Judgment — ECLI:EU:C:1998:368
Date: 1998-07-16
Language of the case: English
Court formation: Full Court
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Accession;Free movement of workers
Concepts: Free movement of persons
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

summary which follows in the text, I 
have referred to the following legal writings: R. O. Plender, 
The Protocol, the Bailiwicks and the Jersey Cow, in R. O. 
Plender-A. K. R. Kiralfy, Legal History and Comparative 
Law: Essays in Honour of Albert Kiralfy, London, 1990, 
pp. 143-163; L. Fransman, British Nationality Law, London, 
1989, esp. pp. 71, 132-136 and 809-810; S. A. Horner, The 
Isle of Man and the Channel Islands. A Study of Their Status 
Under Constitutional, International and European Law, 
European University Institute Working Paper N o 98, San 
Domenico, 1984; K. R. Simmonds, United Kingdom 
— Appendix: British Islands, in V. Knapp (ed.), International 
Encyclopedia of Comparative Law, The Hague-Tubingen, 
1976, pp. 103-106; ibid., The British Islands and the Com­
munity: I—Jersey, C. M. L. Rev., 1969, pp. 156-169. 
I -4610 
PEREIRA ROQUE ν LIEUTENANT GOVERNOR OF JERSEY 
Like the other British islands, 2 it is neither a 
part nor a colony of the United Kingdom. 3 
Instead it is a dependency of the British 
Crown, 4 whose constitutional relationship 
(or modus vivendi) with the United King­
dom has developed in a form which cannot 
be fitted into a rigid framework, 5 based as it 
is on an unusual and delicate balance 
between monarchical rights and the respon­
sibilities of the island authorities for self-
government. 6 Jersey enjoys a large measure 
of legislative, administrative and judicial 
autonomy in relation to the United King­
dom. 7 
2 — That is to say, the other Channel Islands (the Bailiwick of 
Guernsey, the islands of Alderney, Brechou, Sark, Herm, 
Jcthou, Li hou and other islets, mostly uninhabited) and the 
Isle of Man. 
3 — See Royal Commission on the Constitution 1969-1973, Vol. I 
(Report), paragraph 1347. For the purposes of nationality, 
however, the British Nationality Act 1948 provided that ref­
erences in that statute to colonies were to be construed as 
including references to the Channel Islands and the Isle of 
Man (Section 33(1)). As a result, citizens of the Channel 
Islands were declared citizens of the United Kingdom and 
colonies (although having the right to be referred to as citi­
zens of the United Kingdom, islands and colonies). 
With effect from the entry into force of the British National­
ity Act 1981 on 1 January 1983, while the remaining colonies 
of the United Kingdom were classified as British Dependent 
Territories — and persons having a sufficient link with any 
one of those territories became British Dependent Territories 
citizens — , the British islands became, for the limited pur­
poses of nationality, part of the United Kingdom, and their 
citizens were reclassified as British citizens (see point 14 
below). 
4 — As their French name (les îles Anglo-Normandes) would 
imply, the Channel Islands belonged for a time (from 933, to 
be precise) to the Duchy of Normandy. After the Norman 
conquest of England in 1066, although England and the 
Duchy of Normandy were united under a single Crown, the 
Channel Islands became unassimilated possessions of the 
King of England. 
When, in 1204, the English Crown lost continental Nor­
mandy to the French Crown, it was agreed that the English 
Crown would retain its sovereignty over the Channel 
Islands, thus remaining responsible for their external rela­
tions. English sovereigns continued, in effect, to govern them 
in their capacity as Dukes of Normandy until that title was 
abandoned in 1259; and even afterwards they maintained 
their claim to the inseparability of the Channel Islands from 
the Crown, which was finally recognised by French sover­
eigns in the late Middle Ages. The Channel Islands thus rep­
resent the only part of the former Duchy of Normandy still 
attached to the British Crown. 
5 — Although attempts have been made in legal writings to arrive 
at a precise definition of the constitutional status of the Brit­
ish islands. According to Horner (op. cit. in footnote 1 
above, pp. 40-50), since the islands (i) are not treated as part 
of the metropolitan territory under the British constitution, 
(ii) do not enjoy democratic representation at central level, 
and (iii) show a number of analogies with the position of 
possessions generally acknowledged as 'colonial', the rela­
tionship between the British islands and the United King­
dom should be classified at the constitutional level as 'quasi-
colonial'. 
6 — See Simmonds, The British Islands and the Community, 
cited in footnote 1 above, p. 160. Horner states that 'the 
present relationship between Westminster and the islands is 
characterised by a dichotomy between the legal norms and 
the situation in reality. The central doctrine of the supremacy 
of the [British] Parliament extends to the islands by virtue of 
the Crown's responsibility for their good government. The 
main facets of the relationship, however, are based on extra­
legal factors: lone-standing traditions, historical autonomy, 
and a form of political equilibrium which has been arrived at 
without recourse to legal devices.' See op. cic, footnote 1 
above, p. 39. 
7 — The island's judicial system comprises the Lower Court and 
the Royal Court (which is the referring court in this case); at 
second instance, a single Channel Islands Court of Appeal, 
with jurisdiction in civil and criminal matters, functions for 
the whole of the Channel Islands. Final jurisdiction is exer­
cised by a British body, namely the Judicial Committee of 
the Privy Council, which is traditionally the court of final 
instance for cases brought in the British colonies (and in 
ex-colonies which have not abolished the procedure), but has 
no jurisdiction over the United Kingdom; see Horner, op. 
cit. footnote 1, p. 50. The authority of the Judicial Commit­
tee to resolve such disputes with reference to the island of 
Jersey derives from the prerogatives of the sovereign, as the 
source of all justice, to rule on appeals from the judges in her 
realm. 
The single legislative body of the island, recognised as such 
by the British Government since 1771, is the States of Jersey. 
The members of the States, which constitutes an emanation 
of the Royal Court, are partly designated by the Crown but 
in the great majority of cases elected. The competence of the 
States is limited to those matters — such as taxation, finance, 
agriculture and fisheries, criminal law, mining rights, police, 
social services, trade and professions —that do not tran­
scend the boundaries of the island. Even today, the sources 
of Jersey legislation comprise: (i) the ancient customary law 
of the Duchy of Normandy (as dcduciblc from the Grand 
Coutumier du Pays et Duché de Normandie of the 13th cen­
tury, sporadic compilations of statutes and published deci­
sions of the Privy Council and the Royal Court); (ii) Royal 
Charters, by means of which (from the Royal Charter of 
Edward III in 1241 to that of Charles II in 1662) English 
sovereigns emphatically reiterated the privilege of the British 
islands to be governed in accordance with their ancient cus­
toms, clearly with the purpose of ensuring the loyalty of the 
islanders, who occupied a forward position strategically 
located at the threshold of the territory of the traditional 
enemy, France. In particular, the Royal Charter of Elizabeth 
I of 1559 confirmed the exclusive jurisdiction of the Royal 
Court of Jersey (save in cases of habeas corpus and treason) 
and the exemption (subsequently confirmed by statutes of 
1952 and 1979) of island products from customs duties on 
importation into the United Kingdom, their main market); 
(iii) Orders in Council of the British sovereign (see below); 
(iv) Acts of the British Parliament specifically declared appli­
cable to the Channel Islands (see below); (v) statute law, as 
codified in the Jersey Code in 1771; (vi) Acts of the States of 
Jersey and related regulations and implementing orders 
(which the States typically adopts in the form of bills (projets 
de loi) subject to the approval of the Crown (Her Majesty in 
Council), expressed through the assent of the Privy Coun­
cil); and (vii) triennial regulations (reniements) adopted 
by the States in purely local or administrative matters. 
Such measures do not require confirmation by an Order in 
Council. 
I -4611 
OPINION OF MR LA PERGOLA — CASE C-171/96 
4. Furthermore, Jersey and the other British 
islands do not have international personality 
(understood as the power to act indepen­
dently) and thus constitute, for international 
law purposes, mere territorial subdivisions of 
the United Kingdom. 8 Whilst that conclu­
sion appears at first sight to be incompatible 
with the above observations on the relations 
between Jersey and the United Kingdom in 
terms of internal constitutional law, the con­
tradiction is merely apparent. The unusual 
constitutional position reserved for the Brit­
ish islands may be regarded merely as a form 
of self-government laid down by the domes­
tic constitution of the United Kingdom in 
relation to a part of its own national terri­
tory. 9 
As stated earlier,10 the conduct of and 
responsibility for the international relations 
of the British islands belong to the Crown, 
which acts through the Government of the 
United Kingdom. 
Under public international law, treaties — 
together with all the acts whereby each State 
expresses its intention to become party to 
them: signature, ratification, accession — are 
presumed to apply not only to national ter­
ritory, but to all territories for whose inter­
national relations each contracting State is 
responsible, save where that presumption is 
superseded by an express or implied limita­
tion in the territorial scope of the agreement 
(such as could result, for example, from a 
As for the underlying power of the British Parliament (in 
which the British islands are not represented) to legislate for 
the islands, it is in practice exercised subject to a number of 
important customary limitations (which, according to at least 
one school of thought, subscribed to by Plender among oth­
ers (op. cit. p. 145), go so far as to constitute binding consti­
tutional conventions). On the one hand, the Channel Islands 
enjoy the fundamental right and privilege of exemption from 
United Kingdom taxation, and generally —save for rare 
exceptions —from British legislation on matters of purely 
local interest, in respect of which the metropolitan Parlia­
ment may legislate only with the consent and participation 
of the island bodies. In all other matters, British legislation 
applies to the territory of the Channel Islands not automati­
cally but by express provision or implied extension. In the 
absence of express provision, Acts of the British Parliament 
may authorise the Queen to extend the effect of newly 
adopted laws, with such modifications as may be necessary, 
to the Channel Islands by means of an Order in Council. 
