C-109/01

I — Introduction States admit immigrants only after an assessment of the individual case. In that connection they are entitled to apply strict criteria and also do so. None the less, Article 63 EC affords the Community legislature the possibility of determining 1. In this case the Immigration Appeal considerable parts of immigration legis- Tribunal has raised questions concerning lation at Community level, though it has freedom of movement for persons. More made only very limited use of this possibil- specifically, the referring tribunal's ques- ity. tions concern the rights which may be conferred by Community law on a Com- munity national who is married to a national of a non-Member State and leaves her country of origin to settle with her spouse for a limited period in another Member State and work there. On return to the Member State of origin can that Community national claim entitlement to the right conferred by Community law on migrant workers, namely the right enabling 3. In practice Member States' competence her spouse to settle with her in the Member is primarily of significance in relation to the State of origin? treatment of nationals of non-Member countries for Member State nationals are to a large extent exempt from national immigration rules owing to the right con- ferred on them by Community law to remain in a Member State of which they are not nationals. That brings me to the 2. This case originates in the juxtaposition second area of competence, that of freedom of two different areas of competence. The of movement for persons within the Euro- first concerns immigration. As Community pean Union. In this area the EC Treaty law currently stands, immigration legis- directly confers rights on nationals of the lation is a matter for the Member States. Member States. As a result of secondary Community law allows the Member States Community legislation and the case-law of the freedom to shape their legislation as the Court, their rights to move and to they see fit. As a general rule the Member reside have been almost totally harmonised. Thus, that competence is exercised at the level of the European Union. As I shall 1 — Original language: Dutch. explain in greater detail further on in my I-9610

5. Such is the background to the present case. Mr Akrich, the applicant in the main proceedings, is the national of a non- Member State and his spouse is a United Kingdom national. In view of his past Mr Akrich was refused entry to the United Kingdom on the basis of national compet- ence in immigration matters. Since Com- munity law makes the obtaining by Mr Akrich of leave to remain subject to less 4. Alongside the nationals of the Member stringent requirements than national States who settle in another Member State, United Kingdom legislation, the persons the family members of those nationals of concerned are consequently relying on the Member States also enjoy the right to Community law. What is more, they arc remain even if they themselves are not only relying, as is apparent from the nationals of a non-Member country. For facts of the main proceedings, on Commu- under Community law a national of a nity law but are also remaining for a certain Member State enjoys not only an individual period in Ireland in order to ensure that right to remain but also the right to be Community law is applicable to them and accompanied by the spouse (and other not United Kingdom immigration law. family members). Secondary Community law conceives the right of accompaniment of the spouse in fact as a right pertaining to that spouse. As a result the spouse of a migrant national of the Union is also to a large extent exempt from the entry require- ments under national immigration law. Even if the migrant national returns to his 6. I use these facts from the main proceed- own country, it appears from the judgment ings in order to illustrate the following in Singh2 that the spouse from a non- point. In itself it is logical from the point of Member State may continue to enjoy free- view of freedom of movement for persons dom of movement for persons within the for the spouse of the migrant citizen of the European Union. Under that judgment the Union to be exempt from national compet- national of a Member State who has been ence in matters of immigration. His claim employed in another Member State retains under Community law is primarily intended to remove obstacles to the exer- cise of the right in favour of the EU citizen 2 — Case C-370/90 Singh [1992] LCR I-4265. himself to reside in another Member State.

9. In this case the persons concerned are 7. However, this logic applies primarily to availing themselves of the extensive possi- non-Member country spouses who have bilities afforded by EC law in regard to already been admitted to the territory of a freedom of movement for persons within Member State and are thus legally within the European Union in the course of which the territory of the European Union. It is they are relying, inter alia, on the above- less self-evident also to grant a right of mentioned judgment in Singh. They are residence under Community law to spouses thus seeking to circumvent the immigration from non-Member States who have not yet legislation which the United Kingdom, on been so admitted or who, as in the case of the basis of its national competence, is Mr Akrich, are within the territory of the entitled to establish and to apply. European Union without leave to remain. The spouse's right to remain is quite a different matter from admission to the territory of the European Union. That is well illustrated by the present case in which entry to the European Union was earlier refused by a Member State on the basis of a 10. Thus I come to the dilemma to which competence pertaining to that Member the Court must find a solution. Must the State. Court's extensive case-law, as expressed, inter alia, in the Singh judgment, entail the consequence that national immigration legislation must always remain inapplicable where spouses from outside the European Union who are married to Community nationals, were not, at the time when they were entitled to derive rights from Com- munity law, legally within the territory of 8. Thus, in the present case Community the European Union? That dilemma is all law is being invoked in a matter essentially the more pressing since in regard to free- involving national competence in the area dom of movement for persons EC law does of immigration. For the nub of this case is not verify the nature and duration of the not that a Community worker, exercising a marriage whilst that test is of considerable freedom conferred on her by the EC Treaty, significance under national immigration wishes to be accompanied by her spouse law in order to prevent marriages of but that a national of a non-Member State convenience.

(a) his spouse and their descendants who are under the age of 21 years or arc dependants; 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

3 — OJ English Special Edition 1968 (II), p. 475.

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13. I would also refer to an older but still Rules'). A person who is not a British applicable directive which contains further citizen may not in principle enter or stay in provisions concerning freedom of move- the United Kingdom unless he is granted ment for workers. Council Directive permission to do so. Such permission is 64/221/EEC of 25 February 1964 on the known as 'leave to enter' and 'leave to co-ordination of special measures concern- remain' respectively. The Immigration ing the movement and residence of foreign Rules further provide, inter alia, that nationals which are justified on grounds of nationals of countries mentioned in public policy, public security or public Annex I to the Immigration Rules, includ- health 4 lays down provisions concerning, ing Morocco, must obtain an entry clear- inter alia, the entry and expulsion of ance prior to arrival in the United King- persons on grounds of public policy and dom. public security (and also public health). Refusal of entry and expulsion of persons are not always permitted. Article 3 of the Directive provides:

'1. Measures taken on grounds of public policy or of public security shall be If a person is required to hold entry clear- based exclusively on the personal con- ance at the time when he seeks entry to the duct of the individual concerned. United Kingdom but is not in possession of one, the Immigration Rules provide that that person is to be refused entry. None the less, in certain defined cases a person who holds an entry clearance may still be 2. Previous criminal convictions shall not refused leave to enter. in themselves constitute grounds for the taking of such measures....'

— the parties to the marriage have met; and

17. The Secretary of State may allow persons to be admitted to the United Kingdom or to remain, even if they do not qualify under the specific requirements of the Immigration Rules. — each of the parties intends to live permanently with the other as his oi- lier spouse and the marriage is subsist- ing; and

18. Under section 3(5) and section 3(6) of the Immigration Act 1971 a person who is — there will be adequate accommodation not a British citizen may be liable to for the parties and any dependants deportation, in particular, if he is convicted without recourse to public funds in of an offence punishable by imprisonment accommodation which they own or and a criminal court has recommended his occupy exclusively; and deportation. After signature of a deport-

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ation order by the Secretary of State the clearance, even if he might otherwise satisfy person concerned must leave the United the requirements for entry. Such a person Kingdom, may not return to the United must secure revocation of his deportation Kingdom and any leave to enter or leave to order before he can be granted entry clear- remain granted to him is invalidated. ance or leave to enter the United Kingdom. That is not altered by the fact that such person may possess another capacity on the basis of which he may be eligible to be admitted to the United Kingdom.

