C-356/98

1 — In particular, indefinite leave to remain I - 2628

2 — In particular, indefinite leave to remain granted to the spouse of a person present and settled in the United Kingdom (paragraph 287 of the

Immigration Rules) I - 2629

C — Right of residence I - 2631

D — Permission to remain indefinitely for citizens of an EEA Member State and

their family members (paragraph 255 of the Immigration Rules) I-2632

Community law I - 2637

3 — The meaning of 'social advantage' I - 2639 * Original language: Italian. 4 —The meaning of 'social advantage' and the indefinite right to remain . 1-2642 I - 2625

OPINION OF MR LA PERGOLA — CASE C-356/98

B — The second question I - 2648 1 — The issues I - 2648 2 — Rights of residence and comparison of the legal situations of a person 'settled' in the United Kingdom and a Community migrant worker residing there I - 2650 3 — Effects of the entry into force of the Treaty on European Union I - 2655 4 — Comparison of the conditions of admission to the United Kingdom laid down by paragraphs 255 and 287 of the Immigration Rules I-2662 VI — Conclusion I - 2664

1. The questions before the Court today within the Community (hereinafter 'the have been submitted by the United King- Regulation'), 1provides; dom Immigration Adjudicator in connec- tion with proceedings brought by M r Arben Kaba against the decision of the Secretary of State for the Home Depart- ment (hereinafter 'the Secretary of State' or 'the SSHD') rejecting his application for ' 1 . A worker who is a national of a Member authorisation to reside indefinitely in that State may not, in the territory of another country. Member State, be treated differently from national workers by reason of his nation- ality in respect of any conditions of employment and work, in particular as regards r e m u n e r a t i o n , dismissal, a n d should he become unemployed, reinstate- ment or re-employment.

I — The relevant Community legislation 2. He shall enjoy the same social and tax advantages as national workers.'

(a) his spouse...'. Pursuant to Article 4(4) of the Directive, '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'. Pursuant to Article 3(1) of Council Direc- tive 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 (hereinafter 'the Directive'), 2 Community citizens and members of their II — The National legislative background families enjoy a right of entry to the other Member States 'simply on production of a valid identity card or passport'. Article 3(2) of the Directive provides that members of the family of a migrant worker who is a Community national who do not possess A — The relevant legislation the nationality of one of the Member States may be required to have an entry visa, and that Member States are to accord to such persons 'every facility for obtaining any 3. Entry to and residence in the United necessary visas'. Kingdom are governed, inter alia, by the

Immigration Act 1971 (hereinafter 'The work and settle in the United Kingdom Immigration Act'); 4 by the Immigration only after obtaining permission. 9 Any (European Economic Area) Order 1994 person not a British citizen may be given (hereinafter 'the EEA Order'), 5 which is leave to enter or, if already present in the not of concern to United Kingdom citizens United Kingdom, leave to remain either for and their families and by which the United a limited or for an indefinite period. 10 Kingdom, inter alia, transposed the Direc- tive; and by the Immigration Rules 1994 (hereinafter 'the Immigration Rules'), 6by means of which — in the exercise of the powers conferred by section 3(2) of the Immigration Act — the Secretary of State issued directions for the application by the 5. Conditions may be attached to such administration of the legislation on immi- leave only where (whether it be leave to gration in connection with entry to and enter or to remain) it is granted for a residence in the territory of the United limited period (thus, for example, restric- Kingdom. 7 tions may be imposed on the employment in which the holder of the leave may engage in the United Kingdom or a requirement to maintain and accommodate himself with- out recourse to public funds). 1 1The leave may be withdrawn if the holder does not observe the conditions attached to it or ceases to meet the requirements of the rules under which leave was granted. 12 B — Leave to remain

4. Under the Immigration Act, United Kingdom citizens are entitled to live in and to come and go into and from the United Kingdom without let or hindrance: 1 — In particular, indefinite leave to in other words, they have a 'right of remain abode'. 8Unlike Community citizens (see point 11), nationals of non-member coun- tries who do not have that right may live,

remain is not subject to any condition, 'settled' in the United Kingdom if he is restriction or requirement, and that such 'ordinarily resident there without being leave cannot be withdrawn from him. In subject under the immigration laws to any exceptional cases, however, provided that restrictions on the period for which he may he is not a British citizen, the person remain'. 15 In addition to British citizens concerned may be expelled from the United who are Ordinarily resident' there, 16 per- Kingdom. ° Normally, indefinite leave to sons 'settled' in the United Kingdom remain is granted — where other condi- include the holders of indefinite leave to tions are fulfilled — after four years' con- remain. According to the relevant national tinuous presence in the United Kingdom. case-law mentioned by the referring court, For the present purposes, of particular a Community migrant worker who estab- interest among the various cases in which lishes his residence in the United Kingdom an immigrant may be granted indefinite is not thereby 'settled' there within the leave to remain is the case where a person is meaning of section 33(2A) of the Immigra- admitted to the United Kingdom as the tion Act. 17 holder of a work permit subject to the condition, among others, that for four years he has continuously engaged in the United Kingdom in the employment for which he was admitted. 14 In certain cases, however, leave may be granted more rapidly: in only twelve months rather than the normal four years. That applies, in particular and so far as is relevant here, 2 — In particular, indefinite leave to where the applicant is the spouse of a remai?! granted to the spouse of a person person 'present and settled' in the United present and settled in the United Kingdom Kingdom. (paragraph 287 of the Immigration Rules)

I - 2629

OPINION OF MR LA PERGOLA — CASE C-356/98

entitled 'Requirements for [the grant of] 9. The United Kingdom Government has indefinite leave to remain for the spouse of observed that the expression 'admitted to a person present and settled in the United the United Kingdom' in paragraph 287 Kingdom' — provided as follows: must, in the context of the Immigration Rules, be understood as meaning 'admitted to the United Kingdom after being granted leave to enter', as provided for by para- graph 281 of the Immigration Rules, enti- tled 'Requirements for leave to enter the United Kingdom with a view to settlement as the spouse of a person present and settled in the United Kingdom...'. 18 Leave 'The requirements for indefinite leave to to enter with a view to settlement in the remain for the spouse of a person present United Kingdom is granted in the event of a and settled in the United Kingdom are that: successful outcome of the examination conducted by the administration to verify whether the applicant meets the require- ments laid down by paragraph 281 of the Immigration Rules. Those conditions are in part different from those — laid down, in accordance with Article 3 of the Directive, by the EEA Order — for entry to the United Kingdom by migrant workers who (i) the applicant was admitted to the are citizens of a Member State of the United Kingdom... and has completed European Economic Area (hereinafter a period of twelve months as the spouse 'EEA') and members of their families, even of a person present and settled here; if they are nationals of a non-member country: 19

C — Right of residence

(v) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively;

11. Like British citizens, a citizen of a Member State of the EEA (hereinafter 'EEA citizen') has a right of entry to and residence in the United Kingdom without (vi) the parties will be able to maintain the need for any permission. 21 An EEA themselves and any dependants ade- citizen may, however, remain in the terri- quately without recourse to public tory of the United Kingdom without any funds...'. need to obtain a residence permit within the meaning of the Immigration Act only for so long as he is a 'qualified person'. 22 Thus, to give an example which is relevant to the present proceedings, that status is also enjoyed by an EEA citizen who works 10. Since it is not subject to requirements (as an employee or self-employed person) in or restrictions of any kind, indefinite leave to remain, granted to the spouse of a person 'present and settled' in the United King- 20 — See section 1(2) of schedule I to the British Nationality Act dom, does not lapse in the event of a 1981 (1981, C. 61). subsequent divorce or where the person 21 — See section 7(1) of the Immigration Act 1988 (which supplements and partly amends the Immigration Act 1971; who is 'present and settled' later ceases to 1988, C. 14); Article 3(1) and (2) of the EEA Order; and work in the United Kingdom. Accordingly paragraph 7 of the Immigration Rules. 22 — See Article 4(1) of the EEA Order.