Acts of the British Parliament intended to be applied in the 
Channel Islands must be sent to the Royal Courts of Jersey 
and Guernsey for registration. Whilst such registration may 
not be unreasonably withheld, transmission to the Royal 
Courts gives the competent island authorities the opportu­
nity to consider whether the legislation which it is proposed 
to extend to the islands conflicts in any way with their 
acknowledged rights and privileges. Moreover, the power to 
legislate for the British islands (save for modifications of an 
institutional or constitutional nature), even at the request of 
the States of Jersey, resides first and foremost, and funda­
mentally, with the Crown, as a royal prerogative and by way 
of succession to the title of the Duchy of Normandy (see 
footnote 4 above, and the text relating thereto). The Crown 
exercises that power by means of orders adopted — typically 
by delegated authority from Parliament — on the advice of 
the Privy Council (Orders in Council). Orders in Council 
are also sent to the Royal Court for registration. Where the 
latter raises objections concerning the compatibility of an 
Order in Council submitted for registration with the consti­
tutional privileges of the island, it ts customary for the Brit­
ish Secretary of State for Home Affairs (the Home Office) to 
advise the Crown to desist from the request, in order to take 
into consideration such alternative proposals as may be made 
by the local legislature. 
Finally, administration of the island is reserved for the Bai­
liff, chosen by the Sovereign, who also assumes the offices of 
chief legal officer and president of the States of Jersey. The 
administrative tasks assigned to the Lieutenant Governor, 
who represents the Crown in the island and constitutes the 
principal organ linking the States of Jersey and the British 
Government, have been redefined over the years and are 
now in practice fairly modest. 
Β — Horner (op. cit footnote 1, pp. 80-83) deduces Jersey's lack 
of international personality from the dual fact that the island: 
(i) does not participate in the conclusion of international 
agreements independently from the United Kingdom (the 
only instruments analogous to such agreements which can be 
found in practice being treaties for the prevention of double 
taxation concluded by Jersey with the United Kingdom and 
Guernsey in 1952 and 1956 respectively); and (ii) is not inde­
pendently a member of international governmental organisa­
tions. 
9 — Ibid., p. 89. The conclusion indicated in the text was also 
reached by the International Court of Arbitration in its 
decision of 30 June 1977 on the arbitration between France 
and the United Kingdom on the determination of the conti­
nental shelf (see International Legal Materiah, 1979, p. 397, 
paragraphs 180-186). 
10 — See footnote 4 above, and the text relating thereto. The 
Government of the United Kingdom (on behalf of the 
Crown) is also responsible for the defence of the British 
islands. 
I-4612 
PEREIRA ROQUE ν LIEUTENANT GOVERNOR OF JERSEY 
clause conferring on the parties the power to 
apply the agreement to certain dependent 
territories). 11 
However, before concluding international 
agreements which apply to the British 
islands — particularly when such application 
requires the adoption of new legislation in 
areas normally within the purview of the 
islands' legislative organs — the British Gov­
ernment does not fail, in practice, to consult 
the island authorities. 12 
5. In particular, and so far as is relevant for 
the purposes of this Opinion, the central 
authorities did, for example, consult the local 
authorities after the United Kingdom's 
application for accession to the European 
Communities, which was formally submitted 
in 1967. The question whether Jersey and the 
other British islands should join and become 
part of the Communities, or remain outside 
(whilst the United Kingdom joined the 
Communities in any event) raised a series of 
problems, especially on account of the small-
ness of the islands, their proximity to the 
Continent and their close economic links 
with the United Kingdom (and, to a lesser 
extent, France). It was a question, in particu­
lar, of determining what impact the United 
Kingdom's accession would have, in the 
event that the British islands did, or did not, 
contemporaneously join: (i) upon the special 
protection enjoyed by the islands' horticul­
tural and agricultural industries, (ii) upon 
their traditional fiscal and customs privileges, 
(iii) upon measures for promoting financial 
activities on the islands, centred on strict 
banking secrecy and low rates of taxation, 
and (iv) upon local tourist businesses of a 
seasonal character, particularly in relation to 
immigration control and social security. 1 3 
6. Under Article 227(4) of the EC Treaty 
('the Treaty'), 'the provisions of this Treaty 
shall apply to the European territories for 
whose external relations a Member State is 
responsible'. 
As a result of that provision, the accession of 
the United Kingdom to the European Com­
munities would normally necessarily have 
implied the full applicability of the Treaty in 
the British islands as well, including Jersey. 14 
11 — It should be noted that the Vienna Convention on the Law 
of Treaties of 23 May 1969, drawn up by the International 
Law Commission of the United Nations, which codifies 
customary rules of public international law on the pro­
cedure for the formation of international treaties and the 
requirements for their validity and effectiveness, merely 
provides, as regards the territorial application of treaties, 
that 'unless a different intention appears from the treaty or 
is otherwise established, a treaty is binding upon each party 
in respect of its entire territory' (see Art 29; United Nations 
Treaty Series, vol. 788, p. 354). Although the expression 
'entire territory' is not further defined, it has been held in 
legal writings to include the non-metropolitan territories of 
a State (see I. Sinclair, The Vienna Convention on the Law 
of Treaties, Manchester, 1984 (2nd ed.), pp. 87-92). 
12 — See Royal Commission on the Constitution 1969-1973, vol. I 
(Report), Part IX, paragraph 1362. 
13 — In relation to Jersey, see Simmonds, The British Islands and 
the Community, cit., pp. 160-169. 
14 — See Special Committee of the States of Jersey appointed to 
consult with Her Majesty's Government in the United 
Kingdom on all matters relating to the Government's 
Application to join the European Economic Community, 
Report and Recommendations, 1967, p. 2 (cited in Sim­
monds, The British Islands and the Community, cit., 
pp. 161 and 162). 
I - 4613 
OPINION OF MR LA PERGOLA — CASE C-171/96 
7. However, by Article 26(3) of the Act con­
cerning the Conditions of Accession of the 
Kingdom of Denmark, Ireland and the 
United Kingdom of Great Britain and 
Northern Ireland to the European Commu­
nities and the Adjustments to the Treaties 
('the Act of Accession'),15 a new Article 
227(5) was added, which ambiguously states: 
'Notwithstanding the preceding paragraphs: 
(...) (c) this Treaty shall apply to the Channel 
Islands and the Isle of Man only to the 
extent necessary to ensure the implementa­
tion of the arrangements for those islands set 
out in the Treaty concerning the accession of 
new Member States to the European Econ­
omic Community and to the European 
Atomic Energy Community signed on 22 
January 1972.' 
8. The special arrangements for the British 
islands, referred to in Article 227(5) of the 
Treaty, are those laid down by Protocol N o 
3 to the Act of Accession on the Channel 
Islands and the Isle of Man ('the Protocol'). 
The Protocol is attached to the Act of Acces­
sion and forms an integral part thereof 
(Article 158 of the Act of Accession). 
As is well known, the solution to the prob­
lems referred to above (see point 5) which 
prevailed in the negotiations for the entry of 
the United Kingdom to the Communities 
was to grant generous derogations from 
application of the Treaty in full. As a result, 
the provisions of the Treaty not specifically 
mentioned in the Protocol are inapplicable to 
the British islands.16 
9. The Protocol provides that the Channel 
Islands and the Isle of Man are included in 
the Community customs union, but 
excluded from the scope of the common 
agricultural policy.17 Article 1 of the Proto­
col states that the Community rules on cus­
toms matters and quantitative restrictions are 
applicable to the British islands 'under the 
same conditions as they apply to the United 
Kingdom'.18 
In the case of agricultural products which are 
the subject of a special trade regime, Article 
1 provides that (i) levies and other import 
measures in relation to third countries laid 
down in Community rules and applicable by 
the United Kingdom and (ii) Community 
rules 'necessary to allow free movement and 
15 — OJ, English Special Edition of 27 March 1972, p. 14 
16 — See H. Smit and P. Herzog, The Law of the European Com­
munity (ed. D. Campbell) vol. 5, February 1989 (loose-leaf 
ed.), San Francisco, p. 6-216.119. I note in passing that, 
although the British Government initially declared that it 
wished to conclude an association agreement between the 
Communities and the British islands pursuant to Article 
238 of the Treaty (see The United Kingdom and the Euro­
pean Communities, July 1971, Cmnd. 4715, paragraphs 123 
and 124), the special provisions laid down in tne Act of 
Accession and tne Protocol do not constitute such a form 
of association. Associations of that kind are possible only 
between the Community and independent non-member 
countries. 
17 — See J.-L. Dewost, Dispositions générales et finales (Article 
227), in J. Megret, M. Waelbroeck, J.-V. Louis, D. Vignes 
and J.-L. Dewost, Le droit de la Communauté economique 
européenne. Commentaire du traité et des textes pris pour 
son application, vol. 15, Brussels, 1987, p. 490. 
18 — Also as regards the progressive reduction of customs duties 
and charges having equivalent effect applied to trade 
between dne British islands and the Community, including 
new Member States. 
I -4614 
PEREIRA ROQUE ν LIEUTENANT GOVERNOR OF JERSEY 
observance of normal conditions of compe­
tition in trade in these products' are to be 
applicable in the British islands. 
10. O n the sensitive issue of freedom of 
movement for persons, Article 2 of the Pro­
tocol provides that 'the rights enjoyed by 
Channel Islanders or Manxmen in the 
United Kingdom shall not be affected by the 
Act of Accession. However, such persons 
shall not benefit from Community provi­
sions relating to the free movement of per­
sons and services'. 
That provision is to be read in conjunction 
with Article 6 of the Protocol, which pro­
vides that 'in this Protocol, Channel Islander 
or Manxman shall mean any British citizen 1 9 
who holds that citizenship by virtue of the 
fact that he, a parent or grandparent was 
born, adopted, naturalised or registered in 
the island in question; but such a person 
shall not for this purpose be regarded as a 
Channel Islander or Manxman if he, a parent 
or a grandparent was born, adopted, natura­
lised or registered in the United Kingdom. 
N o r shall he be so regarded if he has at any 
time been ordinarily resident in the United 
Kingdom for five years.' 2 0 
11. Finally, by a brief provision in Article 4, 
the Protocol lays down a general principle of 
non-discrimination: 'The authorities [of the 
British islands] shall apply the same treat­
ment to all natural and legal persons of the 
Community.' 