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III — Facts and circumstances not appeal against his conviction. On 1 October 1990 a deportation order signed by the Secretary of State was issued. On 2 January 1991 Mr Akrich was deported to Algiers. In 1992 he was arrested in the United Kingdom and on 30 June 1992 was 22. In this part of my Opinion I will again deported to Algiers. reproduce the facts which have been estab­ lished in the main proceedings and have not been disputed before the Court.

26. On 8 June 1996 he married Halina Jażdżewska. I will subsequently refer to her in this Opinion as Mis Akrich. Shortly 23. Hacene Akrich is a Moroccan citizen thereafter, on 29 August 1996, he applied born on 27 March 1967. His wife Halina for leave to remain as the spouse of a Jażdżewska is a British citizen born on British citizen. On 14 April 1997 Mr 9 June 1963. Akrich also lodged a request for asylum.

24. On 14 June 1988 Mr Akrich was 27. On 1 June 1997 Mrs Akrich moved to refused entry to the United Kingdom. On Ireland with the intention that her husband 12 February 1989 he entered the United should join her there. A short time later, at Kingdom as a tourist on a one month's the end of August 1997, Mr Akrich in fact tourist visa. On 20 July 1989 his appli­ arrived in Dublin. At his own request he cation for leave to remain as a student was was removed there by the United Kingdom refused and his subsequent appeal was authorities. dismissed on 10 August 1990.

28. Later Mrs Akrich gave the following 25. On 22 June 1990 he was found guilty reasons for staying in Ireland. She stated of attempted theft and possession of a that her spouse was in a reception centre in stolen identity document. He was sen­ the United Kingdom. If she was resident in tenced to a fine of GBP 250 or one day's Ireland he would not be deported to prison for each offence, the sentences to Algeria. In that case he was able to come run concurrently. The sentencing court to Ireland. At the same time she declared recommended that he be deported. He did that it was not her intention to remain in

29. During her stay in Ireland Mrs Akrich 32. On 21 September 1998 the Secretary of was employed by a bank. It appears from State refused to revoke the deportation the order for reference that the employment order. He also instructed the Entry Clear- relationship was of more than six months' ance Officer to refuse the entry clearance duration. applied for. On 29 September 1998 the Entry Clearance Officer refused entry clear- ance in accordance with the Secretary of State's instruction. The Secretary of State took the view that the move to Ireland by Mr and Mrs Akrich was no more than a 30. It was likewise established and not temporary absence deliberately designed to contested that Mr Akrich was also secure for Mr Akrich a right of residence on employed during his stay in Ireland. As to his return to the United Kingdom and thus circumstances on any return to the United to circumvent United Kingdom legislation. Kingdom, the married couple could count Accordingly, Mrs Akrich could not be on accommodation (made available by the regarded as a worker who had been brother of Mrs Akrich), Mrs Akrich had an exercising Treaty rights in another Member actual prospect of employment (which was State. offered to her in the United Kingdom as from August 1998) and the couple could show that they had more than IEP 4 000 in cash.

33. On 20 October 1998 Mr Akrich appealed against those decisions to an IV — Procedure Adjudicator. On 2 November 1999 the Adjudicator found as a fact that there had been an effective exercise by Mrs Akrich of Community rights which had not been 31. On 23 January 1998 Mr Akrich sought tainted by the intentions of Mr Akrich revocation of the still current deportation and his wife. He found as a matter of law

'Where a national of a Member State is (a) to revoke any preliminary obstacle married to a third country national who to the entry of the non-national does not qualify under national legislation spouse into that Member State (on to enter or reside in that Member State, and the facts of this case an outstanding moves to another Member State with the deportation order); and

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(b) to accord the non-national spouse case-law in regard to freedom of movement a right of entry into its territory?' for persons. Those two sections together delimit the area within which the dilemma outlined in the introduction must be resolved.

36. In these proceedings written observa- tions were submitted to the Court by the applicant in the main proceedings, the United Kingdom and Greek Governments and by the Commission. The oral hearing took place on 5 November 2002. B — Migration law

1. Competence

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policy has been underlined and the Com- non-Member States in the context of a mission has already outlined its possible marriage to a United Kingdom national. 10 features in a communication to the Council The marriage must have a 'serious' char- and the Parliament. 9 Full harmonisation acter. Entry may also be refused — I am will not occur. Article 63 provides for disregarding the exceptions — if there is a harmonisation only in certain areas, includ- current deportation order against that per- ing 'conditions of entry and residence, and son. standards on procedures for the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunion' (Article 63(3)(a) EC).

41. In itself the United Kingdom may lay down such requirements provided of course that Article 8 ECHR, which protects family and private life, is observed. Exercise of that competence may conflict with Com- munity law in regard to freedom of move- 39. In the Commission's view harmonised ment for persons only in a situation where rules are necessary because the pressure the person concerned may rely on EC law. from immigration will persist and because a more open and transparent migration policy will benefit not only immigrants and the countries of origin but also the EU itself. However, in the Commission's view and in accordance with Article 63 EC, the management of migratory flows remains 2. Substantive aspects and trends within the competence of national govern- ments.

after a prior individual assessment of his may be adopted irrespective of the exist- case. The requirements laid down by the ence of a risk to public order. Member States in that regard are becoming ever more stringent. Marriage is now one of the few bases on which a national of a non-Member State may obtain entry to a Member State. The requirements laid down in connection with the marriage are also 44. In certain Member States (Germany, becoming more and more stringent. 11 Belgium, Spain, France, Portugal and the United Kingdom) there is a prior test.

selves. 12 43. At the time when a national of a non-Member State applies for entry into a Member State a Member State may under its legislation make entry subject to certain criteria. A partner from outside the Euro- pean Union is admitted only after a review 45. In addition to review of the marriage of the nature and duration of the marriage. the Member States further apply a number That review is to counter the phenomenon of marriages of convenience between EU 12 — Council Resolution of 4 December 1997 on measures to be nationals and nationals of non-Member adopted on the combating of marriages of convenience States already staying in a Member State. (OJ 1997 C 382, p. 1). So far as is relevant, Paragraph 2 of the resolution provides as follows: Factors which may Where the competent authorities of the provide grounds for believing that a marriage is one of convenience are in particular: Member States establish the existence of a — the fact that matrimonial cohabitation is not main- marriage of convenience leave to settle or tained, — the lack of an appropriate contribution to the to remain in connection with the marriage responsibilities arising from the marriage, — the spouses have never met before their marriage, of the national of the non-Member State — the spouses are inconsistent about their respective may as a general rule be withdrawn, personal details (name, address, nationality and job), about the circumstances of their first meeting, or revoked or not extended. Those measures about other important personal information concern-