the United Kingdom. 2 3 As regards family D — Permission to remain indefinitely for members of EEA citizens, they are entitled citizens of an EEA Member State and their to reside in the United Kingdom, without family members (paragraph 255 of the the need for any permission, as long as they Immigration Rules) remain 'family member(s) of a qualified p e r s o n ' . 2 4 A citizen of a non-member country, married to an EEA citizen, thus loses his right of residence if his spouse ceases to be a 'qualified person', as would occur — in the example given above — where he no longer worked in the United 13. Since Community citizens and mem- Kingdom, or in the case of divorce. 2 5 An bers of their families do not have to obtain EEA citizen residing in the United King- any residence authorisation, 2 9 no provision dom, or a member of his family, who ceases is made for them to be granted indefinite to be 'qualified person' is required to apply leave to remain. However, the United for leave to enter or to remain, 2 6 and is Kingdom immigration legislation provides liable to be expelled from the United King- that, after a certain period of time within dom. 2 7 the United Kingdom, any EEA citizen and his family members may also acquire the status of a 'settled' person within the meaning of Article 33(2A) of the Immigra- tion Act. They may obtain a permit the effects of which are equivalent to those of indefinite leave to remain. Indeed, the United Kingdom immigration legislation contains a provision specifically laying down the conditions under which a person to whom the EEA Order applies ratione personae may become 'settled' in the Uni- ted Kingdom, thereby enjoying a right of residence which extends beyond that avail- 12. A 'qualified person' and the members able under the EEA Order (and the Direc- of his family are issued with a residence tive). permit (or document) upon presentation of the documents provided for by Article 4(3) of the Directive (see footnote 3). In parti- cular, a citizen of a non-member country w h o is the spouse of an EEA citizen enjoying the status of 'qualified person' must prove membership of the family of such a person. 2 8 As in force at the material time, paragraph 255 of the Immigration Rules — appearing 23 — See Article 6 of the EEA Order. in the section entitled 'Settlement' — pro- 24 — See Article 4(2) of the EEA Order. vided that 'an EEA national (other than a 15 — See Article 15(2) of the EEA Order. 26 — See Article 20(1) of the EEA Order. See also, in that connection, the reasons for the issue to Mr Kaba of a five year residence permit (see point 15). 29 — See Article 4(1) of the Directive; section 7(1) of the 27 — See Article 15(2)(a) of the EEA Order. Immigration Act 1988; Article 3(1) and (2) of the EEA 28 — See Article 5(1) and (2) of the EEA Order. Order; and paragraph 7 of the Immigration Rules.

14. According to the national case-law mentioned by the national court, the effects 15. Mr Kaba, a Kosovan Albanian, arrived which, under United Kingdom Law, arc in the United Kingdom on 5 August 1991 associated with 'permission to remain and applied for leave to enter for a period indefinitely' (paragraph 255 of the Immi- of one month. It was not granted. However, gration Rules) and 'indefinite leave to he was allowed to enter the United King- remain' (paragraph 287 of the Immigration dom temporarily on condition that he left Rules) are equivalent. In both cases, the the next day. Mr Kaba, who in the mean- right of residence thus recognised is not time remained in the United Kingdom, subject to any requirement, obligation or lodged an application for asylum on restriction. Essentially, in all cases the 25 February 1992. On 4 May 1994, the status of a person 'settled' in the United appellant in the main proceedings married Kingdom is acquired, 30 resulting in enjoy- Virginie Michonneau, a French citizen, ment of a right of residence close (albeit not whom he had met the previous summer identical) to the 'right of abode' of British when she was working in the United King- citizens (only the latter, in fact, cannot be dom as an an pair. On 7 November 1994 Ms Michonneau — who had temporarily left the United Kingdom and, on returning, 30 — In Cai. the Immigration Appeal Tribunal indicated that the had found employment there — was purpose of a provision like paragraph 255 of the Immi- gration Rules (in that case, the relevant provision was the granted a residence permit valid until one previously in force — which, so far as is relevant here, is similar to paragraph 255 — or paragraph 251 of the 2 November 1999. In response to an appli- Immigration Rules 1990 (HC 251)) is to translate the cation, on 28 November 1994 Mr Kaba Community Law rights specified therein into a right entirely similar to 'indefinite leave to remain' in so far as too was granted leave to remain in the the latter is recognised only by United Kingdom t a w (sec United Kingdom until 2 November 1999. pp. 6 and 7 of the judgment, in which i.aync Imin, AR [1987] p. 247, is cited in support). The reasons given by the United Kingdom

immigration authorities (in this case the 16. On 23 January 1996 M r Kaba applied Home Office Immigration and Nationality for indefinite leave to remain. On the basis Directorate, hereinafter 'the IND'), were as that such leave constitutes a 'social advan- follows; tage' within the meaning of Article 7(2) of the Regulation; that that provision prohi- bits any discrimination between citizens of the host Member State and Community citizens; that paragraph 287 of the Immi- gration Rules lays down a period of only twelve months for the spouse of a British citizen or a person 'present and settled' in the United Kingdom to be able to obtain indefinite leave to remain, M r Kaba, as the spouse of a Community citizen, asked to be treated in the same way as a spouse of a

It appears from the details given previously of the legislative background to the guaranteed by Article 48 of the EC Treaty main proceedings that the spouse of a Community migrant (now after amendment, Article 39 EC) and, worker enjoys a genuine right to reside in a Member State other than his State of origin (a right which is merely therefore, likewise could not be applied to evidenced by the residence document issued by the host Member State; see, for example, Case 48/75 Royer [1976] the spouse of such a person. ECR 497, paragraphs 31 to 36; Case 8/77 Sagulo [1977] ECR 1495, paragraph 8; Case C-363/89 Roux [1991] ECR 1-273 paragraph 12; and Case C-85/96 Martinez Sala [1998] ECR I-2691, paragraph 53) and certainly does not need to obtain a prior authorisation for that purpose.

I - 2634

KABA

on the ground that the applicant's spouse to remain which he had made earlier to the did not meet the condition of a minimum IND. It appears from the order for refer­ period of residence (four years) in the ence that the two spouses have lived United Kingdom laid down in paragraph together since their marriage and that Ms 255 of the Immigration Rules. The IND Michonneau has continued to work in the gave the following reasons for its rejection United Kingdom. Since the request for a of Mr Kaba's application: preliminary ruling reached the Registry of the Court, however, Mr Kaba and Ms Michonneau have divorced.