12. In addition to the legislative context of 
the questions referred, it is necessary to con­
sider the relationship between Jersey and the 
United Kingdom as regards the particular 
aspects, which are closely interlinked, 2 1 of 
the grant of British citizenship and immigra­
tion control. 
19 — Sec the New Declaration by the Government of the United 
Kingdom of Great Britain and Northern Ireland on the 
definition of the term 'nationals' (OJ 1983 C 23, p. 1), 
which replaced, as from 1 January 1983 — the date of the 
entry into force of the British Nationality Act 1981 — the 
declaration made at the time of signature of the Treaty of 
Accession. The original text of Article 6 of the Protocol 
referred to 'any citizen of the United Kingdom and Colo­
nies': see footnote 3 above. 
In other words, by the effect of Article 2 of the Protocol, 
British citizens whose only link with the United Kingdom 
consists of a link with one of the Channel Islands arc for all 
practical purposes excluded from the definition of 'British 
citizens' for the purposes of the Treaties establishing the 
Communities. 
20 — It has been observed that, since a large number of residents 
had left the Channel Islands and moved to the United 
Kingdom during the Second World War, at the end of 
which significant migration took place in the opposite 
direction, the definition in Article 6 of the Protocol was 
such as to make the description of 'Channel Islander' inap­
plicable to over 50% of the island population at the time. 
According to the statement at the hearing by the Lieutenant 
Governor's representative, the 1981 census shows that citi­
zens of Jersey, as defined in the protocol, constituted about 
20% of the total population at tne time. 
21 — Through the determination of nationality, Member States 
are able to regulate the class of persons exempt from immi­
gration controls under domestic law (see, for example, A. 
C. Evans, 'Nationality Law and the Free Movement of Per­
sons in the EEC: With Special Reference to the British 
Nationality Act 1981', in 1981 Yearbook of European Law, 
1982, p. 173). 
I - 4615 
OPINION OF MR LA PERGOLA — CASE C-171/96 
13. Like the other British islands, Jersey 
forms part, together with the United King­
dom and the Republic of Ireland, of the 
so-called 'common travel area', within which 
there are no systematic immigration controls 
on internal journeys (by contrast with jour­
neys begun or ending outside the common 
area). 22 
14. The British Nationality Act 1981 23 pro­
vides that a person born in the United King­
dom of a father or mother who is (a) a Brit­
ish citizen or (b) settled in the United 
Kingdom acquires British citizenship. 24 
Under Section 50(1) of the British National­
ity Act 1981, the term 'United Kingdom' 
(unless the context otherwise requires) 
includes Great Britain, Northern Ireland, the 
Channel Islands and the Isle of Man. Persons 
born in Jersey of a parent or parents having 
British citizenship or settled on the island 
therefore enjoy the so-called 'common 
nationality status' and are British citizens 
who, as such, have the right of abode in the 
United Kingdom. 25 
15. Similarly, all British citizens have the 
right of abode in Jersey (as a part of the 
United Kingdom for nationality purposes) 
and — as the Royal Court notes in the ques­
tion referred — cannot be deported from the 
territory of the island. 26 
22 — See Section 1(3) of the Immigration Act 1971 (1977 c 77), 
which provides: 'Arrival in and departure from the United 
Kingdom on a local journey from or to any of the Islands 
(that is to say, the Channel Islands and Isle of Man) or the 
Republic of Ireland shall not be subject to control under 
this Act, nor shall a person require leave to enter the United 
Kingdom on so arriving ...; and in this Act the United 
Kingdom and those places ... are collectively referred to as 
"the common travel area".' 
Moreover, under Section 1(1) of Schedule 4 to the same 
Act: 'Where under the immigration laws of any of the 
Islands a person is or has been given leave to enter or 
remain in the island, or is or has been refused leave, this Act 
shall have effect in relation to him, if he is not [a British 
citizen], as if the leave were leave (of like duration) given 
under this Act to enter or remain in the United Kingdom, 
or, as the case may be, as if he had under this Act been 
refused leave to enter the United Kingdom.' 
The main provisions of the Immigration Act 1971, the Brit­
ish Nationality Act 1981 and the Immigration Act 1988 
were extended to the Jersey legal system by Order of the 
Queen in Council, the Immigration (Jersey) Order 1993 of 
30 July 1993, SI 1993/1797. See footnote 7 above. 
23 — (1981 c 61). 
24 — Ibid., Sections 1(1) and 50(2). It should be noted that (save 
for a few exceptions, which are not relevant for the pur­
poses of this Opinion) the provisions of the British Nation­
ality Act 1981 are stated to be applicable to the British 
islands by Section 53(5) of the Act. 
25 — See Section 2(l)(a) of the Immigration Act 1971, as substi­
tuted by Section 39(2) of the British Nationality Act 1981, 
cited in footnote 23 above. 
Under Section 1(1) of the Immigration Act 1971: 'All those 
who are in this Act expressed to have the right of abode in 
the United Kingdom shall be free to live in, and to come 
and go into ana from, the United Kingdom without let or 
hindrance except such as may be required under and in 
accordance with this Act to enable their right to be estab­
lished or as may be otherwise lawfully imposed on any per­
son.' 
26 — See Section 3(5) of the Immigration Act 1971 (cited in foot­
note 22), which provides: 'A person who is not a British 
citizen shall be liable to deportation from the United King­
dom — 
(a)if, having only a limited leave to enter or remain, he does 
not observe a condition attached to the leave or remains 
beyond the time limited by the leave; or 
(b)if the Secretary of State deems his deportation to be con­
ducive to the public good; or 
(c)if another person to whose family he belongs is or has 
been ordered to be deported' (emphasis added). 
I -4616 
PEREIRA ROQUE ν LIEUTENANT GOVERNOR OF JERSEY 
It can, however, be inferred from the order 
for reference that British citizens are subject 
to the Jersey criminal courts' power of bind­
ing over. The court may, as an alternative to 
imposing the punishment, ask the offender 
to agree to appear before the same court for 
sentencing, if requested to do so, at a fixed 
date or after a fixed period, usually between 
two and three years, with an obligation in 
the meantime to be of good conduct and ful­
fil the conditions imposed by the court for 
the application of that procedure. Such con­
ditions may include an obligation to leave 
Jersey territory and not return there for the 
period specified. Should the offender not 
agree, or — if he agrees — breach the order 
binding him over, provision is made for him 
to be brought back before the same court 
and punished for the original offence which 
gave rise to the adoption of the measure. 2 7 
16. As for persons without British citizen­
ship, they may enter and remain in Jersey (as 
in any other part of the United Kingdom) 
without any need for the relevant permits, 
where they are entitled to do so by virtue 
of a right of freedom of movement deriving 
from Community legislation. 2 8 
However, as already stated, 2 9 a person who 
is not a British citizen is liable to deportation 
from Jersey — in the event that a criminal 
court convicting him so recommends 3 0 — if 
the Lieutenant Governor deems such depor­
tation to be conducive to the public good. 
17. Under the special provisions of Schedule 
4 to the Immigration Act 1971, concerning 
integration of the British islands' immigra­
tion law with the law of the United King­
dom, a deportation order requiring the per­
son to whom it is addressed to leave Jersey 
and not return takes effect throughout the 
United Kingdom ('as if the order were a 
deportation order made against him under 
this Act'). 3 1 
Although the British Secretary of State may 
in individual cases direct that a deportation 
order made in Jersey is not to take effect 
27 — In addition, the order for reference shows that even British 
citizens are subject to certain statutory limits on the pur­
chase and letting of residential property, laid down by the 
Housing (Jersey) Law 1949 and the Housing (General Pro­
visions) (Jersey) Regulations 1970 in respect of any person, 
irrespective or nationality, who does not satisfy the criteria 
of connectedness with the island expressly laid down. 
In its observations, the Commission also referred to the 
existence of public control on the engagement by the 
island's employers of persons who are not Jersey workers. I 
assume that the Commission intended to refer to the rules 
laid down by Article 4 of the Loi sur les Étrangers of 1937 
(sec I. A. Macdonald, Immigration Law and Practice, Lon­
don, 1983 (3rd ed.), p. 75). The order for reference has, 
however, entirely ignored the existence of such control. 
28 — See Section 7(1) of the Immigration Act 1988, footnote 22 
above. 
29 — See footnote 25 above, and the text relating thereto. 
30 — See Sections 3(6) and 6 of the Immigration Act 1971, cited 
in footnote 22 above. 
31 — See Schedule 4, Paragraph 3(1) of the Immigration Act 
1971, cited in footnote 22 above. 
I -4617 
OPINION OF MR LA PERGOLA — CASE C-171/96 
outside the island,32 the national court has 
stated that there are no actual precedents to 
that effect. In practice, a deportation order 
made by the competent authorities of one of 
the British islands takes effect not only over 
the territory of the particular island con­
cerned but throughout the United Kingdom. 
II — Factual background to the main pro­
ceedings 
18. The facts of the case pending before the 
Royal Court may be summarised as follows. 
Mr Rui Alberto Pereira Roque, a Portuguese 
citizen, first arrived in Jersey in February 
1992 in order to join his family which was 
resident there, and was admitted without any 
restrictions, in accordance with Section 7(1) 
of the Immigration Act 1988. 33 
In October 1993, at the age of 19, Mr Pereira 
Roque, who had for some months been a 
night porter employed by a hotel, was 
charged with the theft of UKL 1 300 at his 
place of work. Having pleaded guilty, he was 
placed on probation for a year and required 
to complete 80 hours' community service. 
On that occasion, he was warned in an inter­
view with the Jersey Immigration Depart­
ment that a recommendation for deportation 
would be made if he were convicted of 
another offence. 
Having found new employment in April 
1994, again as a hotel porter, Mr Pereira 
Roque committed three thefts of personal 
property belonging to clients and another 
employee, and was sentenced in October 
1994 to 14 weeks' imprisonment. The proba­
tion order was annulled, although the court 
that convicted him did not consider it appro­
priate to recommend his deportation from 
Jersey. 
