61998J0356

Freedom of movement for persons - Workers - Right of residence of family members - Indefinite leave to remain for a worker's spouse - National rules requiring a shorter period of residence for the spouses of persons present and settled in national territory than for nationals of another Member State and members of their families not fulfilling that condition - Discrimination contrary to Article 7(2) of Regulation No 1612/68 - None

(EC Treaty, Art. 8a (now, after amendment, Art. 18 EC); Regulation No 1612/68 of the Council, Art. 7(2))

$$Legislation of a Member State which requires spouses of migrant workers who are nationals of other Member States to have resided in the territory of that Member State for four years before they become entitled to apply for indefinite leave to remain and to have their applications considered, but which requires residence of only 12 months for the spouses of persons who are settled in that territory and are not subject under the immigration laws to any restriction on the period for which they may remain does not constitute discrimination contrary to Article 7(2) of Regulation No 1612/68.

As Community law stands at present, the right of nationals of a Member State to reside in another Member State is not unconditional. That situation derives, first, from the provisions on the free movement of persons contained in Title III of Part Three of the Treaty and the secondary legislation adopted to give them effect and, second, from the provisions of Part Two of the Treaty, and more particularly Article 8a of the Treaty (now, after amendment, Article 18 EC), which, whilst granting citizens of the Union the right to move and reside freely within the Member States, expressly refers to the limitations and conditions laid down in the Treaty and by the measures adopted to give it effect. Accordingly, the Member States are entitled to rely on any objective difference there may be between their own nationals and those of other Member States when they lay down the conditions under which leave to remain indefinitely in their territory is to be granted to the spouses of such persons.

( see paras 30-31, 35 and operative part )

In Case C-356/98,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the Immigration Adjudicator, United Kingdom, for a preliminary ruling in the proceedings pending before that court between

Arben Kaba

and

Secretary of State for the Home Department

on the interpretation of Article 7(2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, J.C. Moitinho de Almeida, D.A.O. Edward, L. Sevón (Presidents of Chambers), C. Gulman, J.-P. Puissochet, G. Hirsch, P. Jann (Rapporteur) and H. Ragnemalm, Judges,

Advocate General: A. La Pergola,

Registrar: D. Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

- Arben Kaba, by P. Duffy QC and T. Eicke, Barrister, instructed by E. Guild and N. Rollason, Solicitors,

- the United Kingdom Government, by M. Ewing, of the Treasury Solicitor's Department, acting as Agent, and by R. Plender QC,

- the Commission of the European Communities, by P.J. Kuijper, Legal Adviser, and N. Yerrell, a national civil servant seconded to the Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Kaba, represented by R. Allen QC and T. Eicke, of the United Kingdom Government, represented by M. Ewing and R. Plender, and the Commission, represented by P.J. Kuijper, at the hearing on 15 June 1999,

after hearing the Opinion of the Advocate General at the sitting on 30 September 1999,

gives the following

Judgment

1 By order of 25 September 1998, received at the Court on 1 October 1998, the Immigration Adjudicator referred to the Court for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) two questions on the interpretation of Article 7(2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475).

2 Those questions were raised in proceedings brought by Mr Kaba against the Secretary of State for the Home Department concerning the latter's refusal to grant him indefinite leave to remain in the United Kingdom.

Legal background

Community legislation

3 According to Article 7(1) and (2) of Regulation No 1612/68:

1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and, should he become unemployed, reinstatement or re-employment;

2. He shall enjoy the same social and tax advantages as national workers.

4 Article 10(1) of Regulation No 1612/68 provides:

The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:

(a) his spouse and their descendants who are under the age of 21 years or who are dependants;

(b) dependent relatives in the ascending line of the worker and his spouse.

5 Article 4(4) of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ, English Special Edition 1968 (II), p. 485) provides as follows:

A member of the family who is not a national of a Member State shall be issued with a residence document which shall have the same validity as that issued to the worker on whom he is dependent.

National legislation

6 The relevant national law is to be found in the Immigration Act 1971, the Immigration (European Economic Area) Order 1994 (hereinafter the EEA Order) and the United Kingdom Immigration Rules (House of Commons Paper 395) 1994 in force at the material time (hereinafter the Immigration Rules), which govern admission to and the right to reside in the United Kingdom.

7 According to paragraph 255 of the Immigration Rules:

An EEA National (other than a student) and the family member of such a person, who has been issued with a residence permit or residence document valid for five years, and who has remained in the United Kingdom in accordance with the provisions of the 1994 EEA Order for four years and continues to do so may, on application, have his residence permit or residence document (as the case may be) endorsed to show permission to remain in the United Kingdom indefinitely.