'[you] have applied... for indefinite leave to remain in the United Kingdom as the IV — The questions holder of a five-year residence document who has remained in the United Kingdom for four years in accordance with the provisions of the 1994 EEA Order and continues to do so, but in view of the fact that your wife, an EEA National, has only 19. To enable her to give a decision in the been a qualified person in the United proceedings between Mr Kaba and the Kingdom (i.e. as a worker) for a total of Secretary of State, the Immigration Adju­ one year ten months, the Secretary of State dicator has submitted the following ques­ is not satisfied that you have fulfilled the tions to the Court for a preliminary ruling: requirements of paragraph 255 of the Immigration Rules and therefore he is not prepared to exercise his discretion in your favour.' 32

'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 advan­ tage" within the meaning of Arti­ cle 7(2) of Regulation No 1612/68? 18. Mr Kaba then appealed against that decision to the Immigration Adjudicator, the judicial authority seeking a preliminary ruling in this case. Before that authority, he essentially repeated the arguments used to support the application for indefinite leave 2. Does the requirement imposed on the spouses of EC nationals to have been resident in the United Kingdom for 32 — Footnote not relevant to Ľnglish translation. four years before an application for

35 — See paragraphs 28 to 30. 36 — Paragraph 23 of the judgment. In relation to the circum- 20. The need for a preliminary ruling on stances of an Indian national accompanying his wife, w h o the provisions referred to arises, according was a British national, when entering the United Kingdom to work as a self-employed person within the meaning of to the national court, from the uncertainty Article 52 of the EC Treaty after both had been employed in the Federal Republic of Germany for a period of almost created by the Court of Justice in the cases two years, in Singh, the Court also stated that 'a of Reed 33 and Singh. 34 in Reed, the Court Community national w h o has availed himself or herself of [the] rights [of free movement and establishment] must held that the right of the unmarried com- enjoy at least the same rights of entry and residence as would be granted to him or her under Community law if panion of a migrant worker to live with his or her spouse chose to enter and reside in another that worker in the host Member State Member State' (paragraph 23). Essentially, if the nationals of the Member States and their family members w h o are constitutes a 'social advantage' for that entitled to move freely in the other Member States (see Case C-274/96 Bickel and Franz [1998] ECR 1-7637, worker. That advantage therefore, if paragraph 15) were not able to enjoy that right, with granted by the host Member State to regard to entitlement to enter and remain, when returning to their Member State of origin, the right of free movement workers of its own nationality, cannot be could not operate in a wholly effective manner (see Case C-378/97 Wijsenbeek [1999] ECR 1-6207, paragraph 22, withheld from workers who are nationals where reference is made to paragraph 2 3 of Singh). In of other Member States without discrimi- other words, those nationals might be dissuaded from leaving their country of origin to pursue an economic nation arising of the kind prohibited by activity in another Member State (see Singh, paragraph 19). In Singh, the United Kingdom Immigration legislation Article 7 (which became Article 6 as a prevented M r Singh's re-entry, even though he was married result of the Treaty on European Union to a United Kingdom citizen. Considering the Community law applicable to that case, the Court essentially did not and is now, after amendment, Article 12 rule out that the rights granted under national legislation to nationals of the Member State in question [might be] EC) and Article 48 of the EC Treaty and, added to and extend those granted under Community law (Opinion of Advocate General Tesauro, point 13). With reference to the specific facts of the main proceedings, the Court prohibited the Member State in question from according to one of its own nationals less favourable 33 — Case 59/85 Reed [1986] ECR 1283. treatment than that guaranteed for migrant Community 34 — Case C-370/90 Singh [1992] ECR I-4265. nationals.

22. As already pointed out (see point 11), the EEA Order, which inter alia gives effect to the Directive, grants the right of resi- dence in the United Kingdom only to 'qualified persons', subject to their remain- ing so qualified, and to certain members of 1 — Introduction their families (spouse, children who are under 21 or dependent on them and dependent ascendants of the worker or the worker's spouse). 37 The Treaty and the Directive in fact confer on those who, possibly with members of their families, go to another Member State only a right of 21. The first question seeks essentially to residence 'conditional' upon the exercise of ascertain whether or not indefinite leave to an economic activity within the meaning of remain in the United Kingdom is to be Article 48: 38 the Directive requires the regarded as a 'social advantage' within the Member State to grant a right of residence meaning of Article 7(2) of the Regulation. to workers and members of their family The national court formulated the question (see Article 48(3)(c) of the EC Treaty). in the above terms because, in its opinion, Under Article 7 of the Directive, the resi- there is no other way of bringing the matter dence permit (which, however, has only before the Court if Mr Kaba is entitled, in declaratory and probative force regarding the circumstances of the case, to invoke a that right) 39 may be withdrawn in the right of residence without limitation of event of loss of employment which is not time under Community law. The only involuntary or the result of temporary possible legal basis in Community law for incapacity. The Court made it clear that his claim appears to lie in the prohibition of the right conferred by Article 48, although discrimination in Article 7(2) of the Reg- implying the possibility of moving freely in ulation; and, consequently, the only way of overcoming the IND's refusal of his appli- cation is to contend that the right claimed 37 — See Article 10 of the Regulation, to which Article 1 of the amounts to a 'social advantage' within the Directive refers. 38 — See Roux, paragraphs 12 and 20, and Singh, paragraph 17. meaning of the abovementioned provision. As to the non-Community law nature of an unconditional That is the logic of the order for reference. I right of residence in the territory of a Member State other than that of origin in circumstances like those of the main think it is appropriate, before considering proceedings, the matter has also been considered in the case-law referred to by the national court (see Gal, the substance, to give a brief overview of Boukssid and the judgment of 23 April 1997 in Sabota and Zeghraba Imm. AR [1997] p. 429). the present Community rules concerning 39 — See Royer, paragraphs 31-36, Sagula, paragraph 8, Roux, rights of residence. paragraph 12, and Martínez Sala, paragraph 53.

23. Similar provisions concern the rights conferred by Articles 52 and 59 of the EC Treaty (the latter now being, after amend- 24. Then there are the directives from ment, Article 49 EC). Reference need only which derives the freedom of movement be made to the provisions of Directive for persons not engaged in any economic 73/148/EEC. 42 It may be true that — in activity (hereinafter jointly referred to as order to ensure full implementation of the 'the residence directives'). 45 However, in freedom of establishment (see the second providing in their turn for a right of recital in the preamble to the Directive) — residence, those directives too require that Article 4(1) of Directive 73/148/EEC certain conditions be satisfied (and con- requires the right of permanent residence tinue to be satisfied), such as the avail- to be granted to Community nationals and their family members who establish them-

Darmon, points 29-43, in Case C-344/95 Commission v residence for employees and self-employed persons w h o Belgium [1997] ECR I-1035. have ceased their occupational activity (OJ 1990 L 180, p. 28), namely those w h o are in receipt of a pension or 41 — See Case C-171/91 Tsiotras [1993] ECR I-2925. income in respect of an industrial accident or disease 42 — Council Directive 73/148/EEC of 21 May 1973 on the (Article 1(1)); and Council Directive 93/96/EEC of abolition of restrictions on movement and residence within 29 October 1993 on the right of residence for students the Community for nationals of Member States with (OJ 1993 L 317, p. 59), students' right of residence being regard to establishment and the provision of services restricted to the duration of the course of studies in

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KABA

Those limits are based on grounds of public policy, public security and public health. They are provided for in Article 48(3), Article 56(1) (now, after amendment, Arti- cle 46( 1 ) EC) and Article 66 of the EC Treaty (now Article 55 EC) and by the three directives for the coordination of national provisions, which rely on the same 25. It should also be remembered that — grounds and provide for a special regime by Regulation No 1251/70 47 and Directive for the expulsion of aliens (hereinafter 75/34/EEC 48 — the Community legal 'directives concerning the movement of order also provides, as a corollary for the foreign nationals'). 50 free movement of persons guaranteed by the Treaty, that is to say a right of residence 'conditional' upon the exercise of an eco- nomic activity, the right — in special cases in fact, which are different from that with which the main proceedings are con- cerned — of employed or self-employed 3 — The meaning of 'social advantage' workers (and their family members) to remain permanently in a Member State after working there. 49

(OJ 1974 L 14, p. 10). public policy, public security or public health to include 49 — The class of 'qualified persons' in the EEA Order also nationals of a Member State who exercise the right to reflects the provisions of Regulation N o 1251/70 and remain in the territory of another Member State after having pursued therein an activity in a self-employed Directive 75/34 (see Article 6(2)(e); sec also paragraphs capacity (OJ 1975 E 14, p. 14). 256 and 257 of the Immigration Ilules).