19. In December 1994, at the request of the 
Chief Inspector of Immigration, Mr Pereira 
Roque's lawyer submitted written observa­
tions on the proposal to recommend his cli­
ent's deportation. The order for reference 
shows that, although the Chief Inspector had 
also proposed in his request that an inter­
view should take place with Mr Pereira 
Roque in order to consider the appropriate­
ness of such a recommendation, the inter­
view never took place. 
On 22 December 1994, the Lieutenant Gov­
ernor ordered Mr Pereira Roque's deporta­
tion from Jersey, as being conducive to the 
32 — See Schedule 4, Paragraph 3(2) of the Immigration Act 
1971, cited in footnote 22 above. 
33 — See footnote 27 above, and the text relating thereto. The 
Community rules on freedom of movement for workers 
within the Community — including the eponymous Coun­
cil Regulation (EEC) N o 1612/68 of 15 October 1968 (OJ, 
English Special Edition 1968 (II) p. 475) as subsequently 
amended — became fully applicable to the movement of 
Portuguese workers between Portugal and the territory of 
other Member States on 1 January 1992, as provided for by 
Council Regulation (EEC) N o 2194/91 of 25 June 1991 on 
the transitional period for freedom of movement of work­
ers between Spain and Portugal, on the one hand, and the 
other Member States, on the other hand (OJ 1991 L 206, p. 
1). 
I -4618 
PEREIRA ROQUE ν LIEUTENANT GOVERNOR OF JERSEY 
public good, by a measure lacking a state­
ment of reasons and not subject to adminis­
trative appeal. 3 4 On 3 January 1995, Mr 
Pereira Roque applied to the Royal Court 
for judicial review of the lawfulness of the 
measure in question. At his request, the 
Royal Court stayed the order pending deter­
mination of the substantive application. 
20. The applicant submits that the exercise 
of the Lieutenant Governor's power of 
deportation is limited by Article 4 of the 
Protocol, which requires the Jersey authori­
ties to apply the same treatment to all natural 
and legal persons of the Community in rela­
tion to situations which, in territories where 
the Treaty is fully applicable, are governed 
by Community law. At the material time, Mr 
Pereira Roque enjoyed a right to enter and 
remain in the United Kingdom in accordance 
with the Community legal order, in his 
capacity as a worker and/or a dependant of a 
worker. 3 5 He therefore came within the 
terms of Article 4. 
Since British citizens who are not Jersey citi­
zens cannot be deported from Jersey, it fol­
lows, in the applicant's submission, that the 
same treatment must apply to a citizen of 
another Community country who — like 
himself in this case — exercises the right to 
freedom of movement for work purposes. 
21. In any event, even if a deportation order 
issued by the Jersey authorities against a per­
son in Mr Pereira Roque's position were 
accepted as lawful, such a measure would 
bind the person to whom it was addressed, 
until such time as it might be revoked, to 
remain permanently outside the territory not 
only of Jersey but of the United Kingdom as 
a whole. That being so, a measure of that 
kind could not be adopted otherwise than in 
compliance with British legislation. 
In other words, Mr Pereira Roque submits, 
even deportation orders adopted by the Jer­
sey authorities against natural persons in the 
Community holding rights which, in territo­
ries where the Treaty is fully applicable, are 
governed by Community law, must comply 
with the principles laid down by Commu­
nity legislation. The concepts of 'public 
good' and 'public policy' should therefore be 
evaluated on the basis of the procedures and 
34 — Section 15(l)(a) of the Immigration Act 1971, which pro­
vides for an appeal against a deportation order by the Sec­
retary of State (in the absence of a prior recommendation 
by the criminal court) before an adjudicator and, at second 
instance, the Immigration Appeals Tribunal, not having 
been extended to Jersey. See Macdonald, op. cit. footnote 
27, p. 74. 
35 — The right of dependants of a worker, who is a citizen of a 
Member State, to settle with him (irrespective of their own 
nationality) in the territory of another Member State in 
which he works is laid down by Article 10(1) of Council 
Regulation (EEC) N o 1612/68 of 15 October 1968 on free­
dom of movement for workers within the Community (OJ, 
English Special Edition 1968 (II), p. 475). Those persons are 
the spouse of the worker and their descendants who arc 
under the age of 21 years or arc dependants, and dependent 
relatives in the ascending line of the worker and his spouse. 
I - 4619 
OPINION OF MR LA PERGOLA — CASE C-171/96 
substantive criteria laid down by Article 
48(3) of the Treaty 3 6 and Directive 64/221. 3 7 
Therefore, Mr Pereira Roque argues, the 
measure adopted against him was unlawful; 
deportation from Jersey of a person con­
victed of minor offences — as in this case — 
is not, he submits, conducive to the public 
good and is in any event disproportionate to 
the offence committed, in that it involves, 
inter alia, the separation of the person con­
cerned from his family. The unlawfulness of 
the measure is, he submits, all the more evi­
dent in that the Jersey legal system does not 
provide for an appeal procedure involving 
review of the substance of the measure. 
Mr Pereira Roque also criticises as illogical 
the arguments of the Lieutenant Governor, 
who assimilates Jersey to the United King­
dom (in support of the view that the prohi­
bition on deporting British citizens from the 
island is not discriminatory) and, at the same 
time, maintains that the concept of public 
policy may be understood differently under 
the two legal systems, even though deporta­
tion — which is a measure intended to oper­
ate throughout the common travel area — 
requires in view of its effects that the reasons 
justifying it should be uniformly defined. 
22. In response, the Lieutenant Governor 
submits that, under public international law, 
States may deport foreigners but not their 
own citizens. Exercise of the power of 
deportation is always 'discriminatory' by 
nature, but without thereby assuming any 
relevance for the purposes of Article 4 of the 
Protocol. Moreover, Article 48(3) of the 
Treaty and Directive 64/221 allow the depor­
tation of citizens of other Member States, 
notwithstanding the general prohibition of 
discrimination on grounds of nationality laid 
down by Article 6 of the Treaty. 
36 — That provision expressly safeguards such limitations on the 
fundamental rights of freedom of movement for workers 
guaranteed by the Treaty — including the right 'to stay in a 
Member State for the purpose of employment in accord­
ance with the provisions governing the employment of 
nationals of that State laid down by law, regulation or 
administrative action' — as are justified on grounds of pub­
lic policy, public security or public health. 
37 — Council Directive 64/221/EEC of 25 February 1964 on the 
co-ordination of special measures concerning the movement 
and residence of foreign nationals which are justified on 
grounds of public policy, public security or public health 
(OJ, English Special Edition 1963-1964, p. 117). 
Under Article 3 of the directive, which has been recognised 
by the Court as having direct effect in the legal systems of 
Member States (see Case 41/74 Van Duyn ν Home Office 
[1974] ECR 1337, at paragraphs 6 and 7), measures remov­
ing aliens from their territory adopted by Member States on 
grounds of public policy or public security must be based 
exclusively on the personal conduct of the individual con­
cerned. They are not automatically justified by the mere 
existence of criminal convictions, as a possible deterrent, by 
way of general prevention, to other aliens present in the ter­
ritory (Case 67/74 Bonsignore ν Stadt Köln [1975] ECR 
297), save where the circumstances which gave rise to the 
previous convictions demonstrate the existence of personal 
conduct which, by indicating a propensity to commit 
another breach of the peace and public security, constitutes 
a current threat to public order (Case 30/77 R v Bouchereau 
[1977] ECR 1999). 
Save where reasons inherent to State security dictate other­
wise, the grounds on which a given restrictive measure is 
based must be brought to the knowledge of the person con­
cerned with sufficient detail and precision to enable him to 
defend himself effectively (Joined Cases 115/81 and 116/81 
Adotti v Belgian State and City of Liège; Comuaille v Bel­
gian State [1982] ECR 1665); the person concerned must 
abo be given the opportunity to try the remedies allowed 
to citizens against administrative measures (Articles 6 and 8 
of the directive). 
Finally, Article 9 of the directive provides — where there is 
no right of appeal to a court of law, or where such appeal 
may be brought only in respect of the legal validity of the 
contested measure, or where the appeal cannot have sus­
pensory effect — that a Community citizen threatened with 
deportation is entitled to have his case examined, before the 
measure is implemented, by an independent advisory auth­
ority of the host country before which full exercise of the 
rights of the defence is guaranteed (Case C-175/94 R v Sec­
retary of State for the Home Department, ex parte Gal-
lagher [1995] ECR 1-4253). 
I - 4620 
PEREIRA ROQUE ν LIEUTENANT GOVERNOR OF JERSEY 
Furthermore, acceptance of Mr Pereira 
Roque's arguments would lead to the bizarre 
result of giving the citizens of all the Mem­
ber States the right to enter and remain on 
Jersey territory, without being subject either 
to immigration control or to the possibility 
of deportation, even for purposes other than 
those contemplated by Community law. 
That, in the Lieutenant Governor's submis­
sion, would amount to contradicting the leg­
islative principle that the Treaty provisions 
on free movement of persons are not appli­
cable on the island. 
In addition, the Lieutenant Governor sub­
mits, the non-discrimination clause laid 
down in the Protocol cannot be read as 
requiring the Jersey authorities to grant 
equal treatment to British citizens and other 
Community citizens, either by introducing 
restrictions on the right of the former to 
enter and remain on the island, or, vice versa, 
by removing the current restrictions in that 
respect imposed on the latter. 
In his view, therefore, Article 4 of the Proto­
col does not limit the power of the island's 
competent authorities to deport Community 
citizens on grounds of public policy or for 
other reasons. 
23. In the alternative, the Lieutenant Gover­
nor maintains that there are other reasons 
why the argument that he is obliged to exer­
cise his own power of deportation in the 
same manner as the United Kingdom 
authorities is untenable. It would, in his 
submission, be a way of surreptitiously mak­
ing the Treaty provisions on free movement 
of persons applicable on the island, and also 
infringe the principle, established by the 
Court of Justice, that Member States remain 
free to determine their own public policy 
needs in the light of national requirements. 
Moreover, the justification for the deporta­
tion order is to be assessed by determining 
whether or not the presence of the person 
concerned on the island constitutes a genuine 
and sufficiently serious threat to society; it is 
therefore quite logical, he submits, for the 
competent national authority to be required 
to interpret the concept of public policy 
from time to time with reference to the 
nature and requirements of the society in 
whose territory the offender finds himself. 
