Surinder Singh Original 1992 Judgement

7/28/2019 Surinder Singh Original 1992 Judgement

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JUDGMENT OF 7.7. 1992 CASE C-370/90

J U D G M E N T O F T H E C O U R T7 July 1992 *

In Case C-370 /90 ,

R E F E R E N C E to t he C ou r t unde r Ar t ic l e 177 o f t he E E C Treaty by t he H ig hC o u r t o f Jus t ice (Qu een ' s Bench Div is ion) fo r a p re l im inary ru l ing in the proceed ings pending before tha t cour t be tween

T h e Q u e e n

and

Immigrat ion Appeal Tr ibunal and Sur inder S ingh

Ex parte : Secretary o f S tate for th e Ho m e De par tm ent ,

on the interpreta t ion of Art ic le 52 of the EEC Treaty and of Counci l Direct ive73/148/EEC of 21 May 1973 on the abol i t ion of res t r ic t ions on movement and residence wi th in the Communi ty fo r na t iona ls o f Member S ta tes wi th regard to es tabl ishm ent an d th e pro vis i on of services (O J 1973 L 172, p . 14),

T H E C O U R T ,

composed of : O . Due , Pres iden t , R . Jolit, F. A . Schockw eiler , F . Grvisse ,P. J . G . K ap tey n (Pres iden ts of Ch am be rs ) , G . F . M ancin i , C . N . Kak our i s ,J . C . M oi t in ho de A lmeid a , G. C . R odr g uez Ig les ias , M . D iez de Velasco ,M . Zu leeg , J . L . M ur r ay and D . A . O . E dw ard , Judges ,

Advoca t e Gene ra l : G . Tesau ro ,Regis t ra r : H . A. Rhi , Pr inc ipa l Adminis t ra to r ,

* Language of the case: English.

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after considering the wri t ten observat ions submit ted on behalf of:

the U ni t ed K ing dom by R osem ary C audw el l , o f the Treasury So l i c i to r ' sDepar tment , ac t ing as Agent , ass is ted by David Pannick , Barr i s te r ,

Su rinde r Singh by Rich ard Plende r, Q C , of the Bar of En glan d and W ales, andNicholas Blake, Barris ter , instructed by T. I . Clough and Co. , Solici tors ,

the C o m m iss ion of the Eu rope an C o m m uni t i e s by Antonio Caeiro , LegalAdviser , and Nicholas Khan, a member of i t s Legal Depar tment , ac t ing asA g e n t s ,

having regard to the Repor t for the Hear ing,

af ter hear ing the ora l observat ions of the Uni ted Kingdom, represented by John F.Col l ins , of the Treasury Sol ic i tor ' s Depar tment , ass is ted by Stephen Richards , Barr i s te r , Sur inder Singh and the Commiss ion of the European Communi t ies a t thehearing on 24 March 1992,

after hearing the Opinion of the Advocate General at the s i t t ing on 20 May 1992,

gives the fol lowing

J u d g m e n t

1 By ord er of 19 O cto be r 1990, w hich was rece ived a t the C ou r t on 17 D ece m ber1990, the H igh C ou r t of Jus t ice (Q ue en 's Ben ch Divis ion) referred to the C o ur tfor a pre l im inary ru l ing un de r Ar t ic le 177 of the E E C T reaty a que s t ion o n thein terpre ta t ion of Ar t ic le 52 of the Trea ty and Counci l Direc t ive 73/148/EEC of21 May 1973 on the abol i t ion of res t r ic t ions on movement and res idence wi th inthe Communi ty for na t ionals of Member Sta tes wi th regard to es tabl i shment andthe provision of services (OJ 1973 L 172, p. 14).I - 4289


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8 The appeal to an Adjudicator against the decision of 15 December 1988 was dismissed on 3 March 1989. In a determ ination of 17 Au gu st 1989 the Imm igrationAppeal Tribunal allowed Mr Singh's appeal against the decision of the Adjudicator,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.'