any unlimited right of residence in the tion N o 1 6 1 2 / 6 8 , namely freedom of United Kingdom. More precisely, there are movement for workers, requires, for such no provisions in the Treaty or secondary freedom to be guaranteed in compliance law which expressly and directly confer with the principles of liberty and dignity, such a right upon him. Quite properly, the best possible conditions for the integra- therefore, the national court has merely tion of the Community worker's family in referred to the Court of Justice the question the society of the host country'. 51 In that whether M r Kaba may be entitled to reside connection, the Court has held that it is permanently in the host State on an indirect essential for a worker and the members of basis, so to speak, if this Court considers his family to be able to enjoy the same that the right to apply for indefinite leave to social advantages as those granted by the remain and the right to have that applica- host State to its own citizens. 52 That tion examined (obviously, in the event of means, therefore, that in order fully to the application being granted) constitutes a achieve the aims pursued by Community social advantage within the meaning of law 'the phrase social advantages in Article 7(2) of the Regulation.

graph 20. See also the fifth recital in the preamble to the to remain is submitted by the spouse of a Regulation, which states that 'the right of freedom of British citizen (or, which is the same for the movement. . . requires that. . . obstacles to the mobility of workers shall be eliminated, in particular as regards the purposes of these proceedings, a person worker's right to be joined by his family and the conditions for the integration of that family into the host country'. who is 'present and settled') or, on the other 52 — See Case 316/85 Lebon [1987] ECR 2 8 1 1 , paragraph 1 1 , hand, by the spouse of a national of and Di Leo, paragraph 13; the principle of non-discrimi- nation laid down by Article 7(2) of the Regulation is another Member State — amounts to dis- merely a specific application of the provisions of Articles 6 and 48(2) of the EC Treaty (see Lebon, paragraph 10, and crimination regarding enjoyment of the Reed, paragraphs 21-24). For a clear understanding of the right which has been found to be in the scope and meaning of social advantages within the mean- ing of the Regulation, I am particularly happy to refer to nature of a social advantage, thereby giving the explanations given by Advocate General Darmon in Di

a grant. Is the latter, at the time when the refusal is notified to him, likely to experience a feeling of being integrated into the host Member State, a feeling that he was being treated by the State no differently from his fellow student whose nationality is different from his own? Integration is not simply a legal concept; it is also something which must be lived and experienced personally and intimately. Hence 28. In order to address and resolve the first it is far from certain, in my view, that the actual possibility of a migrant worker's child pursuing a course outside the question correctly it is necessary, in my host State, which may depend on the award of a grant by view, to bear in mind that, according to the the State, is a priori unconnected with the aim of integration in that State' (point 14 of the Opinion). case-law of the Court, 'the aim of Regula-

53 — Reed (paragraph 25); sec also Case 32/75 Cristini [1975] ECR 1085, paragraph 12, and Case C-57/96 Meints [1997] ECR I-6689, paragraph 39. 54 — Reed, paragraph 26. To the same effect, see Cristini, 56 — Such as unemployed benefit paid to young persons seeking paragraph 13; Case 63/76 Inzirillo [1976] ECR 2057, their first employment, who are still dependent upon a paragraph 21; Case 207/78 Even [1979] ECR 2019, worker (see Deak, and Case C-278/94 Commission v paragraph 22; Case 65/81 Reina [1982] ECR 33, para- Belgium [1996] ECR I-4307; a disability allowance graph 12; Case 261/83 Castelli [1984] ECR 3199, granted to dependent members of a worker's family (see paragraph 11; Case 122/84 Scrivner & Cole [1985] ECR Schmid); a study grant for children (see, among many, Di 1027, paragraph 24; Case 249/83 Hoeckx (1985] ECR Leo; Case C-3/90 Bernini [1992] ECR I-1071; Echternach 973, paragraph 20; Case 157/84 Frascogna I [1985] ECR and Moritz; Martínez Sala; Case C-337/97 Meeusen 1739, paragraph 20; Case 94/84 Deak [1985] ECR 1873, [1999] ECR I-3289; or a special old-age benefit ensuring paragraph 21; Case 137/84 Mutsch [1985] ECR 2681, minimum income for ascendants (Frascogna I and Case paragraph 17; Case 39/86 Lair [1988] ECR 3161, 256/86 Frascogna II [1987] ECR 3431; and Case C-326/90 paragraph 21; Case C-310/91 Schmid [1993] ECR Commission v Belgium [1992] ECR I-5517). I-3011, paragraph 18; Case C-315/94 de Vos [1996] ECR I-1417, paragraph 20; Meints, paragraph 39; Martí- 57 — Such as a migrant worker's right to request that criminal nez Sala, paragraph 25; Case C-185/96 Commission v proceedings against him be conducted in a language other Greece [1998] ECR I-6601, paragraph 20. than the language used in proceedings by the national authorities (Case 137/84 Mutsch [1985] ECR 2681), or the 55 — For example a benefit paid as a lump sum to agricultural right of Community migrant workers to be granted, like workers whose contract of employment was terminated citizens of the host Member State, residence permits for following the setting aside of land by their ex-employer their companions to whom they are not married (Reed). (Meints); reduced cost travel facilities for large families (Cristini); payment in respect of funeral expenses incurred 58 — Such as study grants for children (Di Leo, Bernini, by a member of the family (Case C-237/94 O'Flynn [1996] Echternach and Moritz and Martínez Sala). ECR I-2617). 59 — Cristini (paragraphs 15 and 16).

tion applies to include a person who, under tions unconnected with Community law Community law, is not a 'member of the which are therefore not covered by the family' of a migrant worker. scope of the Regulation, particularly Arti- cle 7(2). Those benefits may be relevant, in the United Kingdom Government's view, only if the other spouse, that is to say the migrant worker, loses that status (for example by returning to his country of origin), or where, having obtained that right, the family member intends applying for naturalization as a British citizen.

Whilst it is true that that right is directly available only to the holder thereof, it nevertheless attaches specifically, albeit indirectly, also to a spouse who works. 60 In response to that contention, the United Kingdom states that the prac- 31. I do not find the observations made by tical benefits deriving from the indefinite the United Kingdom Government regarding (and unconditional) right to remain granted this point convincing. The practical advan- to a person who, like M r Kaba, has no tages deriving from the right to remain to independent right of residence under Com- which the plaintiff in the main proceedings munity law manifest themselves in situa- claims entitlement already exist by virtue of a marriage and do not materialise only in the event of divorce or when the migrant 60 — M r Kaba observes that the right to remain permanently in worker leaves the United Kingdom or the United Kingdom, if granted to the spouse of a migrant worker, is of practical importance for the latter and, by ceases to be a 'qualified person', or again way of example, he lists a number of cases. Once a spouse in the case of the family member intending has acquired an 'independent or unconditional' right of residence (that is to say, not linked with a continuing to become a British citizen.