III — Whether the Royal Court may refer 
questions to the Court of Justice pursuant 
to Article 177 of the Treaty 
24. In formulating my solution to the ques­
tions referred, I shall take as the starting 
point the judgment of the Court of Justice in 
Case C-355/89 Department of Employment 
ν Barr and Montrose Holdings, 3 8 which has 
been relied upon in support of the respective 
38 — [1991] ECR I-3479. 
I - 4621 
OPINION OF MR LA PERGOLA — CASE C-171/96 
and opposing positions taken in these pro­
ceedings, both by the parties to the main 
action and by the British and French Gov­
ernments and the Commission. 
That case is relevant, first of all, in verifying 
whether the Court of Justice has jurisdiction 
to provide the interpretations requested by 
way of preliminary ruling, given that the 
Royal Court — as stated above (see footnote 
7) — forms part of the legal system of the 
island and not of the British legal system. 
It is sufficient here to repeat what the Court 
said in Barr and Montrose Holdings concern­
ing a request for a ruling on interpretation 
under Article 177 of the Treaty, submitted by 
a court of the Isle of Man: 'according to 
Article 1(3) of the Treaty of Accession [of 
the Kingdom of Denmark, Ireland and the 
United Kingdom of Great Britain and 
Northern Ireland to the European Economic 
Community and to the European Atomic 
Energy Community], the provisions con­
cerning the powers and jurisdiction of the 
institutions of the Communities are to apply 
in respect of Protocol N o 3 which, according 
to Article 158 of the Act of Accession, forms 
an integral part thereof. Accordingly, the 
jurisdiction in preliminary ruling proceed­
ings conferred on the Court by Article 177 
of the Treaty extends to Protocol N o 3. 
Furthermore, it would be impossible to 
ensure the uniform application of Protocol 
N o 3 in the Isle of Man if its courts and tri­
bunals were unable to refer questions to the 
Court concerning the interpretation of that 
protocol, the interpretation and validity of 
the Community legislation to which that 
protocol refers, and the interpretation and 
validity of measures adopted by the Com­
munity institutions on the basis of Protocol 
N o 3. 
It follows that in order to ensure the uni­
form application of that protocol, the 
Deputy High Bailiff's Court must be 
regarded as a court or tribunal empowered 
to refer questions on those matters to the 
Court of Justice pursuant to Article 177 of 
the Treaty.' 39 That conclusion is fully appli­
cable, mutatis mutandis, to the present case. 
IV — Question 1 
25. That is not all. The aspects of the judg­
ment on the merits of the case in Barr and 
Montrose Holdings concerning interpretation 
of the obligation to apply the same treatment 
laid down by Article 4 of the Protocol are 
particularly relevant for the purposes of this 
Opinion. 
39 — Paragraphs 8 to 10 of the judgment 
I - 4622 
PEREIRA ROQUE ν LIEUTENANT GOVERNOR OF JERSEY 
In that case, Mr Barr, a British citizen, and 
Montrose Holdings Limited, which 
employed him as a company lawyer, were 
charged with infringement of the Isle of Man 
Control of Employment Act, which 
restricted access to employment on the 
island to 'Isle of Man workers' and workers 
holding a special permit issued by the 
Department of Health and Social Security. 
Appearing before the Deputy High Bailiff's 
Court, Mr Barr and Montrose Holdings 
pleaded that the legislation in question was 
unlawful for breach of Article 4 of the Pro­
tocol; the contested provisions exempted the 
police service and other activities in the ser­
vice of the Crown on behalf of the United 
Kingdom Government from the permit 
requirement, thereby, in their submission, 
reserving more favourable treatment for citi­
zens of the United Kingdom and the Repub­
lic of Ireland. 
26. In reply to the questions from the Isle of 
Man court, seeking an interpretation of the 
Protocol, the Court of Justice began by 
accepting the argument of the British Gov­
ernment, holding that 'the rule laid down in 
Article 4 of Protocol N o 3 cannot be inter­
preted in such a way as to be used as an indi­
rect means of applying on the territory of 
the Isle of Man provisions of Community 
law which are not applicable there by virtue 
of Article 227(5)(c) of the EEC Treaty and 
Article 1 of Protocol N o 3, such as the rules 
on the free movement of workers.' 4 0 
27. O n the other hand, the Court rejected 
the interpretation of Article 4 — likewise 
advocated by the British Government — to 
the effect that the principle of equal treat­
ment laid down by that article was limited 
exclusively to the free movement of goods, 
dealt with in Article 1 of the Protocol. 
The Court stated that, by its wording, 
Article 4 applied to natural and legal persons, 
and 'must therefore be regarded as an inde­
pendent provision so far as its scope is con­
cerned. It must be interpreted as precluding 
any discrimination between natural and legal 
persons from the Member States in relation 
to situations which, in territories where the 
Treaty is fully applicable, are governed by 
Community law.' 4 1 Since access to employ­
ment is one of those situations, the Court 
concluded that Article 4 applies thereto, not­
withstanding the inapplicability to the Isle of 
Man of the Community rules on free move­
ment of workers. 4 2 
40 — Paragraph 16 of the judgment. 
41 — Paragraph 17 of the judgment. 
42 — Paragraph 18 of the judgment Having established that, the 
Court enquired whether any discrimination between Com­
munity workers on grounds of citizenship as regards only 
those types of employment constituting derogations — of 
which Mr Barr's employment as a company lawyer was not 
one — necessarily had the effect of rendering the entire Isle 
of Man system of controlling employment incompatible 
with Article 4 of the Protocol. The Court replied to that 
q uestion in the negative; the requirement of a work permit 
or all citizens of Member States, when applied by the 
island authorities in a non-discriminatory manner, did not 
in the majority of cases constitute an infringement of the 
obligation under Article 4 to ensure equal treatment, and 
had to be held compatible with Community law. 
I - 4623 
OPINION OF MR LA PERGOLA — CASE C-171/96 
28. Those principles are to be applied in 
these proceedings. The problem before the 
Court, it should be remembered, is whether 
a deportation order of the kind adopted by 
the Lieutenant Governor of Jersey against 
Mr Pereira Roque is compatible with the 
prohibition on discrimination laid down by 
Article 4 of the Protocol. 
29. Let me say at once that Article 4 must be 
considered applicable here, notwithstanding 
the inapplicability to the island of Jersey, 
referred to above, of the Community rules 
on the free movement of workers. In the cir­
cumstances of this case (see points 18 and 19 
above), such a provision undeniably has a 
significant impact on the practical opportu­
nities for a Community citizen such as Mr 
Pereira Roque to take up employment on the 
island 43 (or alternatively to reside there as a 
dependant, in the wake of a parent who is a 
worker). 
The British Government's argument, there­
fore, to the effect that the judgment in Barr 
and Montrose Holdings must be interpreted 
as entirely excluding immigration control 
from the scope of Article 4 of the Protocol, 
seems to me to be without merit. 
30. As for the allegedly discriminatory char­
acter, in favour of British citizens, of the 
deportation measures from Jersey which the 
Lieutenant Governor has the power to adopt 
under Section 3(5)(b) of the Immigration Act 
1971, it seems to me that some remarks are 
called for as to the power which States enjoy 
in this area under international law. 
31. The determination of nationality essen­
tially constitutes the means for defining the 
human dimension of the State, and in inter­
national law it is traditionally regarded as the 
43 — See Plender, op. cit footnote 1, pp. 157 and 158. In that 
respect, I note that, although the Commission, supported 
by the French Government, has cast at least one doubt on 
Mr Pereira Roque's actual status as a 'worker' at the mate­
rial time, that was taken as read by the national court. It 
should be remembered that the term 'worker', which is 
used in the Treaty but has never been defined, has been 
broadly interpreted by the Court, so that it appears to be 
sufficient for the person concerned to pursue for a certain 
period of time, in return for remuneration, actual and genu­
ine employment in the interests of another person and 
under that person's direction (see, inter alia, Case 53/81 
Levin v Staatssecretaris van Justitie [1982] ECR 1035 and 
Case 66/85 Lawrie-Blum v Land Baden-Württemberg 
[1986] ECR 2121). On the basis of that principle, the Court 
has held that the persons who may legitimately avail them­
selves of Community rules on free movement include part-
time workers (Case 139/85 Kempf v Staatssecretaris van 
Justitie [1986] ECR 1741), temporary, seasonal and appren­
tice workers (Case C-3/90 Bernini v Minister van Onder­
wijs en Wetenschappen [1992] ECR 1-1071) and students 
undergoing periods of practical training as part of a training 
programme (Case C-27/91 Union de Recouvrement des 
Cotisations de Sécurité Sociale et d'Allocations Familiales de 
la Savoie v Hostellerie Le Manoir [1991] ECR I-5531). The 
right to enter the territory of another Member State and 
reside there for a reasonable period of time is, however, also 
enjoyed by Community citizens who, whilst not having a 
job, are in search of employment (see, inter alia, Case 
C-292/89 R v Immigration Appeal Tribunal, ex parte Anto­
nissen [1991] ECR I-745). 
I - 4624 
PEREIRA ROQUE ν LIEUTENANT GOVERNOR OF JERSEY 
sole prerogative of the State, 4 4 even if poten­
tially subject to certain restrictions deriving 
from customary law or treaties. 4 5 
32. In Community law as well, this Court 
has always recognised the exclusive jurisdic­
tion of the Member States to determine uni­
laterally the conditions for the acquisition 
and loss of their respective nationalities, pro­
vided that — presumably on account of its 
indirect effects on the determination of the 
scope of the fundamental freedoms guaran­
teed by the Treaty ratione personae46 — 
such jurisdiction is exercised in compliance 
with Community law. 4 7 
The Treaty on European Union itself, whilst 
establishing citizenship of the Union, 4 8 has 
not in any way encroached on the exclusive 
jurisdiction of the Member States to deter­
mine nationality, as is clear from the relevant 
provisions of the Treaty and the Declaration 
on Nationality of a Member State annexed to 
the Final Act. 4 9 
33. Finally, the scope and content of the 
nationality of a Member State may well dif­
fer for the purposes of national and of Com­
munity law. That is the case here, in that citi­
zens of the British islands, whilst being 
British citizens to all intents and purposes 
under domestic law and coming within the 
definition of 'British citizens' for the 
44 — See the judgment of the International Court of Justice of 6 
April 1955 Liechtenstein ν Guatemala ('Nottebohm') (Sec­
ond Phase), ICJ Reports, p. 4, especially p. 23. In that judg­
ment, the International Court of Justice gave its oft-cited 
definition of 'nationality' as 'a legal bond having as its basis 
a social fact of attachment, a genuine connection of exist­
ence, interests and sentiments, together with the existence 
of reciprocal rights and duties. It may be said to constitute 
the judicial expression of the fact that the individual upon 
whom it is conferred, either directly by law or as a result of 
an act of the authorities, is in fact more closely connected 
with the population of the State conferring nationality than 
with any other State.' 