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of criteria. In that connection it makes no States must none the less take account of difference whether the persons concerned the specific circumstances surrounding the are married or unmarried. In most Member person concerned. That is connected with States interruption of residence in a the fact that an exclusion order can have Member State, 13 fraud together with a risk very serious consequences for the persons to public policy and security constitute concerned, especially if the person con- grounds for withdrawing or refusing to cerned has very close ties with his family extend leave to remain or for removing a and other close persons. The limits are person from the territory of a Member determined by reference to the ECHR and State. In certain Member States a measure in particular Article 8 thereof. In the removing a person from national territory assessment of the refusal to issue or to may be ordered by way of penalty or as a extend leave to remain or removal from the penalty in addition to deprivation of lib- territory the competent national authority erty. If a national of a non-Member State must weigh the interests of the State against has provided false or misleading infor- the interests of the person concerned and mation, has used false or forged documents his dependants. A number of criteria have or has otherwise engaged in fraud or had been laid down in the case-law of the recourse to unlawful means in all Member European Court of Human Rights, such States his leave to remain may be with- as: 1 4 drawn or extension of leave refused. All the Member States make legislative provision for the removal or deportation of nationals of non-Member States where there is a risk to public policy or security. In Austria, Denmark and Germany deportation on those grounds is mandatory. Various coun- — The degree of social and cultural inte- tries also make provision allowing a gration in the host country. deportation order to be issued on commis- sion of a certain kind of offence (drugs offence, Denmark) or on imposition of a penalty of a certain degree of gravity (a sentence of imprisonment of more than one year, Finland). — Ties with relatives living in the host country.

C — Freedom of movement for persons — Whether there is a risk that the person concerned may be ill-treated if he returns to his country of origin. 1. Competence

47. As I have said, for nationals of non- Member States there are only limited 49. The European Community's compet- opportunities for entering the territory of ences in regard to the internal freedom of the E u r o p e a n Union. Conversely, the movement for persons are practically total. grounds for removing a person from the territory of a Member State under the legislation of the Member States are at this 15 — Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family moment extensive. Moreover, the national members to move and reside freely within the territory of the Member States (OJ 2001 C 270 E, p. 150). See also the laws of the various Member States are amended proposal for a Council Directive on the right to steadily becoming more restrictive and are family reunification (cited at footnote 8 above). These proposals follow on from the European Council held in swift to align themselves with one another. Tampere on 15 and 16 October 1999.

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52. The rules applicable to economically active persons — in the context of the present case I shall confine myself to free- dom of movement for workers — are laid down, inter alia, in Article 39 et seq. EC, Regulation No 1612/68 and Directives 64/221 and 68/360. 1 8Article 39 EC affords to the national of a Member State 50. This competence was assigned to the of the European Union the right to move European Community in order to ensure within the European Union and to reside that European integration might in fact freely on the territory of another Member assume concrete form, in the first place by State, in both cases with a view to the means of the creation of an internal market pursuit of employment. Secondary legis- without internal borders. In that regard I lation adds to both these rights, which are would quote Article 14(2) EC according to guaranteed by the Treaty itself, ancillary which: 'The internal market shall comprise rights including the right mentioned pre- an area without internal frontiers in which viously to be accompanied when residing in the free movement of goods, persons, the other Member State by family services and capital is ensured in accord- ance with the provisions of this Treaty.' 17 — Opinion in Case C-413/99 Baumbast and R [2002] ECR I -7091, paragraph 28 et seq. 18 — Council Directive 68/360/EEC of 15 October 1968 on the 16 — The fact that Article 18 EC refers to citizens of the Union abolition of restrictions on movement and residence within and Article 39 EC to workers of the Member States is the Community for workers of Member States and their immaterial in that connection. families (OJ English Special Edition 1968 (II), p. 485.

53. For non-active persons a right to 55. That brings me more specifically to the remain applies under Directive 90/364. 20 rights of family members who are not That right is conferred on nationals of the themselves nationals of an EC State. Member States who do not possess that Article 10 of Regulation No 1612/68 right under other provisions of Community confers rights on nationals of non-Member law together with members of their families States who can rely on their status as the provided they have sickness insurance spouse or children of a Community worker. cover for themselves and their families The fact that they are not citizens of the covering all risks in the host country and Union is not relevant to their right to that they have adequate resources in order remain: the only material factor is the tie to prevent them from becoming a burden to with the worker. The regulation says the social security scheme of the host nothing further concerning the spouse. country during their stay there.

56. I now come to the development of that 54. European legislation in regard to free- right. The freedom secured in the Treaty to dom of movement for workers is comple- reside in another Member State is becom- mented by the right to move and to reside ing more and more comprehensive. The exercise of that right by citizens of the Union may not be impeded by barriers 19 — The Court itself went a step further in the MRAX judgment: see paragraph 74 below. 20 — Council Directive 90/364/EEC of 28 June 1990 on the right to remain (OJ 1999 L 180, p. 26). 21 — Cited in footnote 17.

57. The question, none the less, is whether the Community legislature in enacting Regulation No 1612/68 took into account all possible variants. The primary concern 58. Then there is the variant occurring in of Regulation No 1612/68 is, it seems to the present case. Mr Akrich, the spouse of a me, that when the worker migrates to Community national, is not lawfully within another Member State he must be able to the territory of the European Union. More take his spouse to another Member State importantly, not only has he not been under conditions favourable to them. That granted entry but there is also a deportation is in the interests of freedom of movement order in force against him in the United and is also in conformity with Article 8 Kingdom. None the less, he is relying on ECHR. Yet other situations are also con- Community law in order to gain entry to ceivable which come within the broad the European Union in another Member terms of Article 10 of Regulation State, in this case Ireland. That right is granted to him and he consequently

22 — Sec Echternach & Moritz, which I discuss below at paragraph 79. 23 — See paragraph 73.

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24 — See, for example, recent judgments in Case C-60/00 61. However, legislation in regard to free- Carpenter [2002] ECR I-6279, paragraphs 38-42 and Case C-459/99 MRAX [2002] ECR I-6591, paragraphs 63 dom of movement for persons also confers and 61. See also at paragraph 106 below.

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65. None the less, I will begin with a 25 — Or public security or public health. preliminary observation: Essentially, the

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interpretation by the Court of the provi- 67. In order, then, to establish a right under sions concerning freedom of movement for Article 39 EC the presence of a cross- workers may be described by use of the border element is required. In a given term extensive. In addition to the wording situation there must be factors connecting of the rules the Court also attaches much the person seeking to establish the right importance to the underlying intention: with at least two Member States. The restrictions on freedom of movement for classic situation contemplated in Article 39 workers must as far as possible be removed. EC concerns the national of a Member The other side of the coin is that the scope State who moves to another Member State for national measures which (may) impinge in order to work there. That person derives on that freedom is limited. entitlement under Community law to remain in that other Member State. That is the principal rule contained in Article 39 EC.