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32. The United Kingdom also submits that stances the spouse of a British citizen or of the social advantage within the meaning of á person 'present and settled' in the United the regulation is intended to cease when the Kingdom may apply for indefinite leave to person concerned loses his status as a remain, which may be available to the migrant worker or, in the case of benefits applicant even if his spouse is not engaged allocated to members of his family, when in active employment, and even if the the relationship between them and the migrant worker is broken off.

graph 8. Also, regarding the free movement of goods, see Case 103/84 Commission v Italy [1986] ECR 1759, paragraph 18, and Joined Cases 177/82 and 178/82 Van de Haar [1994] ECR 1797, paragraph 13; regarding the free movement of services, Case C-76/90 Säger [1991] ECR 1-4221, paragraph 12, and Case C-275/92 Schindler

21. 61 — See the Opinion of Advocate General Lenz in Meints 64 — Case 249/86 Commission v Germany [1989] ECR 1263, (point 51). paragraph 11.

matrimonial bond is dissolved. However, I and 16). N o t only that. In Echternach and do not see why it should be assumed that Moritz, national legislation which did not the extension of that benefit to the spouse allow the child of a migrant worker to of a Community citizen should constitute a obtain funds for studies after his father had case necessarily falling outside the scope of returned to his country of origin was held the principle of non-discrimination upheld to be discriminatory. 67 On the basis of by the Regulation. In particular, I see no those dicta of the Court, it must be reason to conclude that the advantage concluded, in my view, that to deprive claimed by M r Kaba could not — precisely spouses of migrant workers of an indefinite because it was granted without limitation, right to remain whenever some requirement once and for all, and was not conditional relating to that situation ceases to be upon enduring satisfaction of the legal fulfilled is not in conformity either with requirements — be regarded as a social the purpose or spirit of the Community advantage within the meaning of the Com- munity Regulation.

. . cards (for cut-price trans- port, issued to large families by a railway 67 — In that case, the Court relied on Article 12 of the Regulation, according to which 'the children of a national company), provided that the request had of a Member State who is or has been employed in the been made by the father before his death, territory of another Member State shall be admitted to that State's general education, apprenticeship and vocational the same must apply where the deceased training courses under the same conditions as nationals of that State, if such children are residing in its territory'. father was a migrant worker and a national Although based on a special provision which guarantees equal treatment for children remaining in the nost State of another Member State. It would be (or, as in Echternach and Moritz, for those who returned) contrary to the purpose and the spirit of of a Community migrant worker 'employed there', the Court's ruling in that case is significant in that its reasoning the Community rules on freedom of move- brings to light the clear affinities between Article 7(2) and Article 12 of the Regulation (it is clear that both are ment for workers to deprive the survivors concerned with social advantages: the interpretation of of such a benefit following the death of the Article 12 is based on the pattern of that of Article 7(2); see paragraphs 20 and 21). In conclusion, as regards social worker whilst granting the same benefit to advantages accorded to the family members of migrant workers, the principle is upheld that, in the interests of the survivors of a national' (paragraphs 15 better integration of those workers in the host State, it may be necessary to grant their children the right to a study grant, even if their parents have already returned to their country of origin (because in that case the certificate of secondary education obtained in the host State was not recognised in the State of origin, the student had to return to the host State in order to complete his higher 65 — Martínez Sala (paragraph 32, emphasis added). education). 66 — Paragraphs 30-36 and 40 respectively.

legislation on freedom of movement for corresponding to those granted to the workers. 68 worker himself: Mr Kaba, it says, contends on the other hand, on the basis of the principle of non-discrimination, for an indefinite right to remain, which is a wider right than the one conferred on his wife by Article 48. In order not to lose the status of 'qualified person', his wife would in fact in any event remain subject to the limits laid down by Community law (or by the EEA

Indeed, (document COM(98)394 Final, OJ 1998 C 344, p. 9, that argument can be easily countered, hereinafter 'the Proposal'). According to the sixth recital in the preamble to the Proposal, '. . . freedom of movement for first, by pointing out that what distin- workers means full and effective integration of migrant workers. . . and that of their families. . . '; see also Article 7 guishes the right sought by Mr Kaba from of the Proposal; according to the seventh recital, 'the the one enjoyed by his wife is not its integration of family members will not be complete without true de jure integration;.

. . they must therefore she continues to be a 'qualified person'. 70 be allowed to stay in the host Member State after a period of residence of three years, by which time they can Secondly, on the basis of the case-law of the reasonably be considered to be sufficiently integrated into Court, it is possible to regard as social the host State' (see also Articles 10(4) and 11 of the Proposal; emphasis added). advantages benefits which are granted to The changes to the Regulation suggested in the proposal the family members of a worker which are not based on new principles and aimsbut constitute the result, in particular, of judicial interpretation of the differ from those due to him as such.

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guarantees a minimum income to the and point 31). And that is so regardless of worker's ascendants (see footnote 56); the greater or lesser extent to which they there is no other explanation for the case- are equivalent to those granted directly and law of the Court which regards as 'social in his own right to the migrant worker advantages' a whole series of benefits concerned. attributed not so much to the worker as to his family members in their own right (see footnotes 56 and 58).

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76 — See also Martinez Sala, in which the Court ruled that 'the child-raising allowance in question here is an advantage granted inter alia to workers who work part-time. It is therefore a social advantage within the meaning of Article 7(2) of Regulation No 1612/68' (paragraph 26 — emphasis added). By using the expression inter aha the Court was referring to those who are not working; 74 — See Article 10(1) of the Regulation mid Article 4(4) of the national law. in fact, provided for the social advantage in Directive. question to he granted also to the children of unemployed 75 — Case 267/83 Dialla [1985] ECU 567, paragraph 2 1 . persons (see paragraph 9 of the judgment).

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4 3 . Normally, persons 'present and settled' in the United Kingdom within the meaning of paragraph 2 8 7 of the Immigration Rules possess British nationality. To justify his claim, M r Kaba relies on the case-law of the Court which held to be discriminatory a condition requiring completion of a specific period of residence in the territory of the Member State concerned, which is laid down for the grant of a social advantage to the workers of other Member States but is 4 1 . I am therefore of the opinion that, as n o t i m p o s e d on n a t i o n a l w o r k e r s . 77 regards the first question, an indefinite According to the United Kingdom and the right to remain granted to the spouse of a Commission, on the other hand, para- migrant worker constitutes a social advan- graphs 255 and 287 of the Immigration tage within the meaning of Article 7(2) of Rules are not discriminatory, since the two the Regulation. It does not matter here that situations treated differently are not simi- it is a right not expressly provided for by lar. In their view, the legal situation of a C o m m u n i t y law, differing from those spouse of a person who applies for indefi- already enjoyed by the worker in his own right, and granted by reason of the exis- tence of a particular link with the host 77 — See, for example, Hoeckx (paragraphs 23 and 24), Frascogna I (paragraph 24), Commission v Belgium (Case State. C-326/90, paragraph 1) and Meeusen (paragraph 23).

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44. The argument advanced by Mr Kaba is found to be discriminatory in that it based on the opposite view, namely that an applied to situations which, in the light of indefinite right to remain is to be granted all the applicable rules, could and should on a precisely equal basis to the spouse of a have been treated as similar. In this case, migrant worker and to the spouse of a however, we have different provisions, as Community national. On that view, the was necessary, specifically to govern differ- plaintiff in the main proceedings assumes ent cases. I agree with the United Kingdom that those subjective situations are compar- and the Commission in the view — I shall able and therefore deserving of equal clarify the point below — that the respec- treatment: the fact of applying different rules to him offends against the prohibition 78 — See, for example, Joined Cases C-133/93, C-300/93 and of treating differently according to their C-362/93 Crispoltoni [1994] ECR I-4863, paragraph 5 1 ; nationality people covered by national Case C-279/93 Schumacker ¡1995] ECR I-225, paragraph 30; Case C-80/94 Wielockx [1995) ECR I-2493, para-

31). measure to be adopted is described by the 79 — See, for example, Lair (paragraphs 40-44); Case C-111/91 law in one case as 'indefinite leave to Commission v Luxembourg [1993] ECR I-817, paragraphs 9 and 10; Case C-278/94 Commission v Belgium, para- remain' and in the other as 'permission to graph 29, in which the requirement of completion of secondary studies in the host State for the purpose of

