Law Report: Spouse entitled to residence under Community law: Regina v Immigration Appeal Tribunal, Ex parte Secretary of State for the Home Department - European Court of Justice, Luxembourg, 7 July 1992

When a national of a member state of the European Community and his or her spouse, of whatever nationality, having exercised their right to free movement under Community law to live and work in another member state, returned to the member state of the national for the purpose of running a business, the member state of the national was required by Community law to give the spouse leave to enter and remain in the member state. Therefore the Indian husband of a British national was entitled to enter and remain in the UK on their return to the UK after working in West Germany.

The European Court of Justice gave judgment on a reference from the Queen's Bench Divisional Court on a question on the interpretation of article 52 of the Treaty of Rome and Council Directive 73/148/EEC on the abolition of restrictions on movement and residence within the Community for nationals of member states with regard to establishment and the provision of services.

Surinder Singh, an Indian national, married a British national in Bradford in 1982. From 1983 until 1985 they were employed in West Germany. They returned to the UK in order to open a business. Mr Singh was granted limited leave to remain in the UK as the husband of a British national.

In 1987 because of a decree nisi of divorce against him, his leave to remain was cut short and he was refused indefinite leave to remain as the spouse of a British citizen. In December 1988 a deportation order was made against him as a foreign national who remained unlawfully in the UK beyond the time limited by his leave to remain in the UK.

An adjudicator dismissed Mr Singh's appeal against the deportation order. However the immigration appeal tribunal allowed Mr Singh's appeal, holding that he 'had a Community right as the spouse of a British citizen who herself had a Community right to set up in business in this country'.

On the Home Secretary's application for judicial review of the tribunal's decision, the Divisional Court referred the case to the ECJ for a preliminary ruling on article 52 and Directive 73/148.

THE EUROPEAN COURT OF JUSTICE said that it was not alleged that the marriage was a sham. The UK submitted that a Community national who returned to establish himself in his country of origin was not in a situation comparable to that of nationals of other member states, because he entered and remained by virtue, not of Community law, but of national law. Article 52 and the directive were not therefore applicable. The UK argued that to grant a right of residence to the spouse increased the risk of fraud associated with sham marriages.

The provisions of the Treaty relating to the free movement of persons were intended to facilitate the pursuit by Community citizens of occupational activities of all kinds throughout the Community, and precluded measures which might place Community citizens at a disadvantage when they wished to pursue an economic activity in another member state.

For that purpose, nationals of member states had in particular the right, derived directly from articles 48 and 52, to enter and reside in other member states in order to pursue an economic activity there as envisaged by those provisions. Member states must grant the spouse and children of such a person rights of residence equivalent to that granted to the person.

A national of a member state might be deterred from leaving his country of origin to pursue an activity as an employed or self-employed person in another member state if, on returning to the member state of which he was a national in order to puruse 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 in the territory of another state.

He would in particular be deterred if his spouse and children were not also permitted to enter and reside in the state of origin under conditions at least equivalent to those granted them by Community law in another member state.

It followed that a national of a member state who had gone to another member state to work there as an employed person and returned to establish himself as a self-employed person in the state of which he was a national had the right, under article 52, to be accompanied in the latter state by his spouse, a national of a non-member country.

This case was concerned not with a right under national law but with the rights of movement and establishment granted to a Community national by articles 48 and 52. When a Community national who had availed himself or herself of those rights returned to his or her country of origin, his or her spouse must enjoy at least the same rights of entry and residence as would be granted to him or her under Community law if his or her spouse chose to enter and reside in another member state.

Nevertheless the Treaty did not prevent member states from applying to foreign spouses of their own nationals rules on entry and residence more favourable than those provided for by Community law.

Article 52 and Directive 73/148 required a member state to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that state who had gone, with that spouse, to another member state to work there as an employed person as envisaged by article 47 and returned to establish himself or herself as envisaged by article 52 in the state of which he or she was a national. The spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in another member state.