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concept. 30 The operation of that concept Secondly, it is not a requirement per se that may not be curtailed by reference to criteria a national of a Member State physically laid down in national legislation, for installs himself in another Member State. In example by requirements concerning the the Carpenter judgment, which concerned extent of the work or concerning the the freedom to provide services the Court minimum period during which occupa- deemed Community law to be applicable to tional activities are performed. 31 a situation in which a provider of services principally provides services from his own Member State to recipients of services established in other Member States. The Court, it seems to me, went further in the Deliège judgment. 33 In that case the Court has opened up the possibility that a person 70. In order in actual fact to secure free- may rely on Community law on the basis of dom of movement for workers various the fact that he is participating as a supplementary rights are recognised in the practitioner of sport in a competition case-law and under secondary Community talcing place in a Member State other than legislation. Thus, the Court has given effect that in which he is resident. Naturally it is a to the notion that these are fundamental requirement in that connection that the freedoms secured by the Treaty which on participation in international competitions that ground may not be construed restrict- constitutes an economic activity within the ively. 32 That supplementation occurs in meaning of Article 2 EC. Thirdly, the two ways: the Court interprets broadly the worker may under certain circumstances right of the worker himself but in addition continue to rely on Community law if after comparable rights are conferred on the residence in another Member State he members of the worker's family. returns to his own country. In view of its importance to the present case that point- will be discussed separately below.

regulation. Thus, family members obtain Regulation N o 1612/68 the right to remain their own enforceable rights but those in favour of the children of the (former) rights are dependent on a tie with a migrant worker was maintained, as was the right to worker. That derivative nature of those remain of the parent carer, which in its turn rights means that the spouse does not need was derived from the rights in favour of the to be a citizen of the Union and also that children. there does not need to be a factor con- necting the spouse with more than one M e m b e r State. W h a t is i m p o r t a n t is whether there is a connecting factor in the case of the worker himself, as was held, inter alia, in Morson and jhanjan.35 In 74. Finally, and this is true of both the accordance with that judgment there was worker and the member of his family, they no connecting factor in a case where may not, prior to entry into a Member workers who had never worked in another State, be made subject to formalities. Member State wished to bring over family Sending back at the border is possible only members from a non-Member State. if a person cannot prove his identity. 3 8 In that connection the Court itself has already held in MRAX that failure to possess a valid visa cannot in itself give rise to refusal of entry. 3 9 Nor, under that judgment, can non-compliance with formalities provide a ground of refusal.

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Article 39 EC. However, that does not subsist under a previously established right. preclude that status from having certain In similar terms are the judgments in effects after the end of the employment Angonese, Kraus and D'Hoop 4 3 which all relationship. 4 1 Those effects continue to concerned the treatment of citizens of the subsist after the worker's return to his own European Union in their own countries Member State. after they had previously pursued training in another Member State. Without going into details I would point out that they had made use of the right to free movement which brought them within the scope of Community law. After their return they were entitled to continue to exercise rights 76. In the Singh42 judgment the Court held under Community law. In particular it that: 'A national of a Member State might could not be held against them that they be deterred from leaving his country of had not pursued their (whole) training in origin in order to pursue an activity as an their own countries. There must therefore employed or self-employed person as envis- be a connecting factor between the exercise aged by the Treaty in the territory of of the right of free movement and the right another Member State if, on returning to on which the person concerned is relying. 44 the Member State of which he is a national in order to pursue an activity there as an employed or self-employed person, the conditions of his entry and residence were not at least equivalent to those which he would enjoy under the Treaty or secondary law in the territory of another Member State.' In short the Court is proceeding on the basis that after returning to his own Member State a migrant worker continues to derive rights from the EC Treaty. In that judgment the Court also stated that those rights are equivalent to the rights conferred directly by the EC Treaty on a migrant worker or self-employed person.

rights are no different than if the worker Member State cannot —• save in special had installed himself in another Member circumstances 47 •—• be extended to State. workers who have ceased to pursue their occupation in the host Member State and have decided to return to their Member State of origin. Thus, study finance need not be awarded in a case where the worker 79. In the case of the worker's children that returns with the child in whose favour right goes even further. In Echternach & entitlement to study finance had sub- Moritz 45 the Court held that where a sisted. 48 worker has worked in another Member State, the worker's child retains the status of a member of the worker's family within the meaning of Regulation No 1612/68 where the child's family returns to the country of origin and the child — perhaps after a certain interruption — remains in the host country in order to continue his education which he was unable to do in his country of origin. In that connection the D — Significance of the prohibition on Court considered that the advantages discrimination accruing to the members of a worker's family contribute to their integration in the social life of the host country in accordance with the objectives of freedom of move- ment for workers. For such integration to come about, the Court continued, a child of a Community worker must have the possi- 81. According to the Court's settled case- bility of attending school and pursuing law, the principle of equal treatment laid further education in the host country, as down in both Article 39 EC and Article 7 of is expressly provided in Article 12 of Regulation No 1612/68 prohibits not only Regulation No 1612/68, in order to be overt discrimination on the basis of able to complete that education success- nationality but also all covert forms of fully. 46 discrimination which in fact lead to the same result by means of the application of other distinguishing criteria. Persons con- cerned may rely on that prohibition which is interpreted broadly. A condition thereof is that they are not outside the substantive 80. The advantages in favour of the scope of Community law, as the Court children are not, however, unlimited. Ech- ruled in Morson and Jhanjan. 49 ternach & Moritz concerned a specific situation. For in general non-discrimina- tory access to the social benefits of the host 47 — For special circumstances see Case C-57/96 Meints [1997] ECR I-6689 which concerned a benefit whose grant was dependent on an employment relationship which had come to an end shortly before and which was inextricably linked with the recipient's objective status as a worker. 45—Joined Cases 389/87 and 390/87 Echternach & Moritz 48 — Case C-33/99 Fahmi and Esmoris Cerdeiro-Pinedo Amado [1989] ECR 723. [2001] ECR I-2415, paragraph 47. 46 — Paragraphs 20 and 21 of the judgment. 49 — Cited in footnote 35 above, paragraphs 15 to 17.

84. Conversely, reverse discrimination plays a considerable role. A Member State may make its own nationals subject to rules which it may not impose on nationals of other Member States where those rules would impede the exercise by the latter nationals of a freedom guaranteed by the 83. In connection with freedom of move- Treaty. However, that power in favour of ment for persons the prohibition is quali- the Member State is not limitless. In fied in two respects. On the one hand, the situations which are within the substantive Court sometimes concedes that a Member scope of Community law, a national of a State's own national may be treated better Member State is legally entitled to receive than the national of another Member State. equal treatment, 52 irrespective of his That difference results from the fact that, as nationality and without prejudice to the Community law currently stands, there is exceptions expressly provided for. Within no unconditional right in favour of that scope it is then true of a Member nationals of one Member State to remain State's own national that he is being on the territory of another Member impeded in the exercise of a freedom State. 5 0The difference in treatment may guaranteed by Community law. This means also manifest itself in a difference in treat- that discrimination of a Member State's ment as between the spouse of a Member own national is possible only where all State's own national and the spouse of the relevant aspects of a case are confined to a national of another Member State. More single Member State. The Court regards specifically, as the Court has held, a such a case as a matter purely internal to a Member State is entitled, in the case of Member State owing to the absence of any the spouse of a person who himself is not connecting factor with situations coming eligible to claim unlimited leave to remain, to require a longer period of residence in its territory than in the case of the spouse of a 51 — Case C-356/98 Kaba [2000] ECR I-2623, paragraphs 30 to 32.