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tive situations governed by paragraphs 255 ment, with whose position the Commission and 287 of the Immigration Rules are not has also associated itself. 81 As regards comparable. I shall concentrate on the view migrant nationals, it is Community law put forward by the United Kingdom Gov- itself which grants them a right to reside in ernment. There are, in its view, two the host State, subject to the continuing aspects — one is a question of substance fulfilment of certain conditions: connection and, the other, I will say, is procedural — with some economic activity, for example, which clearly show the objective difference or the status of student, provided that the between the two situations which, accord- person concerned has sufficient resources ing to Mr Kaba's lawyer, should in fact be not to be a burden on the social security governed by the same rules. system of the place of residence. 82 On the other hand, a person 'present and settled' in the United Kingdom falls into a category created by the national legislation and enjoys the unconditional right of residence which the domestic law guarantees him. The latter situation is in fact described as that of people living in their country of origin: nationals of the host State 'enjoy comprehensive freedom of action in their 2 — Rights of residence and comparison of home country, not a right to reside there for the legal situations of a person 'settled' in a specific purpose'. 83 As the Court has the United Kingdom and a Community made clear, 'admittedly... a national of a migrant worker residing there Member State enters and resides in the territory of that State by virtue of the rights attendant upon his nationality and not by

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particular Article 6(2)(e)) of the EEA Order his nationality', 'Articles 48 and 52 of the and paragraphs 256 and 257 of the Immi- Treaty do not prevent Member States from gration Rules — contained in the section applying to foreign spouses of their own entitled 'Settlement', together with para- nationals rules on entry and residence more graph 255 — provide for the case of those favourable than those provided for by who meet the conditions laid down by Community law'. 87 The link between indi- Regulation No 1251/70 and by Directive vidual Member States and their own 75/34, granting those persons the right to nationals is certainly closer than and, in obtain 'indefinite leave to remain' (the any event, different from that which each holder of which, by that very fact, becomes individual country of the Community, a person 'settled' in the United Kingdom). under the Treaty, has established with the In that way, national legislation entirely nationals of the other Member States. assimilates the permission to remain inde- Hence, as far as rights of entry and finitely provided for by paragraph 255 to residence are concerned, differing treat- the 'right to remain' provided for by ment for the two categories of nationals Community law (and reflected in para- does not necessarily involve unlawful dis- graphs 256 and 257 of the Immigration crimination. Rules) and distinguishes the various situa- tions constituting 'settlement' in the United Kingdom under the immigration laws from the Ordinary' right of residence of a 'qualified person' within the meaning of the EEA Order. 49. The judgment in Reed can, if examined closely, be reconciled with the statements of the Court in Singh and with the foregoing reconstruction. Mr Kaba points out that, in Reed, the Court found Netherlands legisla- tion to involve discrimination on grounds of nationality in not granting a right of residence to the unmarried companion of a Community migrant worker residing in the

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Netherlands nationals. Thus, the Court did far from constituting discrimination (albeit not expressly consider the arguments indirect, it might be said) based on nation- whereby the Netherlands Government, in ality, the longer period of prior residence response to Mrs Reed's complaint, drew required by paragraph 255 clearly derives attention to the substantial difference from the fact that, as regards the right of between the rights of residence of its own residence, the case of a migrant worker was nationals and those of Community migrant to be appraised and regulated, as it in fact-

As in Reed, in Martinez Sala the Court clearly considered to be analogous the legal circumstances of residence of nationals of the host State and those of migrant Community citizens living there (whatever the basis of their residence) in that 88 — See the Opinion of Advocate General Lenz (points A-1 and the national provision i n question did not draw a A-6) and the second preliminary question (paragraph 7 of distinction based on the 'intensity' of the rights of the judgment). residence enjoyed respectively by the two categories (see 89 — With the exception of removal measures — which, more- paragraphs 49 and 6.1). over, are unconnected with the issues in these proceed- 92 ings — which may he adopted only in relation to foreign — 'Unless it ts objectively justified and proportionate to its nationals. ann, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically hable to affect 90 — In this case too, subject to the exception of expulsion migrant workers more than national workers.

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under the EEA Order (and the Directive), a to remain indefinitely in order to join a foreign national 'settled' in the United spouse who is already a 'settled' person. It Kingdom has established close links with was not, on the other hand, decided — and the host country, having normally spent a that choice does not seem to me to be continuous period of four years there. A unreasonable — that after only 12 months fortiori, a British national, as such, enjoys after entry into the United Kingdom a in his own country a permanent and migrant worker had established himself in unconditional right of residence. 93 More- the host country to such an extent that a over, even a Community migrant worker, spouse wishing to follow him should be who, in the view of the national legislature, given the same treatment as that accorded has enduring links with the United King- to the spouse of a person already settled in dom, is entitled to apply for and obtain the country. Community law too, it should 'settlement'. Paragraph 255 of the Immi- be remembered, makes the right of resi- gration Rules in fact presupposes that a dence for an indefinite period conditional person who has remained in the country for upon attainment of a sufficient degree of four years is established there. That clari- integration into the host State, which is fies the reason for the reduction, for the presumed to exist only after completion of purposes of applications to reside for an an adequate period of continuous resi- indefinite period, of the period of prior dence, together with fulfilment of other residence laid down for a person applying requirements in certain cases. 9 4 95

The migrant worker, w h o are nationals of third countries, are Immigration Rules envisage several waiting periods before granted the right to continue to reside 'in the Member State there is any possibility of indefinite leave to remain being of residence if the marriage is dissolved, on condition that granted, but the conditions imposed by paragraph 255 are they have lived in that country [with spouse] for a period Ín any event advantageous to Community migrant work- of three consecutive years' (new Article 10(4) of the ers: they are more favourable for nationals of other regulation — emphasis added; see also the eighth recital Member States (and their family members) than those in the preamble to the proposal), and the Proposal for a contained in the Community legislation.

. . and that they have health Kingdom. The Community legislature itself, aware of the insurance'. narrowness of the cases provided for by Regulation The Proposal also provides for the case of the spouse of a Ñ o 1251/70 and Directive 75/34, considered it necessary migrant worker w h o works; for such a person the new to make clear that the rules laid down therein 'shall not Article 11 of the Regulation will grant a permanent right affect any provisions laid down by law, regulation or of residence in the host State 'if the marriage is dissolved, administrative action of any Member State wnich would on condition that [the applicant] has lived in the territory be more favourable to nationals of other Member States' [with spouse] for a period of at least five consecutive years' (see, in both cases, Article 8(1); emphasis added). (emphasis added).

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3 — Effects of the entry into force of the difficult to apply to the rights of residence Treaty on European Union of citizens of the European Union. 9 7

96 — Article 8(1 ) of the EC Treaty established citizenship of the Union, stating that 'Ľvery person holding the nationality of a Member State shall he a citizen of the Union'. Under 9 7 — S e e the Opinion of Advocate General Ruiz-Jarabo Colo- Article 8a( 1 ) of the HC Treaty, 'Hverv citizen of the Union mer in Sbingara and Radiom (paragraph V I ) and, above shall have the right to move and reside freely within the all, that of Advocate Ceneral Cosmas m Wijscnbeek (cited territory of the Member States, subject to the limitations in footnote 36; points 78-104). laid down in this Treaty and by the measures adopted to give it effect'. 98 — See Martinez Sala, paragraph 60, and Wijsenbeek. para­ graph 43.

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99 — See point 23 of my Opinion. 100 — See my Opinion in Martínez Sala, paragraph 20. 101 — In the Treaty of Amsterdam care was taken to make it clear that citizenship of the Union does not supersede national citizenship, which, therefore, retains its own special features (including those deriving from public international law): at the close of Article 8(1) of the EC 54. Let me repeat what I stated in other Treaty, the words were added 'Citizenship of the Union proceedings regarding the certain and shall complement and not replace national citizenship'.

