On 22 May 1993 Mr Flynn, a British citizen, returned to Dover after a day trip to France.

He was asked by a UK immigration officer to produce his passport.

He refused, advising the immigration officer that the request was unlawful by reason of EU law.

The immigration officer was unimpressed by this claim, wherein began the tale of R v Secretary of State for the Home Department, ex p.

Flynn.At the heart of the action is the question of whether passport checks on people entering the UK from other EU states is lawful.

This issue is one which has caused the government rather a lot of trouble since the beginning of the year.

Not only has a junior minister resigned over it but the so-called whipless Tory members of Parliament have taken it as something of a rallying cry.On 9 March 1995 the first UK decision on this issue was handed down by Mr Justice McCullough.

He concluded that UK passport controls are still lawful.

The matter revolves around the interpretation of a short provision of what is now known as the European Community Treaty and which, most inconveniently, changed its number between the time the action began and the time Mr Justice McCullough was called upon to pronounce.What is now art 7A EC (before 1 November 1993, art 8A EEC) provides for the establishment of the internal market within the EU.

This internal market 'shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured...' The provision was introduced into community law by the Single European Act 1986 and was to be established by 31 December 1992.Leave to move for judicial review was granted and, on Monday 27 February 1995, the hearing began in court 1 of the Royal Courts of Justice.

The waters had been muddied earlier that month by the resignation of Charles Wardle MP, a junior minister of state, apparently on exactly this question.

From the press reports it appeared that Mr Wardle, who had been under-secretary of state for the Home Department on 31 December 1992, resigned, believing that legal advice which he had apparently received when minister that UK immigration checks on persons coming from other EU states was not lawful and that the prime minister ought to be doing something, or something more, about this.Mr Flynn, being an avid reader of newspapers, was most annoyed to discover that Mr Wardle, who had in fact been the responsible minister for the act of his immigration officer on 22 May 1993, appeared to have believed that on that exact date the act of the immigration officer was not lawful.

Unfortunately for both Mr Flynn and Mr Wardle, Mr Justice McCullough reached a different conclusion.

The misfortune for Mr Flynn is that he lost (at least round one); the misfortune for Mr Wardle would appear to be that he resigned from the government on bad advice.Ian Hunter QC, leading Peter Duffy for the applicant and Stephen Richards, leading Mark Shaw for the respondent government department, all agreed that what Mr Justice McCullough had to decide was whether he could give judgment one way or the other free of doubt about the answer which the European Court of Justice would give to the question.

If he could not give judgment free of such doubt, then he must refer the matter to the European Court of Justice so that that court could provide him with the definitive interpretation of art 7A EC.Three arguments had to be settled.

First, is the wording of the provision sufficiently clear and precise so that it could have direct effect in the legal order of the member states without any further act needing to be taken? Secondly, was the deadline one which had legal significance? And thirdly, if the UK extended the benefit of no passport checks at its borders with one other member state could it refuse to extend such a benefit to the persons arriving across the borders with other member states?The first two arguments involve consideration of the wording of the provision, and the status of a declaration to the Single European Act indicating that art 7A was not intended to have automatic legal effect.

On these two issues the European Commission, which is the guardian of the EC treaties, had published an opinion in May 1992 about the meaning of art 7A.

It stated inter alia that 'the objective must be achieved by the end of 1992'.

This statement, in Eurospeak, is suspiciously close to a suggestion that if by the implementation date the member states, including the UK, had not dismantled internal frontiers, in the Commissi on's opinion in law these checks would become unlawful.In the judgment, Mr Justice McCullough came to the conclusion that he was satisfied that the European Court of Justice would agree with him that neither was the time limit legally binding on the UK nor did the provision impose an obligation on the UK.The third argument in the case revolved around the lack of passport checks on anyone coming to the UK from only one other member state, the Republic of Ireland.

The difficulty here is that if art 7A EC brings within the material scope of Community law border controls between the member states, then irrespective of whether it has direct effect after the implementation date, it must be applied subject to art 6 EC which prohibits discrimination on the basis of nationality within the EU.There is substantial jurisprudence from the European Court of Justice about the art 6 EC obligation and indirect discrimination.

Generally, where a rule which is apparently neutral in wording has the effect of discriminating against nationals of other member states because it will affect more of them then it may not pass the art 6 test (see for instance Hoeckx [1984] ECR 973).Nonetheless, having considered counsels' submissions which lasted a week, Mr Justice McCullough came to the conclusion that he could decide definitively against Mr Flynn free from any doubt about the answer which the European Court of Justice might give.The matter seems unlikely to end here.

The Court of Appeal may well find that it is called upon to give its opinion on art 7A EC in due course.