European law still allows frontier control LAW REPORT: 10 March 1995

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Regina v Secretary of State for the Home Department, Ex parte Flynn.

Queen's Bench Division (Mr Justice McCullough).

9 March 1995.

The United Kingdom can lawfully maintain frontier controls and immigration checks on persons entering the UK from other member states of the European Community.

Mr Justice McCullough dismissed an application by Donald Walter Flynn for judicial review of the Home Secretary's decision to maintain frontier controls and passport checks on persons between other member states of the European Community and the United Kingdom.

Mr Flynn, a British citizen, travelled from Dover to Calais. On his return to Dover, he was asked to produce his passport in accordance with the Home Office's policy that after 31 December 1992 passengers entering the UK from other member states, except the Republic of Ireland, would be asked to produce a passport or other national identity document to establish their nationality, and British citizens and other EC nationals would then enter without further formality. He refused, was detained for 40 minutes and then admitted.

He applied for judicial review on the ground that article 7a of the European Community Treaty, as inserted by the Single European Act which was signed in 1986, required member states to abolish all internal frontier controls by 31 December 1992, when the internal market was to be achieved and that obligation had direct application in national law.

Ian Hunter QC and Peter Duffy (Baileys Shaw & Gillett) for Mr Flynn; Stephen Richards and Mark Shaw (Treasury Solicitor) for the Home Secretary.

MR JUSTICE McCULLOUGH said that the only entity on which an express obligation was cast by article 7a was the Community. The obligation was to adopt measures with the aim of progressively establishing the internal market over a period expiring on 31 December 1992.

The possibility that article 7a contemplated that, on the advent of the internal market, nationals of member states should be subject to no internal frontier controls could not be rejected. If that was so it was difficult to see how any internal frontier controls could be maintained. On that basis, although article 7a might not have intended nationals of third countries to benefit, they would in practice do so when the internal market was established.

It did not follow that article 7a contemplated that the internal market would necessarily or automatically be established on 31 December 1992. Article 7a showed that the Community contemplated that measures would need to be taken by the Community itself, which saw the progression towards the establishment of the internal market as one of some complexity.

Bold would be the person who could have said in 1986 that matters such as policy in relation to visas and asylum, unauthorised immigration, residence and work by nationals of third countries, drug trafficking, terrorism and international crime, would all be achieved before 1993. Imprudent would be the member state which agreed to dismantle all internal frontier controls without being satisfied that sufficient of the concomitant measures were in place to protect its own nationals.

In 1986, the achievement of the internal market by 31 December 1992 could not have been more than an aim, albeit one which it was resolved to achieve if possible. By the end of 1992, while considerable progress had been made, much remained to be done.

Article 7a cast on the Community the obligation to do no more than adopt measures with the aim of establishing the internal market by 31 December 1992. It did not ordain the internal market would come into being on 1 January 1993. That conclusion accorded with the unusual wording of article 7a.

The effect of article 7a was not to make unlawful after 31 December 1992 the maintenance at internal frontiers of the very light degree of control on European Community nationals to which Mr Flynn was subjected. Further, there was no doubt that the European Court of Justice would hold that article 7a did not have direct effect. The application was dismissed.

Ying Hui Tan, Barrister