8 Pursuant to Paragraph 287 of the Immigration Rules:

The requirements for indefinite leave to remain for the spouse of a person present and settled in the United Kingdom are that:

(i) the applicant was admitted to the United Kingdom or given an extension of stay for a period of 12 months and has completed a period of 12 months as the spouse of the person present and settled here; and

(ii) the applicant is still the spouse of the person he or she was admitted or granted an extension of stay to join and the marriage is subsisting; and

(iii) each of the parties intends to live permanently with the other as his or her spouse ...

9 Section 33(2A) of the Immigration Act provides that references to a person being settled in the United Kingdom are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain.

10 The national courts have held that a migrant worker who is a national of a Member State of the European Union is not, for that reason alone, settled in the United Kingdom for the purposes of that provision.

11 Article 4(1) of the EEA Order provides that a qualified person is entitled to reside in the United Kingdom for as long as he remains a qualified person, and that entitlement is extended to members of his family, including spouses, by Article 4(2). Article 6 of the Order defines a qualified person as including an EEA national who undertakes in the United Kingdom the activities of a worker.

Facts and main proceedings

12 Mr Kaba, a Yugoslav national, arrived in the United Kingdom on 5 August 1991. His request for leave to enter the United Kingdom for one month as a visitor was refused but he did not leave the United Kingdom. In February 1992 an application for asylum was lodged on his behalf.

13 On 4 May 1994 he married Virginie Michonneau, a French national, whom he had met in 1993 when she was working in the United Kingdom. The couple have lived together since their marriage. Having temporarily gone back to France, Ms Michonneau returned to the United Kingdom in January 1994 to seek work, which she found in April 1994. In November 1994 she obtained a five-year residence permit valid until 2 November 1999. Mr Kaba was granted leave to remain in the United Kingdom for the same period, as the spouse of a European Community national exercising her rights under the EC Treaty.

14 On 23 January 1996 Mr Kaba applied for indefinite leave to remain in the United Kingdom.

15 On 9 September 1996 the Secretary of State for the Home Department refused to grant such leave. He stated in a letter of 3 October 1996 that Mr Kaba did not fulfil the requirements of paragraph 255 of the Immigration Rules since his wife had remained in the United Kingdom, in the terms of the EEA Order, for a total of only one year and 10 months.

16 On 15 September 1996 Mr Kaba appealed against that decision to the Immigration Adjudicator, claiming that the provisions of the United Kingdom Immigration Rules applicable to persons present and settled in the United Kingdom were more favourable than the provisions that applied to himself and his wife.

17 The Immigration Adjudicator considers that the position in this case is similar to that in Case 59/85 Netherlands v Reed [1986] ECR 1283, in which the Court held that the possibility for a migrant worker of obtaining permission for his unmarried companion to reside with him, where that companion was not a national of a Member State, constituted a social advantage for the purposes of Article 7(2) of Regulation No 1612/68.

18 The Immigration Adjudicator observes, however, that although in Reed the Court held that a Member State which grants a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 to its nationals may not refuse to grant the same advantage to migrant workers who are nationals of other Member States, it also stated, in paragraph 23 of its judgment in Case C-370/90 Singh [1992] ECR I-4265, that Articles 48 and 52 of the EC Treaty (now, after amendment, Articles 39 and 43 EC) did not prevent Member States from applying to foreign spouses of their own nationals rules on entry and residence more favourable than those provided for by Community law.

19 In those circumstances, the Immigration Adjudicator stayed proceedings pending a preliminary ruling from the Court on the following questions:

1. Does the right to apply for indefinite leave to remain in the United Kingdom and the right to have that application considered constitute a "social advantage" within the meaning of Article 7(2) of Regulation No 1612/68?

2. Does the requirement imposed on the spouses of EC nationals to have been resident in the United Kingdom for four years before an application for indefinite leave to remain in the United Kingdom may be made and considered (see paragraph 255 of the United Kingdom Immigration Rules, House of Commons Paper 395), as compared to a requirement of 12 months' residence before such application can be made, as is applied to spouses of UK nationals and spouses of those present and settled in the United Kingdom (paragraph 287 of the United Kingdom Immigration Rules, House of Commons Paper 395) constitute unlawful discrimination contrary to Article 7(2) of Regulation No 1612/68?

The questions referred to the Court

20 The aim of Regulation No 1612/68, namely freedom of movement for workers, requires, for such freedom to be guaranteed in compliance with the principles of liberty and dignity, the best possible conditions for the integration of the Community worker's family in the society of the host country (Case C-308/89 Di Leo [1990] ECR I-4185, paragraph 13).

21 To that end, Article 10(1) of that regulation provides inter alia that a spouse, of whatever nationality, is entitled to install himself with a worker who is a national of one Member State and who is employed in the territory of another Member State.