9 On application by the Secretary of State for the Home Department for judicialreview of that determination, the High Court of Justice (Queen's Bench Division)referred the follow ing qu estio n to the Cou rt for a preliminary ru ling:

'Where a married w om an w h o is a national of a M em ber State has exercised Treatyrights in another Member State by working there and enters and remains in theMember State of which she is a national for the purposes of running a businesswith her husband, do Article 52 of the Treaty of Rome and Council Directive73/148 of 21 May 1973 entitle her spouse (who is not a Community national) toenter and remain in that Member State with his wife?'

io Reference is made to the Report for the Hearing for a fuller account of the facts ofthe case, the Community legislation in issue, the course of the procedure and thewritten observations submitted to the Court , which are mentioned or discussedhereinafter only in so far as is necessary for the reasoning of the Court.

n Th e question subm itted by the national court for a preliminary ruling concerns t heissue whether Article 52 of the Treaty and Directive 73/148, properly construed,require a Member Sute to grant leave to enter and reside in its territory to thespouse, of whatever nationality, of a national of that State who has gone with thatspouse to another Member State in order to work there as an employed person asenvisaged by Article 48 of the Treaty and returns to establish himself or herself asenvisaged by Article 52 of the Treaty in the territory of the State of which he orshe is a national.I - 4291


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12 It sho uld also be obse rved that it is no t alleged that M r and M rs Sing h's marriagewas a sham. Moreover, although the marriage was dissolved by the decree absoluteof divorce delivered in 1989, that is not relevant to the question referred for a preliminary ruling, which concerns the basis of the right of residence of the personconcerned during the period before the date of that decree.

i3 Mr Singh and the Commission submit that a national of a Member State whoreturns to establish himself in that State after having pursued an economic activityin another Member State is in the same situation as a national of another MemberState who comes to establish himself in that country. In their view he must betreated in the same manner, in accordance with the prohibition of discriminationlaid down in Article 7 of the Treaty, and he may therefore rely on Article 52 of theTreaty, particularly in relation to the right of residence of his spouse when the latter is not a national of a Member State.

u The United Kingdom, on the other hand, submits that a Community national whoreturns to establish himself in his cou ntr y of origin is no t in a situation com par ableto that of nationals of other Member States, because he enters and remains in thatcountry by virtue not of Community law but of national law. Article 52 of theTreaty and Directive 73/148 are not therefore applicable to him. The United Kingdo m also argues that the application of Co m m un ity law to a national w h o returnsto establish himself in his country of origin has paradoxical consequences, sinceCommunity law would inter alia allow him to be deported from that country, andmaintains that to grant a right of residence t o the sp ou se increases the risk of fraudassociated with sham marriages.

is In its judgment in Case 118/75 Watson and Belmann ([1976] ECR 1185, paragraph16), the Co urt held that Articles 48 and 52 of the Treaty and Reg ulation (E EC ) N o1612/68 of the Council of 15 October 1968 on freedom of movement for workerswithin the C om m unity (OJ, English Special Edition 1968 (II) , p. 475), C oun cilDirective 68/360/EEC of 15 October 1968 on the abolit ion of restrictions onmovement and residence within the Community for workers of Member Statesand their families (O J, English Special E dition 1968 (II), p. 485) and Dir ectiv e73/148, cited above, implement a fundamental principle contained in Article 3(c) ofI - 4292


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the Treaty, which states that, for the purposes set out in Article 2, the activities ofthe Community shall include the abolition, as between Member States, of obstaclesto freedom of movement for persons.

it The Court has also held, in its judgment in Case 143/87 Stanton v INASTI ([1988]ECR 3877, paragraph 13), that the provisions of the Treaty relating to the freemovement of persons are intended to facilitate the pursuit by Community citizensof occupational activities of all kinds throughout the Community, and precludemeasures which might place Comm unity citizens at a disadvantage w hen they wishto pursue an economic activity in the territory of another Member State.