See also the opinion of the Permanent Court of Interna­
tional Justice of 7 February 1923 in the case of Nationality 
Decrees in Tunis and Morocco, P. C. I. T., Ser. B, N o 4, p. 24. 
It is useful to recall, on the semantic level, that, whilst the 
terms 'nationality' and 'citizenship' are largely regarded as 
interchangeable in common parlance (see C. Parry, Nation­
ality and Citizenship Laws of the Commonwealth and the 
Republic of Ireland, London, 1957, pp. 3-8), they are used 
to emphasise two different aspects of the way in which a 
person belongs to the State, namely, the collection of rights 
which arc relevant in the context of international law, such 
as the right to diplomatic protection and to the issuing of a 
passport, and rights which are relevant in the domestic legal 
system, such the right of residence and the right to vote; see 
A. Karinen, Expulsion in Europe. The Member States' Sov­
ereignty and the Individual's Rights, Institutet för 
Europeisk rätt vid Stockholms Universitet, N o 34 (1996), p. 
40. 
45 — See Article 1 of the 1930 Hague Convention on Certain 
Questions Relating to the Conflict of Nationality Laws, 
reproduced in A. J. I. L., vol. 24 (1930). p. 192. Such restric­
tions determined by international law appear, however, to 
be rare and to have no legally binding force; according to 
Advocate General Trabucchi in Case 21/74 Airola v Com­
mission [1975] ECR 221, especially p. 233, they appear to 
include fundamental human rights. Sec S. O'Leary, 'Nation­
ality Law and Community Citizenship: A Tale of Two 
Uneasy Bedfellows', in 1992 Yearbook of European Law, 
1993, p. 353, especially p. 356. 
46 — See O'Leary, op. cit footnote 45, pp. 378 and 379. 
47 — See Case C-369/90 Micheletti v Delegación del Gobierno en 
Cantabria [1992] ECR I-4239, paragraph 10. 
48 — See Articles 8 to 8e of the Treaty. Citizenship of the Union 
is reserved for 'every person holding the nationality of a 
Member Sute' (Article 8). 
49 — That declaration states: 'The Conference declares that, 
wherever in the Treaty establishing the European Commu­
nity 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 consid­
ered their nationals for Community purposes by way of a 
declaration lodged with the Presidency and may amend any 
such declaration when necessary.' Under the general rule of 
interpretation laid down by the Vienna Convention on the 
Law of Treaties of 23 May 1969, cited in footnote 11, 'the 
context [in which the terms of the treaty are to be given 
their ordinary meaning], for the purpose of the interpreta­
tion of a treaty, shall comprise, in addition to the text, 
including its preamble and annexes: (a) any agreement relat­
ing to the treaty which was made between all the parties in 
connection with the conclusion of the treaty' (Article 
31(2)). 
I - 4625 
OPINION OF MR LA PERGOLA — CASE C-171/96 
purposes of the Treaties establishing the 
Communities which is set out in the United 
Kingdom Government's 1983 Declaration, 
do not enjoy the benefit of the Treaty provi­
sions on the free movement of persons. 50 
34. The entry and deportation of aliens are 
also matters that are traditionally regarded as 
the sole prerogative of the State, since they 
concern powers of self-protection that are 
inherent in the essential public interests and 
the very sovereignty of each State. 
35. That principle remains intact, even 
though it is recognised that the discretionary 
power to deport aliens whose presence in the 
territory is considered undesirable is limited 
by the bilateral relationship established, with 
concomitant reciprocal rights and obliga­
tions, between the State granting entry to an 
alien and the State of which the alien is a 
national. Under that relationship, it is the 
latter State which bears the obligation of 
allowing entry to its own citizens who have 
been lawfully deported from another State, 
whilst the host State, for its part, is obliged 
to give fair and reasonable treatment to 
aliens on its territory. 
That being so, a State's discretion in the mat­
ter of deportation is limited by the function 
and purpose of the power in question, which 
must thus be exercised in good faith (that is, 
not for ulterior motives, such as genocide, 
expropriation or abandonment of the indi­
vidual to persecution in his State of origin) 
and on reasonable grounds (such as infringe­
ment of the rules on immigration control of 
the host State, involvement in criminal activi­
ties or other considerations of policy or pub­
lic safety). The reasons underlying deporta­
tion are, moreover, to be carefully weighed 
by the State adopting the measure in order to 
take account of the countervailing interests 
of the alien (including his individual rights, 
the right not to be separated from his family, 
property and other possible ties with the 
State of residence, and his legitimate expecta­
tions). 51 
36. That explains, inter alia, how the exer­
cise of the power of deportation (or the 
power to refuse entry or residence) can only 
affect aliens. 
That has also been acknowledged in Com­
munity law, as the expression of a principle 
of public international law, which the Treaty 
has left in force in relations between Member 
States. The Court has held that deportation 
measures adopted by Member States against 
aliens from other Community countries — 
in accordance with the conditions laid down 
50 — See footnote 19 above. 
51 — See G. S. Goodwin-Gill, The Limits of the Power of 
Expulsion in Public International Law', in The British Year 
Book of International Law 1974-1975, Oxford, 1977, p. 55, 
especially pp. 56-122; I. Brownlie, Principles of Public Inter­
national Law, Oxford, 1990 (4th ed.), p. 520. 
I - 4626 
PEREIRA ROQUE ν LIEUTENANT GOVERNOR OF JERSEY 
by Article 48(3) of the Treaty and Directive 
64/221, and in any event on grounds other 
than failure to complete formalities concern­
ing the control of aliens — do not give rise 
to discriminatory restrictions on the free 
movement of persons. 5 2 
37. I consider in the light of the above — in 
answer to the first question referred — that 
the obligation to accord the same treatment 
to Community persons, imposed on the Jer­
sey authorities by Article 4 of the Protocol, 
is not in this case infringed by the mere fact 
that citizens of other Community States, 
unlike British citizens, are subject to immi­
gration controls on the island and to the 
adoption of coercive measures removing 
them from its territory. 
38. Since the Protocol is an integral part of 
the Treaty (see point 8 above), the obligation 
to 'apply the same treatment to all natural 
and legal persons of the Community' is as a 
matter of logic to be interpreted in the light 
of Community law. 
In that regard, it is necessary to recall the 
principles laid down by the Court of Justice 
in application of Article 6 (formerly Article 
7) of the Treaty concerning the general clause 
prohibiting discrimination on grounds of 
nationality, of which Article 4 cited above 
may reasonably be regarded as the corre­
sponding provision in the Protocol. 5 3 
According to the Court's case-law, Member 
States must in principle accord aliens from 
other Community countries the treatment 
reserved for their own citizens, which does 
not prevent different treatment of the two 
categories from being justified, and thus free 
of discriminatory effects contrary to Com­
munity law, 5 4 in situations which are legally 
distinguishable in accordance with non-
arbitrary and reasonable criteria. 
39. In the specific area of equal treatment of 
workers, the general principle laid down by 
Article 6 is applied in practice by Articles 48 
to 51 of the Treaty. Here the general prohibi­
tion of discrimination on grounds of nation­
ality entails that citizens of other Member 
States may not be treated differently from 
those of the host State as regards the condi­
tions of access to work and employment, 
especially in relation to remuneration, 
52 — Sec the judgment in Van Duyn ν Home Office, cited in 
footnote 37 above, at paragraphs 22 and 23; Case 48/75 
Roy er [1976] ECR 497, at paragraph 41; judgment in Adotti 
and Comuaille, cited in footnote 37 above, atparagraph 7; 
Case C-370/90 R v Immigration Appeal Tribunal and 
Singh, ex parte Secretary of State for the Home Department 
[1992] ECR I-4265, at paragraph 22; Joined Cases C-65/95 
and C-111/95 Shingara and Radiom [1997] ECR I-3343, at 
paragraph 28. 
53 — Sec Plender, op. cit. footnote 1, p. 156. 
54 — See, inter alia, Case 810/79 Überschär v Bundesver­
sicherungsanstalt für Angestellte [1980] ECR 2747; Case 
293/83 Gravier v Väle de Liège [1985] ECR 593; Case 
308/86 Lambert [1988] ECR 4369; Case 42/87 Commission 
v Belgium [1988] ECR 5445; Case C-357/89 Raulin v Min­
ister van Onderwijs en Wetenschappen [1992] ECR I-1027; 
Joined Cases C-63/90 and C-67/90 Portugal and Spain v 
Council [1992] ECR I-5073. 
I - 4627 
OPINION OF MR LA PERGOLA — CASE C-171/96 
dismissal, re-employment and social protec­
tion. 5 5 
The Court of Justice has, however, held that 
there is no unlawful discrimination where a 
Member State applies its own legislation on 
immigration control, on the basis of objec­
tive criteria, to workers from other Member 
States, provided such legislation does not 
entail undue restrictions on such workers' 
right of entry and residence. 5 6 
40. Leaving aside the question whether the 
Bailiwick of Jersey is a part of the United 
Kingdom from the point of view of interna­
tional law and all purposes relevant thereto 
(see point 4 above), there is no doubt as 
regards nationality that Jersey citizens are 
British citizens and enjoy common national­
ity status. 5 7 Such decisions on matters of 
nationality are clearly the sole prerogative of 
the United Kingdom. 5 8 
Moreover, since all British citizens have the 
right of abode in any part of the United 
Kingdom, they are not liable to administra­
tive deportation measures from its terri­
tory. 5 9 The entry and deportation of aliens 
are also matters which are undoubtedly the 
sole prerogative of the United Kingdom. 6 0 
Contrary to Mr Pereira Roque's contention, 
therefore, the deportation of British citizens 
by the Jersey authorities — that is to say, the 
deportation of citizens of the United King­
dom from the territory of the United King­
dom — is precluded by a principle of public 
international law, and is not the result of a 
legislative decision allegedly within the dis­
cretion of the State. 