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limitation. However, the provision which ment, 108 the intention being to 'develop' enunciates that right nevertheless sur- rounds the exercise of it by specifically defined limitations, which must be observed whenever it is sought — as, in my opinion, is certainly possible — to rely on its direct effect. 104 They do, it is true, have an impact. But they have been imposed by the primary source of law of 105 — Originally, Article 8a(2) provided that the Council was to

106 — Session of the European Council, Dublin of 25 and 102—The concept of a person 'present and settled' in the 26 June 1990, Annex I on political union, Conclusions ol United Kingdom, when not applied, ns it most often the lhe Sessions of the European Council ( 1975-1990), p . 388 case, to a British citizen, is treated by national law as (see U.U_ Jessurun d'Ohveira, European Citizenship: its being equivalent to that of a British citizen, except for the Meaning, its Potential, in J. Monar-W. Ungerer-W. Wes- possibility of expulsion from the territory of the State (sec sels, The Maastricht Treaty on European Union, Hur- point 14; see also the considerations in footnote 80). That onean Inlcrumversity Pressi Brussels, 1993, pp. 81 and solution is justified by the importance attached to 82, and published also in R. Dehousse, Europe after establishment in the country, and therefore the link with Maastricht: an ever closer Vinoni, Beck, Monaco, 1994, the country, of the persons concerned, and docs not, p. 126; hereinafter, references will be to the page either, run counter to any provision of Community law: it numbering of the first version). seems to me obvious that Mr Kaba cannot criticise it as being discriminatory. 107 — S e s s i o n of the European Council Runic, 13 and 14 December 1990, on. cit., p. 416 (see Jessurun 103 — See the Opinion of Advocate General Cosmas in WIJSEN- d'Ohveira, op. cit., p. 82).

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following words: 'subject to the limitations Court has continued to give rulings on and conditions laid down in this Treaty and those directives in preliminary-ruling pro- by the measures adopted to give it effect'. ceedings under Article 177 of the EC In that way the provision in question, it Treaty (now Article 234 EC) without mak- must be concluded, refers to the pre- ing the slightest reference to the Treaty on existing provisions, such as those of the European Union, thereby indicating that it EC Treaty itself (see Articles 48 to 66), as does not consider that, when it came into well as the provisions of, inter alia, the force, they had become obsolete. 111 Regulation, the Directive and the residence

sion under Article 169 of the EC Treaty (now Article 226 EC). 1 1 2Similarly, Arti- cles 48 to 66 of EC Treaty (and the directives and regulations implementing them) would have been amended conse- 56. If Article 8a(1) had in fact created an quentially; after all, the Treaty on Eur- 'absolute' right of residence identical to opean Union was based on Article 49 of the EC Treaty (now, after amendment, Arti- cle 40 EC) which places an obligation on 109 — Meeting of the European Council in Rome, 13 and the Council to adopt the measures neces- 14 December 1990, loc. cit.

Shingara and Radiom, Pereira Roque, and Calfa. 110 — That is the less restrictive wording suggested for Article 112 — See the judgment in Case C-96/95 Commission v X 4 in the Opinion of the Commission of the European Germany [1997] ECR 1-1653, dealing with an applica- Communities of 21 October 1990 on the proposal for tion of 24 March 1995, which shows that the Commis- amendment of the Treaty establishing the European sion itself considers that Directives 90/364 and 90/365 Economic Community with a view to political union, in (found to have been infringed by the Federal Republic of the EC Bulletin, Supplement N o 2, 1991, p. 7 1 , at p. 8 1 .

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sary progressively to facilitate the free and conditional upon the availability of movement of workers, as defined in Arti- health insurance and sufficient resources, if, cle 48. And with regard to those EC Treaty in that respect, it was destined to be provisions as well — and also, for example, superseded three days later. 1 1 4 Moreover, the Regulation and the Directive — the certain recent proposals — including the case-law of the Court has not ceased to proposal mentioned in footnote 68 — con- develop without there being the slightest taining amendments to the Regulation and hint that, for example, the judgment in to Directives 68/360 and 73/148 do not rely Antonissen — which upheld the right of the on Article 8a(1) as the source of a 'new' Member States to impose reasonable limits right of residence; instead, they reflect, for (in that case, six months) on the period of example, the Court's decisions in Levin 115 residence of a person seeking employment and Antoiiissen, recognising their present in a Member State other than that of his validity. 116 As well as the Commission (the origin (see point 22) — is to be regarded as author of those proposals), the European superseded; once again, I believe, this Parliament and the Economic and Social shows that Article 8a(1) does not, in itself, Committee have also demonstrated that constitute a considerable qualitative step they do not consider Directives 68/360 and forward.

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73/148 to have been repealed: in the course the right of residence of migrant Commu- of the legislative procedure for their nity nationals also emerges from the Wes- amendment, they did not raise objections tendorp Report of 1995, 120 the Veil Report to the retention of a conditional right of of 1997, 121 and a series of recent Commis- residence, as expressed in the provisions for sion measures. 1 22123 the implementation of Articles 48 to 66 of the EC Treaty. 117

1 9 9 8 , in p a r t i c u l a r C h a p t e r I (see a l s o h t t p : / / the Union have not been given general europa.eu.int/comm/dgl5/en/people/hlp/summ.htm); that rights of freedom of movement and resi- report makes a further 80 recommendations to remedy the problems noted. dence: the exercise of these rights is subject 122 — Second Report from the Commission on Citizenship of to the "limits and conditions" laid down by the Union, of 2 7 May 1997, COM(97) 230 final, according to which the right of residence referred to in Community law.

Communication from the Commission to the European Council, presented each category of persons is subject. . . . In on 4 June 1997 by M r M o n t i , a Member of the Commission, CSE(97) 1 final. practice, therefore, the Treaty has made no Commission Communication to the European Parliament improvement at all on what went on and the Council on the follow-up to the recommenda- tions of the High-Level Panel [the Veil Group] of the Free

. . seems indispensable to avoid p. 58), and the Opinion of the Economic and Social migration motivated only by economic considerations, Committee concerning, inter alia, the proposal (see because in particular the European social security systems footnote 68) and the second proposal (OJ 1999 C 169, have not been harmonised' (Adonnino Report presented p. 24, cited in footnote 94); in the latter, it is noted that to the European Council, Brussels, 29 and 30 March the objective has not yet been achieved of 'full exercise of 1985, EC Bulletin, supplement N o 7, 1985, p. 9, in the right of Union citizens to move and reside freely particular at p. 14). Requiring as they do proof of the throughout the EU' (point 2.3.1). availability or sufficient means of support and health 118 — Report on the Operation of the Treaty on European insurance, the residence directives — the last of which Untoti, of 10 May 1995, SEC(95) 731 final — http:// was adopted at the end of 1993 — illustrate that europa, eu. int/agenda/igc-home/eu-doc/commissn/ preoccupation. That view has been expressed by, for reports.html. example, R. Adam, Prime riflessioni sulla cittadinanza dell'Unione, in Riv. dir. int., 1992, p. 622, at p. 639. 119 — See part I, section I-A.1, points 8 to 10.

