The Queen v Secretary of State for the Home Department, ex parte Mann Singh Shingara (C-65/95) and ex parte Abbas Radiom (C-111/95).
Date: 1997-06-17
21 The applicants in the main proceedings rely in particular on the judgment of the Court of Justice in Case 98/79 Pecastaing v Belgian State [1980] ECR 691, according to which Article 8 of the directive covers all the remedies available in a Member State in respect of acts of the administration within the framework of the judicial system and the division of jurisdiction between judicial bodies in the State in question.  They maintain that where nationals of a Member State have a specific right of appeal against any refusal of recognition of their right of entry, nationals of other Member States must have the same right of appeal in respect of a similar refusal, even if the reasons for the refusal differ.  The fact that both their cases concern the right of entry into the national territory provides, they maintain, a sufficient degree of similarity to require that judicial remedies of appeal be available.
24 The Court notes that Article 8 does not govern the ways in which remedies are to be made available, for instance by stipulating the courts from which such remedies may be sought, such details being dependent upon the organization of the courts in each Member State (see, to that effect, Pecastaing, paragraph 11).
25 However, the obligation to grant the person concerned the same legal remedies in respect of any decision concerning entry, or refusing the issue or renewal of a residence permit, or ordering expulsion from the territory as are available to nationals in respect of acts of the administration, means that a Member State cannot, without being in breach of the obligation imposed by Article 8, organize, for persons covered by the directive, legal remedies governed by special procedures affording lesser safeguards than those pertaining to remedies available to nationals in respect of acts of the administration (Pecastaing, paragraph 10, and Joined Cases C-297/88 and C-197/89 Dzodzi v Belgian State [1990] ECR I-3763, paragraph 58).
26 By contrast, where national law provides no specific procedures for the remedies available to persons covered by the directive as regards entry, refusal to issue or renew a residence permit, or decisions of expulsion, the obligation imposed on Member States by Article 8 is fulfilled if nationals of other Member States enjoy the same remedies as those generally available against acts of the administration in that Member State (Pecastaing, paragraph 11).
28 As the Court of Justice held in Joined Cases 115/181 and 116/81 Adoui and Cornuaille v Belgian State [1982] ECR 1665, paragraph 7, the reservations contained in Articles 48 and 56 of the EC Treaty permit Member States to adopt, with respect to the nationals of other Member States and on the grounds specified in those provisions, in particular grounds justified by the requirements of public policy, measures which they cannot apply to their own nationals, inasmuch as they have no authority to expel the latter from the national territory or to deny them access thereto.
30 The two situations are indeed in no way comparable: whereas in the case of nationals the right of entry is a consequence of the status of national, so that there can be no margin of discretion for the State as regards the exercise of that right, the special circumstances which may justify reliance on the concept of public policy as against nationals of other Member States may vary over time and from one country to another, and it is therefore necessary to allow the competent national authorities a margin of discretion (Case 41/71 Van Duyn v Home Office [1974] ECR 1337, paragraph 18).
34 As the Court has already held, the provisions of Article 9 of the directive complement those of Article 8.  Their purpose is to provide minimum procedural guarantees for persons affected by one of the measures referred to in the three cases defined in Article 9(1).  Where the right of appeal is restricted to the legality of the decision, the purpose of the intervention of the competent authority referred to in Article 9(1) is to enable an exhaustive examination of all the facts and circumstances, including the expediency of the proposed measure, to be carried out before the decision is finally taken (Case 131/79 Regina v Secretary of State for Home Affairs, ex parte Santillo [1980] ECR 1585, paragraph 12; Adoui and Cornuaille, paragraph 15, and Case C-175/94 R v Secretary of State for the Home Department, ex parte Gallagher [1995] ECR I-4253, paragraph 17).
35 If Article 9(2) of the directive were to be interpreted as meaning that the addressee of a decision refusing to issue a first residence permit or a decision ordering expulsion before the issue of such a permit was entitled to obtain an opinion from the competent authority mentioned in Article 9(1) in circumstances other than those defined in that paragraph, he would be entitled to do so even where the remedies available entailed a review of the substance and an exhaustive examination of all the facts and circumstances.  Such an interpretation would not be in accordance with the purpose of the provisions, since the procedure of referral for consideration and an opinion provided for in Article 9 is intended to mitigate the effect of deficiencies in the remedies referred to in Article 8 of the directive (Pecastaing, paragraph 20).
37 Accordingly, the reply to the third question is that, on a proper construction of Article 9 of the directive, the three cases mentioned in Article 9(1) (namely `where there is no right of appeal to a court of law, or where such appeal may be only in respect of the legal validity of the decision, or where the appeal cannot have suspensory effect') apply equally as regards Article 9(2), that is to say, where the decision challenged is a refusal to issue a first residence permit or a decision ordering expulsion before the issue of such a permit.
Fourth and fifth questions
39 Under the principles set out by the Court in Adoui and Cornuaille, paragraph 12, a Community national expelled from a Member State may apply for a fresh residence permit, and if that application is made after a reasonable time it must be examined by the competent administrative authority in that State, which must take into account, in particular, the arguments put forward to establish that there has been a material change in the circumstances which justified the first decision ordering expulsion.