41. In those circumstances, I do not see how, 
in view of the clear distinction between the 
position of British citizens and that of aliens, 
even if they are Community nationals, the 
fact that the Jersey authorities retain the 
power to deport citizens of a Community 
Member State or to refuse them entry or 
residence on the island can be regarded as 
discriminatory in its effects. 
42. Above all — as the Lieutenant Gover­
nor, the British Government and the Com-
55 — See, inter alia, Case 44/72 Marsman v Rosskamp [1972] 
ECR 1243 and Case 237/83 Prodest ν Caisse Primaire 
d'Assurance Maladie de Paris [1984] ECR 3153. Apart from 
discrimination overtly based on nationality, the principle of 
equality of treatment also prohibits any form of covert dis­
crimination which arrives at the same result, even though 
based on other distinguishing criteria: see, inter alia. Case 
152/73 Sotgiu ν Deutsche Bundespost [1974] ECR 153; Case 
61/77 Commission ν Ireland [1978] ECR 417; Case 
C-279/93 Finanzamt Köln-Altstadt ν Schumacker [1995] 
ECR I-225; Case C-237/94 O'Flynn ν Adjudication Officer 
[1996] ECR I-2617. 
56 — See the judgments in Case 118/75 Watson and Belmann 
[1976] ECR 1185 and in Case 8/77 Sagulo, Brenca and 
Bakhouche [1977] ECR 1495, paragraphs 4 and 5 (concern­
ing the obligation on Community nationals to notify their 
presence to the police authorities of the host Member State, 
in the absence of disproportionate penalties for breach of 
that obligation). 
57 — See footnote 24 above, and the text relating thereto. 
58 — See footnote 43 above, and the text relating thereto. 
59 — See footnote 25 above, and the text relating thereto. 
60 — See points 34 to 36 above. 
I - 4628 
PEREIRA ROQUE ν LIEUTENANT GOVERNOR OF JERSEY 
mission point out — the opposite solution 
would lead to manifestly illogical results. 
Since the Jersey authorities' power of depor­
tation is not subject to the substantive and 
procedural limitations laid down by Article 
48(3) of the Treaty and Directive 64/221 (see 
point 44 below), Community citizens would 
enjoy on the island (in whose territory the 
rules on free movement do not apply) an 
absolute and unlimited right of residence, far 
broader than that granted to them in other 
Member States (see point 21 above). 
43. I therefore propose that — subject to the 
qualifications which follow (see points 46 to 
52 below) — the answer to the first question 
referred by the Royal Court should be that 
Article 4 of the Protocol does not entail a 
prohibition on deporting citizens of a Mem­
ber State other than the United Kingdom 
from Jersey territory. The exemption from 
immigration controls on Jersey territory and 
the prohibition of deportation apply only to 
British citizens united to Jersey citizens by 
the bond of a common citizenship. 
V — Question 2 
44. As regards the two remaining questions, 
there cannot in principle be any question of 
the substantive and procedural limitations 
laid down by Article 48(3) of the Treaty and 
Directive 64/221 6 1 applying to administra­
tive action by the Jersey authorities. 
That conclusion seems to me to follow from 
the Court's ruling in Barr and Montrose 
Holdings, cited above. 6 2 The obligation to 
apply the same treatment under Article 4 of 
the Protocol cannot be interpreted in such a 
way as to deduce from it an indirect means 
of applying on the territory of the British 
islands Community rules which, pursuant to 
Article 227(5)(c) of the EEC Treaty and 
Article 1 of Protocol N o 3, cannot be 
applied there, such as the rules on the free 
movement of workers. 
45. Having said that, I now turn to the 
essential qualifications which I wish to add. 
46. Let us consider for a moment the precise 
content (apart from the application of the 
substantive and procedural limits laid down 
by Article 48(3) of the Treaty and Directive 
64/221, which, as has been mentioned, are 
not relevant in the main proceedings) of the 
principle of equal treatment for national and 
foreign workers, with which Member States 
61 — See footnotes 35 and 36 above, and the text relating thereto. 
62 — See footnote 37 above, and the text relating thereto. 
I - 4629 
OPINION OF MR LA PERGOLA — CASE C-I71/96 
are in principle required to comply — as 
regards the right of entry and residence —, 
particularly in view of the recent recognition 
of citizenship of the European Union, which 
is acquired and lost together with national 
citizenship. 
Community law is developing ever more 
markedly towards assimilation of the rights 
of other Community nationals to those of 
citizens of the host Member State. Not only 
has the Treaty on European Union created 
citizenship of the Union, 63 but the Court of 
Justice has for some time — to give just one 
example 64 — taken the view that a similar 
requirement of assimilation existed between 
those two categories of persons as regards 
the right of access to civil and criminal jus­
tice. 65 
47. In the area of immigration control, it is 
quite clear that, for a Community national 
who has lawfully become established and 
integrated in the territory of another Mem­
ber State — and whose situation is thus com­
parable in a number of respects with that of 
a citizen of that State —, a deportation meas­
ure has considerably more serious and 'puni­
tive' consequences than, say, an initial refusal 
of entry, since deportation necessarily entails 
the abandonment of work or school, family, 
friends and home. 
By contrast, citizens of a Member State con­
victed of serious offences, not being liable to 
deportation, are required to undergo penal­
ties which may be severe, but always within 
their own State. Aside from the authority of 
the public international law principle cited 
above, however, it is legitimate to ask why 
similar treatment could not and should not 
be offered to Community nationals who 
have lawfully emigrated to and setded in the 
territory of the State in question. 66 
48. I therefore consider that, whilst under 
Community law Member States still retain 
the power to deport other Community 
63 — See footnote 48 above, and the text relating thereto. It 
should be noted in particular that, under Article 8a of the 
Treaty, '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'. 
Recognition of the fundamental freedom of movement and 
residence as an individual right of the Union's citizens 
raises the question of the dissociation of its exercise from 
purely economic considerations, on a new political and 
juridical basis, potentially capable of leading to the aboli­
tion not only of the conditions laid down by secondary leg­
islation but also of the reservations contained in Articles 48, 
55 and 56 of the Treaty: See A. Pliakos, 'Citoyenneté', in C. 
Gavalda and R. Kovar (ed.) Répertoire de droit communau­
taire Dalloz, Paris, 1992-(loose-leaf ed., June 1995), vol. 1, 
paragraph 35. 
64 — See also my recent Opinion of 1 July 1997 in Case C-85/96 
María Martinez Sala v Freistaat Bayern [1998] ECR I-2691, 
in which I interpreted Articles 8 and 8a of the Treaty as 
meaning that a Community citizen however authorised or 
admitted to reside or stay in the territory of a Member State 
is entitled to the education allowance provided for by 
national legislation, irrespective of whether that person 
holds a valid residence permit, on the same conditions as 
citizens of the host State. 
65 — See, inter alia, Case 137/84 Mutsch [1985] ECR 2681; Case 
186/87 Cowan v Trésor Public [1989] ECR 195; Case 
C-43/95 Data Delecta and Forsberg v MSL Dynamics 
[1996] ECR I-4661. 
66 — Even in international law, moreover, there is debate as to 
the extent of a State's discretion to deport from its territory 
persons who have been established there for so long that 
they may be considered to have effectively acquired its 
nationality: See Brownlie, op. cit. footnote 51, p. 520. 
I - 4630 
PEREIRA ROQUE ν LIEUTENANT GOVERNOR OF JERSEY 
nationals, the duty to apply the same treat­
ment requires — apart from the substantive 
and procedural limitations laid down by 
Article 48(3) of the Treaty and Directive 
64/221 — that recourse to such measures 
against that category of immigrants should 
increasingly be the exception, and should be 
limited to cases where the continued pres­
ence of the alien in the State's territory con­
stitutes a genuine and sufficiently serious 
threat to its fundamental interests. 6 7 
49. In my view, similar considerations apply, 
mutatis mutandis, as regards the limits 
within which the Jersey authorities may treat 
citizens of other Member States of the Com­
munity differently from British citizens in 
the matter of immigration control. 
In particular, I cannot endorse the observa­
tions of the Commission to the effect that, 
by shifting the equal treatment analysis from 
the possibility of adopting the measure to the 
severity of the measure in relation to the facts 
relied upon to justify it, the end result would 
be to apply the principle of proportionality, 
a distinct and separate Community rule not 
contemplated by the Protocol, in breach of 
the principle laid down by the Court in Barr 
and Montrose Holdings. 
In reality, the very opposite seems to me to 
be true; on the assumption that the Jersey 
authorities have the power to deport non-
British Community citizens, the obligation 
to apply the same system to all natural per­
sons of the Community, regardless of their 
nationality, cannot be said to be satisfied save 
in so far as the deportation measures adopted 
by the island authorities at their discretion 
satisfy a fundamental requirement of propor­
tionality. 6 8 
In other words, in this field it is in fact 
proportionality which ensures equality of 
67 — See C. Vincenzi, 'Deportation in Disarray: The Case of EC 
Nationals', Crim. L. R., 1994, p. 163, especially pp. 174 and 
175; Karinen, op. cit. footnote 44, p. 58; Goodwin-Gill, op. 
cit. footnote 51, p. 153. 