60. The Court of First Instance of the national courts 126 incline towards a read- European Communities, 124 the prevailing ing of Article 8a(1) of the EC Treaty which academic view, 125 and certain decisions of does not overlook the latter part thereof. All this does not change the fact that Article 8a, even as worded at present, apart from its obvious political importance, 127 fulfils an important specialised legal func- tion. Paragraph 2 of that provision has without doubt provided a specific legal basis for progress with future action by the Community to facilitate the free movement of 'non-active' persons, obviating the need 124 —Case T-66/95 Kuchlenz-Winter v Commission [1997] for recourse to Article 235 of the EC Treaty ECR II-637, paragraphs 44-48. 125 — With the exception of isolated voices (see E.A_ Marias, (see footnote 113). op. cit.; E Menegazzi Munari, Cittadinanza europea: una promessa da mantenere, Giappichelli, Turin, 1996, in particular p. 177, where a 'non-selective' reading of the provision is justified on humanitarian grounds, to the effect that it is 'not permissible to exclude less capable individuals from the enjoyment of such freedom merely because of their already precarious existence'), the view I have expressed is shared (see P. Alston-J. H.H_ Weiler, An 'Ever Closer Onion' in Need of a Human Rights Policy: the European Union and Human Rights, Harvard Jean Monnet Working Paper No 1/99, in http://www.law. harvard.edu/Programs/JeanMonnet/papers/ 99/990101.html, in particular part 14-A-1; R. Bauböck, Citizenship and National Identities in the European Union, Harvard Jean Monnet Working Paper No 4/97, in http://www.law.harvard.edu/Programs/JeanMonnet/ papers/97/97-04-.html, particularly pan 3; P. Dollat, Libre Circulation des Personnes et Citoyenneté Europé-

net Working Paper No 6/97, in http://www.law.harvard. 17 August 1995, Case No FC3 95/6339/D, Phull, not edu/Programs/JeanMonnet/papers/97/97-06-.html, in published (but cited in detail by the Court of Appeal in particular part IV-D; J.Shaw, European Citizenship: the Vitale II, see below, in which importance is attached to IGC and beyond, Elo?, 1997, No 3, in http://eiop.or.at/ the fact that House of Lords refused leave to appeal and eiop/texte/1997-003a.htm, in particular part II; C. Vin- did not even seek a reference under Article 177 of the EC cenzi, op. cit., p. 273: J.H_H_ Weiler, The selling of Treaty; together with Vitale and Vitale II, Phull is also Europe: the discourse of European Citizenship in the IGC commented on by D. O'Keefe-M. Horspool, European 1996, Harvard Jean Monnet Working Paper No 3/96, in Citizenship and the Free Movement of Persons, in The http://www.law.harvard.edu/Programs/JeanMonnet/ Irish Jurist, vol. XXXI, Sweet and Maxwell, 1996, papers/96/9603.html, in particular the section entitled p. 145); Court of Appeal of England and Wales, judgment 'Citizenship and Authority in the TEU' (by the same of 19 January 1996, Vitale II, in C.M_L_ Reports, 1996, author, see also Les Droits des Citoyens Européens, in vol. 2, p. 587. R.M_U_E_, 1996, No 3, p. 35, in the first part of which - some of the views set out in the paper cited are 127 — In Martinez Sala, I observed that 'The novelty [of expressed); J. Wouters, European Citizenship and the Article 8a] does not lie in its having embodied free Case-Law of the Court of Justice of the European movement of persons directly in the Treaty.

. .' (point 18).

dence of citizens of the Union residing in a to present a valid identity card or pass- Member State other that of their origin are port, 1 2 9 and, as regards residence, obtain a now similar to those granted by the Mem- residence document, simply by presenting ber States to their own nationals, or, in this the documents required by Article 4(3) of case, by the United Kingdom to persons the Directive (see footnote 3). Those form- 'settled' there. 128 alities have been reduced to a minimum in order to remove the restrictions on the movement and residence of migrant work- ers and their families (see Article 1 of the Directive) and are designed to guarantee almost immediate admission. Once those formalities have been fulfilled, paragraph 255 of the Immigration Rules requires only, as a condition for securing the right to remain indefinitely, residence in national territory for four years. On the other hand, an applicant under paragraph 287 of the Immigration Rules must have been 'admit- 4 — Comparison of the conditions of ted' to the United Kingdom in accordance admission to the United Kingdom laid with the conditions laid down by para- down by paragraphs 255 and 287 of the graph 281 of the Immigration Rules (see Immigration Rules point 9). Under the latter provision, it will be recalled, the spouse of a person present and settled in the United Kingdom who intends to 'settle' there has no right of entry. For that purpose he must obtain an appropriate leave to enter, after satisfying a number of conditions intended, in particu- lar, to ensure that the marriage is genuine and has not been contracted with the sole aim of securing 'settlement' in the United 62. In order to demonstrate the difference Kingdom. The United Kingdom adminis- between the cases covered by paragraphs tration checks whether those conditions are 255 and 287 of the Immigration Rules, the fulfilled before the applicant can be admit- United Kingdom also referred, as I noted ted to the United Kingdom; 130 and not, earlier, to procedural provisions. First, the within a few moments, upon entering the spouse of a Community migrant worker Member State, as in the case of those who has a genuine right to enter and remain in rely on the freedom of movement guaran- the Member State if the worker is engaged in (or intends to take up) an economic activity. In order to enjoy freedom of movement he is required only, upon entry,

131 — Regarding the conditions to be satisfied for entry and residence in the host State, I would point out that Ms Michonncau, who was admitted to the United Kingdom as a migrant worker (see poult 15), did not have to prove that she had sufficient economic resources or health insurance — in compliance with the provisions of Directive 90/364 (see point 24) and Article 6(2)(f) of the EEA Order, containing a definition of a person who is a 'self-sufficient person' (see footnote 46) — conditions which are not entirely different (at least as regards the rationale which inspired them) from those laid down in paragraph 281 (v) and (vi) (see point 9). 132 — According to the United Kingdom case-law cited by the referring court, the conditions laid down in paragraph 281 of the Immigration Rules cannot be assimilated to those laid down for the entry into the United Kingdom of Community nationals exercising Treaty rights (sec, in particular, Boukssid; see, however, my observations at the end of the foregoing footnote). 133 — Mr Kaba observed that the procedure for verifying satisfaction of the conditions imposed by paragraph 281 of the Immigration Rules is so long and, apparently, laborious that, at times, spouses wishing to join British citizens residing in the United Kingdom prefer to rely on the rights conferred on them by the Treatv (thanks to which entry is immediate) in the event of the British citizen being able to enjoy the free movement recognised as available to him by the judgment in Singh, which is now supplemented by the Wi/senheek decision (sec 64. In conclusion, I do not consider that the footnote 36). The facts of Boukssid confirm this . Ms Boukssid, a student and a Moroccan citizen residing in difference of treatment of the spouse of a the United Kingdom under a residence document that had expired, married in November 1993 Mr Stollery, a British Community migrant worker as compared citizen. In September 1994 the couple went to the with the spouse of a person 'settled' in the Netherlands where the husband had found work as a employee. Subsequently, Ms Boukssid submitted an United Kingdom within the meaning of the application to settle in the United Kingdom, to the British Consulate in Amsterdam, where officials explained to her United Kingdom immigration legislation that, if she had insisted on obtaining leave to enter under constitutes discrimination on grounds of UK immigration law, she would have to have spent a period of time outside the United Kingdom, separate nationality. from her husband (who in the meantime, of course, had gone back to his own country), whilst the administration proceeded with the routine enquiries. If, on the contrary, it was explained to her, she had relied on the rights available to her under Community law, she could have 134 — Even if the point may be of no relevance to legal analysis entered the United Kingdom without any delay. Ms of the provisions with which the order for reference is Boukssid chose to apply as 'non-EC dependant of a concerned, I would note that, after submission of the European Community national' (loc. cit., p. 277). application for indefinite leave to remain, Mr Kaba and Ms Michonneau divorced.