— with the person who remains estab- lished in the Member State in which he has exercised his freedom (Fahmi and Esmoris Cerdeiro-Pinedo Amado judg- 85. As far as is relevant to this case, I have ment). thus given an adequate outline of the prohibition on discrimination. That brings me to the substance of discrimination: equal treatment in regard to whom? The classic case of discrimination concerns the Community migrant who installs himself in — with the Member State's own national a n o t h e r M e m b e r State. H e m u s t be who has not made use of Community a c c o r d e d the same t r e a t m e n t as the law (D'Hoop judgment). national of that Member State. A classic illustration of this is to be found in the Reed 54 judgment where a Member State which, in the case of its own nationals, treats married and unmarried partners on the same footing for the purposes of the — with the person who moves to another grant of certain benefits, may not in the Member State (a third Member State) case of Community migrants limit those (Singh judgment). benefits to spouses of migrant workers.

guaranteeing retention of a social advan- 89. However, that judgment does not tage in favour of migrant workers who examine the question whether application have ceased their occupational activity in of the prohibition on discrimination may the host Member State and have returned also mean that the fact that a person has to their Member State of origin. 57 I would made use of Community law can place him interpret this case-law more broadly. After in a more favourable position. It is precisely a person returns to his own Member State that interpretation which would be of there is no longer any ground for compari- benefit to Mr and Mrs Akrich in the son with persons who have remained in a present case. host country. That applies in regard to rights inherent in local residence such as entitlement to study finance, but also in regard to other rights. A person is back in the legal sphere of his own Member State and rights therefore arise in regard to that person's own Member State. 90. This interpretation is to be found in the Singh judgment. From this comparison the Court also draws consequences for the legal position of the spouse of a Community national who has made use of Community law where the latter returns to his country of origin. The spouse has at least the same rights to enter and to remain as those which Community law would confer on her if her spouse decided to move to and remain in another Member State, of which he is not a 88. The second parallel concerning the national. prohibition of discrimination is to be found in the D'Hoop 58 judgment. It would be incompatible with the right of freedom of movement were a citizen, in the Member State of which he is a national, to receive treatment less favourable than he would enjoy if he had not availed himself of the opportunities offered by the Treaty in relation to freedom of movement. At issue E — Limitations on the basis of public here therefore is unequal treatment in policy and public security regard to fellow citizens who have not availed themselves of the right to freedom of movement. A person may not be pena- lised for making use of a freedom guaran- teed in the EC Treaty. 91. Under the Court's case-law national measures liable to hinder or make less attractive the exercise of the fundamental 57 — Fahnu and Esmoris Cerdeiro-Pinedo Amado, cited a t freedoms guaranteed by the EC Treaty footnote 48, paragraph 46. must fulfil four conditions: they must be 58 — Cited in footnote 43, paragraph 30. It is noteworthy, moreover, that in earlier comparable cases (e.g. Augonese, applied in a non-discriminatory manner; cited above at footnote 43, paragraph 37 et seq.) the Court reasons on the basis of indirect discrimination of nationals they must be justified on overriding public- of other Member States. interest grounds; they must be suitable for

92. Article 46 EC recognises public policy 93. The prohibition on discrimination on and public security as overriding public- the ground of nationality does not mean interest grounds. Public policy, and public that in the present case the same sanctions security, may be invoked in regard to are also applied in regard to a Member nationals of other Member States enabling State's own nationals. More specifically, them to be removed from national territory the Member States may on grounds of or enabling refusal of entry thereto. Under public policy adopt measures in regard to the Court's case-law public policy may be nationals of other Member States which invoked only when there is a genuine and they cannot adopt in regard to their own sufficiently serious threat affecting a fun- nationals in the sense that they cannot damental interest of society. 60 In its case- remove the latter from national territory or law the Court bases itself directly on the deny them access to that territory. 62 How- Treaty and on this point applies a criterion ever, that does not mean that the sanctions which is stricter than the provisions of applied to a Member State's own nationals Directive 64/221. On occasion the Court and to nationals of other Member States refers expressly to that directive. 61 In that may be entirely different. The Olazabal connection it held that the existence of a judgment contains a good example of previous criminal conviction can, therefore, this. 63 In that case the Court made the be taken into account only in so far as the permissibility of a measure refusing a circumstances which gave rise to that national of another Member State access conviction are evidence of personal conduct on grounds of public policy to a part of constituting a present threat to the require- national territory dependent on whether in comparable cases punitive measures are also adopted in regard to the Member 59 — Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 37. State's own nationals. 60 — The settled case-law begins with Case 41/74 Van Duyn [1974] ECR 1337, paragraphs 22 and 23, includes Case C-348/96 Calfa [1999] ECR I-11, paragraphs 20 and 21, and, most recently Case C-100/01 Olazabal [2002] ECR I-10981, paragraph 39. 62 — See, for example, Olazabal, cited in footnote 60, at 61 — See, for example, Calfa, cited above in footnote 60, paragraph 40. paragraph 24. 63 — Cited in footnote 60, in particular paragraph 45.

95. In the Carpenter judgment the Court 97. The Treaty freedoms do not preclude applies as the criterion concerning propor- the Member States from taking the meas- tionality a balance between, on the one ures necessary in order to prevent such hand, the right to respect for family life — abuses. Under the Court's case-law a under Article 8 ECHR — and protection Member State may adopt provisions seek- of public policy and security, on the other. ing to prevent its nationals from taking The interest in the exercise of a fundamen- advantage of the possibilities created by the tal freedom under the EC Treaty does not therefore form part of the proportionality test. 65 — The standard judgment i n tills connection is Case 115/78 Knoors [1979] VCR 399, paragraph 25. 66 — Case C-110/99 Emsland-Stärke [2000] ECR I-11569, paragraphs 52 and 53. That judgment concerned a 64 — Cited in footnote 24, in particular paragraphs 6 1 , 78 and different area of Community law, namely export refunds 90. in agriculture.

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Treaty in order improperly to circumvent Yet that says little about the Member their national legislation and invoking States' margin of discretion in that con- Community law for an abusive purpose or nection. That margin is limited. with a view to fraud. 6 7

9 9 . T h u s , misuse of EC law can be countered by means of national provisions.

101. It is striking that the Court did not 67 — Case C-212/97 Centros [1999] ECR I-1459, paragraph 24. apply analogous reasoning in the TV10 That case-law began with Case 33/74 Van Binsbergen [1974] ECR 1299. 68 — Case C-148/91 Veronica Omroep Organisatie [1993] ECR I-487, paragraph 13. 70 — Case C-367/96 Kefalas and Others [1998] ECR I-2843, 69 — C a s e C-23/93 TV10 [1994] ECR I-4795, paragraphs 14 paragraph 22. and 2 1 . 71 — Cited in footnote 67, at paragraph 27.

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judgment. For in that case as well use was another Member State for the purpose of made of a right inherent in freedom of working there. According to the Court, the establishment, namely the setting up of a worker's actual intention in residing in the company in another Member State. I am of other Member State is not relevant. What is the view that the TV10 judgment must be relevant, on my reading of the judgment, is viewed in its specific context. The company a genuine intention of pursuing employ- was set up in another Member State purely ment at the time of residence there. and simply in order to circumvent national legislation which sought to attain an objec- tive of general interest upheld by the Court in the field of cultural policy. The con- sequence of the setting up of the company was that the general-interest objective could no longer be properly attained.