68 — The principle at issue in this case that compliance with the 
prohibition on discrimination is achieved by ensuring that 
any limitations imposed on the individual's right to equality 
of treatment are appropriate and necessary has been applied 
many times and in various circumstances in the case-law of 
the Court: See the judgments in Watson and Belmann and 
Sagulo, Brenca and Bakhouche, cited in footnote 56 above, 
paragraphs 20-22 (concerning the proportionality of penal-
ties prescribed by Italian public security law for failure to 
comply with administrative formalities in relation to the 
entry and residence of foreigners); judgments in Case 
114/76 Bela-Mühle ν Grows-Farm [1977] ECR 1211, para­
graph 7, Case 116/76 Granaria ν Hoofdproduktschap voor 
Akkerbouwprodukten [1977] ECR 1247, paragraphs 17-25, 
and Joined Cases 119/76 and 120/76 Ölmühle Hamburg ν 
Hauptzollamt Hamburg-Waltershof, Becher ν Hauptzol­
lamt Bremen-Nord [1977] ECR 1269, paragraph 7 (in 
which the Court held that a Community system for dispos­
ing of stocks of skimmed-milk powder held by the inter­
vention agencies, which linked the grant of aid to animal 
rearers to the obligatory purchase of such milk at a price 
severely disproportionate to that of products of comparable 
value as foodstuffs, constituted a discriminatory distribu­
tion of the economic burdens arising from the system 
between the various agricultural sectors, to the benefit of 
milk producers and the detriment of animal rearers, in 
breach of the principle of non-discrimination between 
Community producers and consumers laid down by Article 
40(3) of the Treaty); judgment in Case 106/83 Sermide ν 
Cassa Conguaglio Zucchero [1984] ECR 4209, paragraph 28 
(in which it was held that, where elements in the common 
organisation of the markets arc differentiated according to 
region or according to other factors affecting production or 
consumption, the principle of non-discrimination between 
Community producers and consumers may be said to have 
been complied with only where the differentiating criteria 
used arc objective in character and ensure a proportionate 
division of the advantages and disadvantages for those con­
cerned); judgment in Case 222/84 Johnston v Chief Con­
stable of the Royal Ulster Constabulary [1986] ECR 1651, 
paragraph 38 (concerning the proportionality of a deroga­
tion on public security grounds from the prohibition on sex 
discrimination in relation to taking up employment as a 
police officer); judgment in Case C-127/92 Enderby v Fren-
chay Health Authority and Secretary of State for Health 
[1993] ECR I-5535, paragraph 29 (concerning the propor­
tionality of the difference in remuneration between two 
functions of equal value — one performed almost exclus­
ively by women and the other preponderantly by men 
— allegedly justified by the scarcity of candidates for the 
function carrying higher remuneration). 
I-4631 
OPINION OF MR LA PERGOLA — CASE C-171/96 
treatment; for the very reason that British 
citizens are not liable to deportation mea­
sures, the Jersey authorities are required, by 
Article 4 of the Protocol, to adopt such mea­
sures against citizens of Member States other 
than the United Kingdom only in cases 
where the continued presence of the Com­
munity immigrant in the territory of the 
island constitutes a genuine and sufficiently 
serious threat to the fundamental interests of 
the local community, such as those relating 
to public policy, public security or public 
health. 
50. So far as concerns, in particular, recourse 
to the justifications of 'public policy' and 
'public security' — which the island authori­
ties are to interpret and apply by reference to 
the fundamental interests of Jersey society at 
the material time —, it also follows from the 
principle of non-discrimination that the per­
sonal conduct of a Community national can­
not constitute a genuine and sufficiently seri­
ous threat to the fundamental interests of the 
Bailiwick where, faced with similar conduct 
by British citizens, the Jersey authorities do 
not usually adopt restrictive measures which, 
although of a different type, are in practice 
designed to restrain such conduct. 
51. On that premiss, I am in agreement with 
the Commission in finding that — in order 
to assess whether the use of deportation in 
an individual case against a non-British 
Community citizen may be regarded as pro­
portionate, that is to say in compliance with 
the obligation to apply the same treatment 
under Article 4 of the Protocol —, the 
appropriate comparison is with the Jersey 
criminal courts' practice of binding over (see 
point 15 above). 
Although that restrictive measure involves 
bargaining with the offender and has effects 
which are limited in time, the two types of 
measure have important similarities, as was 
recognised by Advocate General Warner in 
the Saunders case. 6 9 In that respect, I regard 
as being of some significance the observa­
tions of the Lieutenant Governor and the 
British Government — which the Royal 
Court will have means of verifying in detail 
— to the effect that the Jersey criminal 
courts quite frequently bind over offenders 
convicted of theft, and that in the over­
whelming majority of cases such measures 
concern persons originating in the United 
Kingdom. 
52. Finally, the prohibition of discrimination 
on grounds of nationality pursuant to Article 
4 of the Protocol, interpreted in the manner 
indicated above, entails an obligation on the 
part of the Jersey authorities, in each indi­
vidual case where the question of the 
69 — With reference to a deportation order recommended, in 
other national proceedings (R ν Secchi), by a British Metro­
politan Stipendiary Magistrate, which is a first-instance 
criminal court that does not have the power to bind over an 
offender (see the judgment in Case 175/78 R v Saunders 
[1979] ECR 1129 and the Opinion, p. 1136, especially p. 
1139). 
I - 4632 
PEREIRA ROQUE ν LIEUTENANT GOVERNOR OF JERSEY 
possible deportation of a Community 
national arises, to balance the interests pro­
tected by the measure to be adopted against 
the fundamental rights of the individual con­
cerned. Such rights include, in particular, the 
right to his private and family life, taking 
into account also the length of his previous 
residence in the territory of the Bailiwick. 
VI — Question 3 
53. My answer to the Royal Court's third 
question, however, would be that Article 4 
of the Protocol does not preclude the com­
petent Jersey authorities from deporting a 
citizen of another Member State from the 
island's territory even where the public 
policy considerations on which those 
authorities base their decision would not in 
practice justify that person's deportation 
from the United Kingdom. 
That solution follows from the premiss set 
out above. In the matter of deportation, the 
Jersey authorities are to interpret and apply 
'public policy' and 'public security' by refer­
ence to the fundamental interests of Jersey 
society, given that the case-law of the Court 
of Justice, whereby the concept of public 
policy, where it limits the fundamental prin­
ciples of equal treatment and freedom of 
movement, is to be interpreted strictly and 
subject to control by the Community insti­
tutions, 7 0 does not apply to Jersey or to the 
action of its administrative authorities. 
54. That solution does, however, have 
important consequences as regards the point 
— not expressly raised by the Royal Court 
in its questions — concerning the effective­
ness in the territory of the United Kingdom 
outside Jersey of a deportation order from 
the territory of the Bailiwick, adopted by the 
island authorities. 
55. As indicated above,7 1 Schedule 4, Sec­
tion 3 of the Immigration Act 1971 provides 
that such an order is to take effect through­
out the United Kingdom, save where, in an 
individual case, the British Secretary of State 
expressly limits the effects of the measure to 
the territory of the island. 
However, such an automatic extension must 
be excluded precisely by reason of the inap­
plicability to Jersey of the substantive and 
procedural restrictions on deportation laid 
down by Article 48(3) of the Treaty and 
Directive 64/221, which raises the possibility 
of a deportation measure being adopted on 
the basis of justifying grounds which are 
70 — See Case 36/75 Rutili ν Minister for the Interior [1975] 
ECR 1219, paragraph 27. 
71 — See footnotes 30 and 31 above, and the text relating thereto. 
I - 4633 
OPINION OF MR LA PERGOLA — CASE C-171/96 
somewhat different from those required by 
Community rules in the United Kingdom. In 
other words, it is the extension of the depor­
tation measure to the territory of the United 
Kingdom as a whole which must be the sub­
ject of an express provision. 
56. I therefore agree with the Commission's 
conclusions as regards the situation where 
the Secretary of State does not expressly pro­
vide for the territorial effect of a given 
deportation measure adopted by the Lieu­
tenant Governor against a non-British Com­
munity citizen to be limited to Jersey. Such 
an omission cannot in any case empower the 
United Kingdom authorities to refuse the 
person concerned entry to the national terri­
tory (save, of course, for Jersey), so long as 
the refusal is based on the measure in ques­
tion. 
VII — Conclusions 
In the light of the above considerations, I propose that the Court should reply as 
follows to the questions referred by the Royal Court of Jersey: 
(1) Article 4 of Protocol N o 3 to the Act of Accession of the United Kingdom to 
the European Communities does not confer on citizens of a Member State 
other than the United Kingdom immunity from deportation from the terri­
tory of the Bailiwick of Jersey, notwithstanding that British citizens are not 
subject to immigration controls in that territory or liable to be deported from 
it. 
(2) Article 4 of the Protocol does, however, preclude the competent Jersey 
authorities from deporting a citizen of a Member State other than the United 
Kingdom from Jersey unless that person's continued presence in the territory 
of the Bailiwick constitutes a genuine and sufficiently serious threat to its fun­
damental interests, such as those relating to public policy, public security or 
public health. 
The island authorities are to interpret and apply those concepts having regard to 
the fundamental interests of Jersey society at the material time. 
I - 4634 
PEREIRA ROQUE ν LIEUTENANT GOVERNOR OF JERSEY 
In particular, the personal conduct of a non-British Community citizen cannot 
be regarded as giving rise to a genuine and sufficiently serious threat to the 
fundamental interests of Jersey where it is shown that, in the case of similar 
conduct by British citizens, the Jersey authorities do not usually adopt restric­
tive measures which, although of a different type, are in practice designed to 
restrain such conduct, such as binding over. 
Moreover, the justification for a deportation order must be assessed by balanc­
ing the interests involved against the fundamental rights of the individual con­
cerned, such as, in particular, the right to his private and family life, taking 
into account also the length of his previous residence in the territory of the 
Bailiwick. 
(3) Article 4 of the Protocol does not preclude the competent Jersey authorities 
from deporting a citizen of a Member State from the island's territory where 
the public policy considerations on which those authorities base their decision 
would not in practice lead to that person's deportation from the United King­
dom. However, a deportation order adopted by the Jersey authorities against a 
citizen of a Member State does not take effect outside the territory of the 
island, even in the absence of an express measure by the British Secretary of 
State limiting the territorial effect of the order. 
I - 4635