
territory of a member state after having been employed in that state,
subject to conditions which shall be embodied in implementing regulations
to be drawn up by the Commission."
Article 3 of the 1964/221 Directive of the EEC Council provides: "1.
Measures taken on grounds of public policy or of public security shall be
based exclusively on the personal conduct of the individual concerned."
Mr. Alan Newman for Miss Van Duyn; Mr. Peter Gibson for the Home Office.
HIS LORDSHIP said that the issue turned for all practical purposes on the
construction of certain provisions in the Treaty of Rome and directives
given pursuant to the Treaty, the combined effect of which was that a
member state of the European Community could refuse entry to its country
on the grounds of public policy but that measures taken on those grounds
had to be based exclusively on the personal conduct of the individual.
Before the court was a motion by Miss Van Duyn seeking an order that
certain questions should be referred to the European Court for a
preliminary ruling.
The Church of Scientology--a body established in the United
States--functioned in the United Kingdom through a college at East
Grinstead. There was no evidence as to its constitution but there was no
doubt that the government of this country regarded its activities as
contrary to public policy. The Minister of Health announced in the House
of Commons on July 25, [?] At it was general government policy not to admit
into the [?] Scientology workers and [?] who were foreign nationals and
that he had withdrawn acceptance of the college as an educational
establishment. There had been no suggestion, however, that the activities
of the church were unlawful.
This country acceded to the Treaty of Rome by the European Communities
Act, 1972. The Home Office had not altered its adverse view of the church
and maintained that there was nothign in the Treaty or its secondary
legislation which prevented it from continuing to refuse entry to persons
connected with that body.
Miss Van Duyn was a Dutch national who had been engaged in the study and
practice of Scientology abroad. Having been offered employment with the
church at [?] college in East Grinstead, she was examined by an
immigration officer when she arrived at Gatwick and was refused entry.
The official refusal of leave to enter stated that the Secretary of State
considered it undesirable that she should be allowed entry to take up
employment with the church. It was understood that the immigration officer
was acting, not on instructions given by the Secretary of State
personally, but on similar instructions given by the Home Office. There
was a right of appeal under the Immigration Act, 1975, but it was not
thought Miss Van Duyn had exercised that right.
By her writ issued on December 12, she claimed that Article 48 of the
Treaty of Rome gave her the right, subject to limitations on grounds of
public policy, to be employed in a member state and to move freely and to
stay there for that purpose. She further claimed that under Directive
64/221, adopted in accordance with the Treaty, measures taken on grounds
of public policy were to be based exclusively on the personal conduct of
the individual concerned; and that refusal to grant her leave to enter had
not been based exclusively on her personal conduct but on a general
government policy, announced in 1968, not to admit Scientology workers and
students who were foreign nationals. That policy, she stated, had been
confirmed by the Home Office in a letter to the Church of Scientology in
April, 1973.
The Home Office denied that the directive was directly applicable so as to
confer on individuals rights enforceable by them in United Kingdom courts.
If the court should decide that it was applicable, then the defence would
be that refusal to admit Miss Van Duyn was based on her personal conduct
within the meaning of Article 3 of the directive, in that she had worked
in a Scientology establishment in Amsterdam prior to which she had studied
Scientology, and was now a practicing Scientologist and intended to work
at a Scientology establishment in the United States.
The pleadings raised two broad issues: (1) Was refusal of entry based on
personal conduct within the meaning of Article 48? (2) Was the Treaty
directly applicable so as to confer on Miss Van Duyn a right of action in
this country, and was Directive 64/221 similarly directly applicable?
Article 48 of the Treaty, when read in conjuction with Article 3 of the
directive, clearly raised a question of interpretation. If Article 48
stood alone it might perhaps be clear enough; the member state was to be
the sole judge of its own public policy. But the directive introduced a
new element--the individual's personal conduct.
Mr. Newman and Mr. Gibson had advanced fundamentally opposing views as to
the meaning of that expression. Mr. Gibson said that it covered the
position and that his view was so clearly right as to preclude the
necessity of a reference. His Lordship was wholly unable to accept that
contention. It seemed that, at the lowest, Mr. Newman's view that it did
not might well be arguable; it might even be put higher than that.
Article 177 gave the court jurisdiction to give preliminary rulings
concerning (a) the interpretation of the Treaty, (b) the validity and
interpretation of acts of institutions of the Community, (c) the
interpretation of the statutes of bodies established by an act of the
Council where those statutes so provided. A decision was necessary in the
fullest sense of the word to enable the court to give judgement in the
present case. That being so, he should certainly exercise his discretion
by requesting the European Court to give a ruling.