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persons and also that it is open to the Court's case-law in which increasing value Community to adopt fresh measures at is being accorded to citizenship. A signifi- European level in order to combat circum- cant step in that connection was taken in vention of the law. the Grzelczyk judgment. Union citizenship is destined to be the fundamental status of nationals of the Member States. 76 And frequently the citizen will, as the Court of course acknowledges, have a family.

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legislature's objectives but is also assuming its case-law in regard to freedom of move- increasing significance in other areas as a ment for workers applies an extensive point of reference for review by the Court. interpretation. The extensive nature of that Accordingly, I am assuming that Article 8 interpretation may be clarified by the ECHR determines the interpretation and exposition of that case-law. application of the EC Treaty itself and, with specific reference to the present case, Article 39 EC. I would also refer to the judgment in Carpenter. 7 9 In that case the Court reviewed a decision directly in the light of Article 8 ECHR. The Court stated as follows: 'Even though no right of an alien to enter or to reside in a particular 110. I shall begin with the case-law con- country is as such guaranteed by the cerning the scope of freedom of movement Convention, the removal of a person from for workers. In order for a right to be a country where close members of his established the activity of an EU citizen family are living may a m o u n t to an must come within the area of application of infringement of the right to respect for Community law and that citizen must be a family life as guaranteed by Article 8(1) of worker. Community law applies as soon as the Convention. Such an interference will there is a cross-border element; to that end infringe the Convention if it does not meet a worker does not have to establish himself the requirements of paragraph 2 of that in another Member State. In order to be article, that is unless it is "in accordance deemed to be a worker it is sufficient for with the law", motivated by one or more of there to be an employment relationship of the legitimate aims under that paragraph limited duration and extent. and "necessary in a democratic society"...'

112. Conversely, possible restrictions on the worker's right are strictly construed. 114. Fundamentally, the United Kingdom That is true of the interpretation of the Government is stating that the measures concept of public policy as a ground for which a Member State may adopt under restricting the right and of a presumption of Directive 6 4 / 2 2 1 p r o d u c e i n a d e q u a t e misuse of Community law. effects. It expresses the fear that were the Court to decide that M r Akrich has a right under Community law to remain in the United Kingdom, it would be possible for all spouses from non-Member States to evade national law with impunity and to obtain a right to remain if they are married to a national of a Member State. Con- V I I — Assessment sequently, the Member States' right to adopt measures to combat abuse would become marginalised.

A — Preliminary observations

113. I begin with an observation concern- ing the approach to be adopted. The United 115. Conversely, the Commission points Kingdom Government is asking the Court out that application of national immi- for a clear answer that enables the national court to determine whether reliance on gration law would mean that national law Community law is correct in law or has priority although a person is protected whether the element of abuse or fraudulent by Community law. In this case national conduct constitutes a decisive factor. I shall bear in mind this request by the United law does not apply to the person con- Kingdom in replying to the questions raised 80 — See paragraph 172 below.

cerned. In that connection the Commission B — The dilemma refers to the Centros 81 judgment. In the Commission's view, there is no pressing national interest justifying the application of national law. 118. I closed the introduction to this Opinion by stating the following dilemma: must the Court's extensive case-law, as expressed, inter alia, in the Singh judgment, entail the consequence that national immi- gration legislation must always remain 116. The submissions on behalf of Mr inapplicable where spouses from outside Akrich are to the same effect. In his view the European Union are involved who arc there is complete harmonisation in regard married to Community nationals but are to freedom of movement of persons with not lawfully on the territory of the Euro- the consequence that a Member State no pean Union? The resolution of that longer has the right to adopt unilateral dilemma is central to the assessment of this measures in that area. If a Member State case. precludes a certain category of persons from rights in connection with freedom of movement for persons by adding an extra requirement to the concept of worker, that is itself restrictive of the free movement of persons. He also states that the United Kingdom Government may not adopt 119. On the one hand is the immigration measures which are more far reaching than law governing entry to the European Union the measures which may be adopted under by nationals of non-Member States. A Directive 64/221. Any more restrictive major feature of immigration law which is measure is by definition disproportionate. still to a large extent determined at national level is that it imposes a barrier to entry to the European Union by nationals of non- Member States. That barrier is twofold: first, entry is allowed only after a prior individual assessment by the authorities. Secondly, the grounds for entry are exhaus- tive. In addition, the bar has steadily been 117. The curious feature of this case, in the raised as the immigration pressure on (the submission of Mr Akrich, is that the Member States) of the European Union has Secretary of State accepts that it is not increased. possible as a matter of Community law for another Member State to refuse Mr Akrich entry to and residence in its territory but that the United Kingdom is none the less doing so. That is the anomaly which I outlined in paragraph 62 hereof. 120. On the other hand is the movement of 81 — Cited in footnote 67; sec in greater detail at paragraph 100 persons within the European Union itself. hereof. The main feature of that internal move-

121. Viable and enforceable immigration legislation, as described above, is a necess- ary precondition of the completion of the internal market in which internal border controls may be lifted and persons may 123. However, there is a substantial circulate freely within the whole Union. anomaly in the system. Persons who have The latter concern, namely the creation of not yet been allowed entry to the European the internal market with free movement of Union may sometimes have a right to persons, is precisely one of the reasons why remain under the rules concerning the the Community legislature and the Com- internal movement of persons. That is munity judicature opted in favour of a applicable, inter alia, under Article 10 of broad sphere of application for Article 39 Regulation No 1612/68 to the spouse of a EC. The link between the regulation of migrant worker. It is this status of spouse immigration to the European Union and on which Mr Akrich is relying. Such free movement within it is apparent, inter spouses may enter the European Union alia, from Article 61(a) EC. Therein the without a prior individual assessment by Treaty mentions external border controls the immigration authorities. In the case of as a flanking measure in regard to the Mr Akrich it appears that a person who I - 9646

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126. The Court is now called upon to examine the question whether the general rule in Singh is also applicable in a case where the spouse accompanying the worker in her own country was admitted to the territory of the European Union in a 128. The consequences of that anomaly, if manner not in conformity with the normal the Singh judgment is applied without

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reservation are more far reaching in the My concern is of another kind. If the Singh specific situation in the main proceedings. judgment were to be interpreted without A Member State which has decided on the qualification, the effectiveness of immi- basis of a prior individual assessment under gration law might, as I have said, be its national immigration law to exclude a impaired. national of a non-Member State in light of that law would then be bound to allow entry to that person without any fresh individual assessment having been con- ducted within the European Union.

131. I am of the view that, in the circum- 129. In addition, it is clear from the stances of the main proceedings, Commu- statements made by Mr and Mrs Akrich nity law may not be interpreted in such a that they arranged their living and working way as to render inapplicable the immi- circumstances in such a way as to acquire a gration law of a Member State. right under Community law to remain which cannot be restricted by application of national immigration law. Mr Akrich is thus invoking freedom of movement for persons as a vehicle for entry to the European Union whilst the rules of immi- gration applicable to him afford him no right of entry.