22 A spouse who is not a national of a Member State is entitled, under Article 4(4) of Directive 68/360, to be issued with a residence document having the same validity as that issued to the worker on whom he is dependent.

23 It follows that the Community rules confer on the spouses of migrant workers who are nationals of other Member States a right of residence co-extensive with that accorded to those workers.

24 In this case, however, the appellant in the main proceedings, in seeking indefinite leave to remain in the United Kingdom, is applying, in his capacity as the spouse of a migrant worker, for a more extensive right of residence than that conferred on the migrant worker herself.

25 Even if such a right constitutes a social advantage within the meaning of Article 7(2) of Regulation No 1612/68, the question still arises whether legislation of a Member State which requires spouses of migrant workers who are nationals of other Member States to have resided in the territory of that Member State for four years before they become entitled to apply for indefinite leave to remain and to have their applications considered, but which requires residence of only 12 months for the spouses of persons who are present and settled in that territory, constitutes discrimination contrary to that provision of Community law.

26 Paragraphs 255 and 287 of the Immigration Rules provide that the period of residence in the United Kingdom prescribed for obtaining leave to reside there indefinitely is shorter for the spouses of persons present and settled in the United Kingdom than for persons who are nationals of Member States and members of their families who are not present and settled. Persons who are ordinarily resident in the United Kingdom are regarded as being present and settled in the United Kingdom and they are not subject to any restriction on the period for which they may remain there.

27 The Court has consistently held that the equal treatment rule laid down in Article 48 of the Treaty and in Article 7 of Regulation No 1612/68 prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead in fact to the same result (see, inter alia, Case C-57/96 Meints [1997] ECR I-6689, paragraph 44).

28 It must be conceded that, where rules make the grant of an advantage subject to the requirement that the beneficiary be present and settled in national territory, that condition is more easily met by national workers than by workers who are nationals of other Member States.

29 The United Kingdom Government considers, however, that the situation of a spouse of a national of a Member State exercising rights conferred on him by the Treaty is not comparable to that of a spouse of a person who is settled in the United Kingdom.

30 As Community law stands at present, the right of nationals of a Member State to reside in another Member State is not unconditional. That situation derives, first, from the provisions on the free movement of persons contained in Title III of Part Three of the EC Treaty and the secondary legislation adopted to give them effect and, second, from the provisions of Part Two of the EC Treaty, and more particularly Article 8a of the EC Treaty (now, after amendment, Article 18 EC), which, whilst granting citizens of the Union the right to move and reside freely within the Member States, expressly refers to the limitations and conditions laid down in the Treaty and by the measures adopted to give it effect.

31 Accordingly, the Member States are entitled to rely on any objective difference there may be between their own nationals and those of other Member States when they lay down the conditions under which leave to remain indefinitely in their territory is to be granted to the spouses of such persons.

32 More particularly, the Member States are entitled to require the spouses of persons who do not themselves enjoy an unconditional right of residence to be resident for a longer period than that required for the spouses of persons who already enjoy such a right, before granting the same right to them.

33 Once leave to remain indefinitely has been granted no condition can be imposed on the person to whom such leave has been granted, and therefore the authorities of the host Member State must be able, when the application is made, to require the applicant to have established sufficiently enduring links with that State. Such links may result, in particular, from the fact that the spouse has been granted indefinite leave to remain in the national territory or that the person applying has already been resident for a considerable period.

34 Furthermore, migrant workers who are nationals of other Member States may themselves acquire the status of a person present and settled in the United Kingdom, so that their spouses will then qualify to be granted indefinite leave to remain after only 12 months' residence pursuant to paragraph 287 of the Immigration Rules.

35 For the foregoing reasons and without there being any need to rule whether leave to remain indefinitely in national territory constitutes a social advantage within the meaning of Article 7(2) of Regulation No 1612/68, the answer to be given to the national court must be that legislation of a Member State which requires spouses of migrant workers who are nationals of other Member States to have resided in the territory of that Member State for four years before they become entitled to apply for indefinite leave to remain and to have their applications considered, but which requires residence of only 12 months for the spouses of persons who are present and settled in that territory, does not constitute discrimination contrary to Article 7(2) of Regulation No 1612/68.

Costs

36 The costs incurred by the United Kingndom Government and the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main action, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

in answer to the questions referred to it by the Immigration Adjudicator by order of 25 September 1998, hereby rules:

Legislation of a Member State which requires spouses of migrant workers who are nationals of other Member States to have resided in the territory of that Member State for four years before they become entitled to apply for indefinite leave to remain and to have their applications considered, but which requires residence of only 12 months for the spouses of persons who are settled in that territory, does not constitute discrimination contrary to Article 7(2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community.