It had not been suggested that Article 177 was not applicable to
interpretation of the Treaty in connexion with secondary legislation. The
interpretation of Article 48 in isolation, and without the 1964 directive,
would be meaningless.
Mr. Gibson had contended that if a reference was to be made it should be
deferred until after the trial of the action or, at any rate, until after
discovery. There was no doubt that, in general, issues of fact and of
national law should be determined before a reference was made to the
European Court, since the determination of those issues might make the
reference, with the expense and delay involved, unnecessary. In the
present case, however, there was no substantial issue of fact and no issue
at all of national law, and there was no advantage in bringing the action
on for hearing before making such a reference. Nor was there the
slightest prospect of any document being produced on discovery which would
throw any new light on the matters pleaded.
Mr Gibson had contended that the national court should not overburden the
European Court with references, but the national court was bound to make a
reference in any appropriate case and in any event the present issue was
of the very first importance.
There had been only one case in which the English courts had been asked to
make a reference: Lowenbrau Munchen v Grunhalle Lager International Lts
(The Times, November 28, 1973; [1974] CMLR 1), but Mr. Justice Graham
refused to make a reference at an interlocutory stage. However, his
Lordship would adopt a passage from the judgement: "As I read the Treaty,
references are not to be made unnecessarily, but on the other hand the
power to refer is not confined only to courts whose decisions are final,
or to any particular stage of a case. It seems to me therefore that if I
felt in this case in need of guidance upon the interpretation of any
Article of the Treaty and that such guidance was necessary for my decision
I have unfettered power to refer the matter to the EEC Court. Such
appears to me to be the clear intention of the Treaty from its wording..."
The question whether any given provision in the Treaty was enforceable by
an individual in the national court of a member nation ("direct
applicability") had been construed by the European Court in connexion with
various Articles of the Treaty and in certain cases the courts had held
that the Article 48 was directly applicable.
His Lordshhip would only be justified in refusing a reference on the
ground that Article 48 was not directly applicable if that was [?] Mr.
Gibson had properly conceded at any rate, that it was an open question and
his Lordship did not propose to say any more on the point.
The four questions which Miss Van Duyn sought to have referred to the
European Court were:
"(1) Whether Article 48...is directly applicable so as to confer on
individuals rights enforceable by them in the courts of the United
Kingdom.
(2) Whether Directive 64/221...is directly applicable so as to confer on
individuals rights enforceable by them in the courts of the United
Kingdom.
(3) Whether the [Home Office] refusal, based on grounds of public policy,
to allow the plaintiff leave to enter the United Kingdom in order to take
employment with the Church of Scientology on the basis that it is
undesirable to give anyone leave to enter the United Kingdom on the
business of or in the employment of that organization' is contrary to: (i)
The provisions of Article 48 (1) and (2) and/or Article 1 of Regulation
1612/65 and/or Article 3 (1) of Directive 64/221 in so far as the effect
of the said policy is to discriminate between nationals of other member
states of the EEC and United Kingdom citizens (upon whom no similar
restrictions are placed); and (ii) The provisions of Article 3 (1) of
Directive 64/221 in so far as the said policy is of general application.
(4) Whether all or any of the following matters, namely:-- (i) that the
plaintiff has worked in a Scientology establishment in Amsterdam for six
months; (ii) that the plaintiff has taken a course in Scientology; (iii)
that the plaintiff is a practising Scientologist in the sense that she
subscribes in the doctrines and beliefs of the Church of Scientology; (iv)
that the plaintiff intends to work at a Scientology establishment in the
United Kingdomis capable of amounting to personal conduct within the
meaning of Article 3 of Directive 64/221."
It was well established that the function of the European Court was
confined to the interpretation of the Treaty of Rome and that once the
relevant provisions had been interpreted, it was for the national court to
apply that interpretation to the particular case before it. It was no
doubt often impossible to frame a question for interpretation within the
framework of the particular facts, but it was nevertheless necessary to
frame a que[?] so that it could be answered [?] as a question of
interpretation [?] the European Court.
Having regard to the terms of question (3), his Lordship thought it right
to say that [?] 48(2) was of no relevance, [?] there was no objection to
its inclusion. His Lordship handed down to counsel a draft of a
question to replace questions [?]
Solicitors Mr. Stephen H. [?] Treasury Solicitor.