Singh couple was a marriage of conveni­ spouse will not be allowed entry. In both ence. Thirdly, the Court formed its view cases the situation is no different if the on the basis of the argument that an marriage takes place during residence in obstacle occurring on a person's return to another Member State. his own country could deter a national of a Member State from making use of the right to go and work in another Member State. That argument cannot prevail in a case where the spouse has not been allowed entry to the national's own country. Owing to the anomaly in the system described 134. However, Singh does not create a above, that is precisely the reason for the right in favour of the national of a non- Community national to go and work in Member State to enter the territory of the another Member State. European Union. For that the immigration law of the Member States is applicable under which a prior individual assessment is required. The anomaly in the system whereby a spouse of a migrant worker may remain in the territory of a Member State without a prior individual assessment docs not mean that that person has an unre­ stricted right to move and reside in the European Union.

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without its having been possible to apply paragraph is in principle justified in allow- controls on entry. Put another way, a ing the national concerned entry to its restriction on those possibilities in favour territory only after a prior individual of nationals of non-Member States is, in assessment. A Member State's competence light of the foregoing, a necessary precon- to subject that person to such an assessment dition of unimpeded freedom of movement is necessary in connection with the viability for persons within the European Union. In and enforceability of immigration law. that connection it is immaterial that entry of nationals of non-Member States is at present regulated at the level of the Member States. Even when Community competence is supplemented under Article 63 EC the abovementioned con- dition will still have to be satisfied.

D — Effect of that determination

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possible only in connection with a risk to immigration law should not be underesti- public policy, public security or public mated. Thus: health. A more wide-ranging assessment would be disproportionate and thus pro- hibited in light of the requirements laid down by the Court in that regard, for example in the MRAX judgment. 83 — the personal scope of Community law and national immigration laws are becoming more and more conver- gent; 84

— the Court affords extensive protection to freedom of movement of persons as 140. Thirdly, Community law must not be one of the fundamental freedoms of the allowed to be used in order to circumvent EC Treaty; the national immigration laws of the Member States, in particular the prior individual assessment. That is all the more so in the situation in the main proceedings in which Community law is used in order to deprive of legal effect an earlier decision — any extension of the Court's case-law to deport a person from a Member State. In may lead to fresh attempts at circum- the individual case of Mr Akrich it was an vention. It is in that sense that Mr and offence committed earlier which led to his Mrs Akrich are expressly relying on the deportation from the United Kingdom and judgment in Singh. which thus also precludes his entry as the spouse of a United Kingdom national.

142. In that connection I would point out that the particular case of Mr and Mrs Akrich may not occur that frequently in future. Yet other variants are conceivable whereby persons may seek to evade the immigration laws by availing themselves of Community law. That is not difficult where a justificatory ground is not upheld by the 141. Fourth, the extent of the risks to the Court. It may also be of benefit to persons viability and enforceability of national concerned in view of the fact that for

— respect of the right to family life. 144. In the present case the rules in ques- tion are appropriate since the objective which they pursue is acceptable, namely the prior individual assessment of immigration by nationals of non-Member States. As it currently stands, Community law permits 146. It is established that Mrs Akrich and the Member States to shape their national her spouse are impeded in the exercise of a immigration laws in regard to entry by right to free movement conferred on them nationals of non-Member States as they see by Community law, as interpreted in the Singh judgment. However, I am of the opinion that the rules in question do not go 85 — See footnote 12 above. further than is necessary for attainment of

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147. That brings me to the issue of the right to respect for family life, as laid down in Article 8 ECHR. In my view Article 8 ECHR is primarily of significance in regard 149. In light of the conclusion which I have to the application by the United Kingdom come to above, I do not consider it authorities of national immigration laws. appropriate to deal with the questions That application is not subject to review by submitted by the referring tribunal in the the Court. Only in very special cases is sequence indicated by it. For the intentions Article 8 of significance in the assessment of Mr and Mrs Akrich, which the referring of proportionality. That was so in the tribunal primarily addresses, are not the Carpenter case. In that connection the essential element. The competence of a C o u r t 8 6 considered that the refusal to Member State to apply national immi- allow Mrs Carpenter to enter the United gration law is a matter independent of such Kingdom would result in a separation of intentions. the parties to the marriage. However, the present case does not concern a forced separation. Mr and Mrs Akrich live in Ireland and can continue to live there. What is being denied them is the right to freedom of movement, that is to say the right to install themselves together in the United Kingdom. 150. That brings me to the following determination: I find that the application of national immigration law is justified by an overriding public-interest ground, in this 86 — Sec paragraph 39 or the judgment. Also i n the case-law or the European Court of Human Rights the crucial issue is case the viability and enforceability of whether the spouses can reasonably live together in another country. Sec Boulift v. Switzerland, ECHR national immigration laws. That justifica- 2001-IX, §§ 52 to 55. tory ground has not hitherto been expressly

152. The United Kingdom takes the view that in the present case Community law is not applicable. In the United Kingdom — M r and Mrs Akrich are outside the Government's assertion, where a person scope of Community law; seeks to use Community law in order to circumvent national law, that person can- not rely on the advantages stemming from Community law. Such a person falls out- side the scope of Community law. Accord- ingly it is not necessary to determine whether that Member State is entitled —· they are within the scope of Commu- under Community law to prohibit entry nity law but the Member State's con- to its territory on the basis of public policy. duct is warranted by the overriding Thus, in the United Kingdom Govern- public interest in the safeguarding of ment's view, there is no need to examine public policy and public security within whether M r s Akrich is a Community the meaning of Article 46 EC or worker. Directive 64/221;

153. Conversely, the Commission is of the — idem, but the justification is not to be view that nationals of the European Union sought in the areas of public policy and have the right under Article 39 EC to move public security but in an overriding to another Member State in order to work ground upheld in the Court's case-law, there and to return to the Member State of namely the ability to combat abuse of origin together with their spouse and enjoy Community law. the same rights there as they enjoyed in that

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155. First, I will deal with establishment of a right as a Community worker. Sub- sequently, I will turn to the circumstances under which a citizen of the Union return- ing to his own country after working for a 157. Thirdly, the right of a national of a period in another Member State continues Member State of the European Union to to come within the substantive scope of settle in another Member State has increas- Community law. In that connection the ingly become more complete. That deve- question of the significance of the prohib- lopment has culminated in the direct effect ition on discrimination also arises. Finally, of Article 18 EC which was for the first- I address the entitlement of the spouse of time expressly recognised by the Court in that citizen under Community law and the its judgment in Baumbast and R. As a significance of the fact that his entitlement result the intention underlying residence in is derived from the rights of his spouse. another Member State is no longer material

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159. In light of these considerations I now turn to the case at issue in the main proceedings. In those proceedings it is 1 6 1 . Thus, the prohibition of discrimi- established that during her period of resi- nation entails the consequence that the dence in Ireland Mrs Akrich worked for national of a Member State of the Euro- more than six months for a bank. Accord- pean Union who has resided in another ingly, there is no doubt that in that Member State and has made use of Com- connection she had a right under Commu- munity law in that way acquires a more nity law to reside in Ireland and that during favourable legal position than his fellow her period of residence in Ireland she had countryman who has not made use of the status of a Community worker. It has Community law. The same is true of the also been established that the Irish auth- spouse of the national of a Member State orities also treated her as such. Since the who has resided in another Member State. intentions of persons concerned are imma- In Singh the Court does not contrast that terial, I can discern no factor of relevance national with a fellow countryman but to the viewpoint of the United Kingdom with a person installing himself in another that M r and Mrs Akrich are outside the Member State. On that view Mrs Akrich substantive scope of Community law. has the right to take her spouse with her to the United Kingdom. M r Akrich retains his own right to remain conferred on him by Regulation N o 1612/68. Thus both retain the rights conferred on them by Commu- nity law in Ireland. 160. The broad view taken by the Court in regard to establishment of the right is also apparent in the extent of a former Com- 87 — See paragraphs 75 et seq. munity worker's rights after that person's 88 — See in more detail paragraphs 89 and 90 above.

163. In other words the right in favour of Mr Akrich is said to be a lesser right. I do not share that view. The right enjoyed by Mr Akrich under Community law is a right fully based on Community law. It is derivative in nature only inasmuch as it is derived from the tie existing between him and a Community worker. That tie must satisfy two conditions: there must be a tie between Mr and Mrs Akrich and Mrs 165. In light of the foregoing I conclude Akrich must have rights under Community that a national of a Member State who has law owing to her status as a Community worked as a Community worker in another worker. In the present case there is no Member State may continue even after his doubt that the tie satisfies both conditions. return to his own country to derive rights from Community law and more particu- larly from Article 39 EC. Amongst those rights is the right for the spouse to install himself in the national's own country. The application by the United Kingdom auth- orities of national immigration laws con- flicts with that right. Thus, it must sub- sequently be examined whether application of national rules is justified by an overrid- 164. Nor do I attach significance to the fact ing national interest. 1 established earlier that the right in favour of Mr Akrich that such justification subsists in the pres- primarily stems from secondary Commu- ent case.

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H — Misuse of Community law 171. The Greek Government observes that persons are in principle entitled to arrange their circumstances in such a way as to come within a given set of rules, in this case Community law, and to benefit therefrom. But in regard to misuse of Community law the national courts arc best placed to 169. In the proceedings before the Court determine whether the person concerned much attention was paid to the question of loses the advantages of Community law. a misuse of Community law. That is Accordingly, that government states that apparent from the observations submitted regard may be had to the intention of the and is also logical in view of the questions spouses. In that regard the declared inten- referred to the Court for a preliminary tion of the persons concerned must be ruling. In that connection the Commission inquired into. The inner will and motives is of the view that the motives or intentions are immaterial. of those concerned are not material. That the spouses made use of facilities afforded by the case-law, thus obtaining an advan- tage from Community law, does not result in a misuse of Community law. It is also asserted on behalf of Mr Akrich that under the case-law regard may not be had to the motives of those concerned. The fact that his wife moved to Ireland with the inten- tion of pursuing occupational activities there and of returning after a certain period to the United Kingdom and that she did not wish to remain permanently in Ireland cannot in itself be deemed to constitute a misuse.

175. Secondly, in regard to objective crite- ria: the j u d g m e n t in Emsland-Stärke requires for a finding of misuse that in — subjective criteria serve no purpose; addition to subjective conditions objective conditions must also be satisfied. In the present case the duration of residence in Ireland is taken to constitute an objective condition. Both in Lair and in Knoors significance was attached to duration of residence. In Lair it was significant for the Court that the person concerned worked — objective criteria — where identifi- only for a very short period in another able — may be circumvented; Member State. In Knoors the Court held that in a case where the Community legis- lature had laid down a minimum period of residence in another Member State the Member State no longer had a justified interest in being authorised to prevent abuse. By dint of a contrario reasoning, — the dividing line between abuse and use such an interest would be capable of for a purpose not contemplated by the subsisting where the Community legislature legislature is hard to define. has laid down no minimum period.

176. H o w e v e r , objective criteria lend 174. First, in regard to subjective criteria, themselves to being circumvented. In my considerable reluctance to attach weight to view legal certainty requires that the factors such criteria is discernible in the case-law. taken into account by the national auth- In principle, as is apparent from the judg- orities in reviewing the issue of misuse be ment in Levin, the worker's intentions are discernible. That entails the risk that per- irrelevant. It follows from my preliminary sons concerned may adjust their situation observation that that reluctance on the part so as to satisfy the conditions laid down. I of the Court is inevitable since subjective would point to the statement by M r s

179. I will illustrate that point in this way. Community law makes it possible for a national of one Member State to install himself in another Member State. A citizen of the Union may have all kinds of reasons for installing himself in another Member State. One such reason may be that another 177. The United Kingdom Government Member State offers him a more favourable appears to acknowledge the possibility of legal regime. That was the case in Centros circumvention and opts for a combination where the person concerned opted for a of subjective and objective criteria on the Member State having a system of company basis of which misuse may be estab- law favourable to him. That is much more lished. 8 9 I do not see how such a com- frequently the case as a result of differences bination of criteria can serve to remove the in the tax legislation of the Member States. problems raised. For, in regard to the Community law can have no complaint subjective criteria, or motives, the persons with such mobility; rather it is precisely the concerned do not have to practice openness objective of Community law to promote and, in regard to the objective criteria, they mobility. may satisfy these.

180. The installation of Mr and Mrs 178. Thus I come to my third point: the Akrich in Ireland must be viewed as a use dividing line between misuse of EC law and of EC law for a purpose not contemplated use of EC law for a purpose which in actual by the EC legislature but which is inherent fact was not contemplated by the Commu- in EC law. The EC legislature did not nity legislature though rendered possible by intend to create a right that can be used in it. In that connection I have in mind also order to evade national immigration laws but did create a right in favour of a national of a Member State to install himself in 89 — The list of c r i t e r i a— not included in this Opinion — seeks to provide the Court with a means of assessment in a case such as this where a married couple has temporarily moved to another Memher State. 90 — Sec paragraph 100 above.

182. That being said, the question arises as to whether the same is true of the return of 184. I conclude that in the situation arising a Community worker to his own Member in the main proceedings there can be no State. I am of the opinion that, in view of question of a misuse of Community law. the judgment in Singh,91 the answer to this question cannot be other than affirmative. In accordance with the judgment in that case, the conditions for his entry and residence must be at least equivalent to those to which the Community worker is entitled under the EC Treaty or secondary Community law in the territory of another 1 8 5 . W h a t e v e r the significance to be Member State. It thus makes no difference attached in general terms to the doctrine whether Mrs Akrich installs herself with of misuse of Community law, 9 2 I conclude her husband after her departure from that in the situation arising in the main Ireland in a Member State other than the proceedings there can be no question of United Kingdom — in which case there such a misuse. would by definition be no misuse of Community law — or whether she intends 92 — I would refer to paragraph 98 of the TV10 judgment in which the Court upheld national legislation seeking to counter abuse of Community law, notwithstanding the fact that that legislation impeded freedom of movement within 91 — Cited above in footnote 2, paragraph 19. the European Union.

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AKRICH

VIII — Conclusion

186. In light of the foregoing I propose that the Court should reply as follows to the questions referred to it by the Immigration Appeal Tribunal:

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