17 For that purpose, nationals of Member States have in particular the right, whichthey derive directly from Articles 48 and 52 of the Treaty, to enter and reside in theterritory of other Member States in order to pursue an economic activity there asenvisaged by those provisions (see in particular the judgments in Case 48/75 Royer[1976] ECR 497, paragraph 31, and Case C-363/89 Roux v Belgian State [1991]ECR 1-273, paragraph 9).

is The provisions of the Council regulations and directives on freedom of movementwithin the Community for employed and self-employed persons, in particularArticle 10 of Regulation N o 1612/68, cited above, Articles 1 and 4 of Directive68/360, cited above, and Articles 1(c) and 4 of Directive 73/148, cited above, provide that the Member States must grant the spouse and children of such a personrights of residence equivalent to that granted to the person himself.

is A national of a Member State might be deterred from leaving his country of originin order to pursue an activity as an em ployed or self-employed person as envisagedby the Treaty in the territory of another Member State if, on returning to theI - 4293


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JUDGM ENT O F 7.7. 1992 CASE C-370/90

Member State of which he is a national in order to pursue an activity there as anemployed or self-employed person, the conditions of his entry and residence werenot at least equivalent to those which he would enjoy under die Treaty or secondary law in the territory of another Member State.

20 H e w ou ld in particular be deterred from so do ing if his spo use and children w er enot also permitted to enter and reside in the territory of his Member State of originunder conditions at least equivalent to those granted them by Community law inthe territory of another Member State.

2i It follow s that a national of a M em ber State wh o has gone to another M em berState in order to work there as an employed person pursuant to Article 48 of theTreaty and returns to establish himself in order to pursue an activity as a self-employed person in the territory of the Member State of which he is a national hasthe right, under Article 52 of the Treaty, to be accompanied in the territory of thelatter State by his spous e, a national of a no n-m em be r coun try, und er the sam econd itions as are laid do w n by Regulation N o 1612 /68, Directive 68/36 0 or Dire ctive 73/148, cited above.

2 2 Admittedly, as the United Kingdom submits, a national of a Member State entersand resides in the territory of that State by virtue of the rights attendant upon hisnationality and not by virtue of those conferred on him by Community law. Inparticular, as is provided, moreover, by Article 3 of the Fourth Protocol to theEuropean Convention on Human Rights, a State may not expel one of its ownnationals or deny him entry to its territory.

2 3 However, this case is concerned not with a right under national law but with therights of mov em ent and establishment granted to a Co m m un ity national b y Ar ticles 48 and 52 of the Treaty. These rights cannot be fully effective if such a personmay be deterred from exercising them by obstacles raised in his or her country oforigin to the entry and residence of his or her spouse. Accordingly, when aI - 4294


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Community national who has availed himself or herself of those rights returns tohis or her country of origin, his or her spouse must enjoy at least the same rightsof entry and residence as would be granted to him or her under Community law ifhis or her spouse chose to enter and reside in another Member State. Nevertheless,Articles 48 and 52 of the Treaty do not prevent Member States from applying toforeign spouses of their own nationals rules on entry and residence more favourable than those provided for by Community law.

2 4 As regards the risk of fraud referred to by the United Kingdom, it is sufficient tonote that, as the Court has consistently held (see in particular the judgments inCase 115/78 Knoors v Secretary of State for Economic Affairs [ 1 9 7 9 ] E C R 3 9 9 ,paragraph 25, and Case C-61/89 Bouchoucka [1990] ECR 1-3551, paragraph 14),the facilities created by the Treaty cannot have the effect of allowing the personswho benefit from them to evade the application of national legislation and of prohibiting Member States from taking the measures necessary to prevent such abuse.

2 5 The answer to the question referred for a preliminary ruling must therefore be thatArticle 52 of the Treaty and Directive 73/148, properly construed, require 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 has gone, with that spouse, toanother Member State in order to work there as an employed person as envisagedby Article 48 of the Treaty and returns to establish himself or herself as envisagedby Article 52 of the Treaty in the territory of the State of which he or she is anational. The spouse must enjoy at least the same rights as would be granted tohim or her under Community law if his or her spouse entered and resided in theterritory of another Member State.

C o s t s

2 6 The costs incurred by the Commission of the European Communities, which hassubmitted observations to the Court, are not recoverable. Since these proceedingsI - 4295


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are, for the par t ies to the main proceedings, a s tep in the act ion pending before thenat ional court , the decis ion on costs is a mat ter for that court .

O n t h o s e g r o u n d s ,T H E C O U R T ,

in answ er to the ques t ion refe r red to it by the Hig h C ou r t o f Jus t ice (Q ue en ' sBen ch Divis ion) by orde r of 19 O ct ob er 1990, here by rules :

Artic le 52 of the Treaty and Counci l Direct ive 73/148/EEC of 21 May 1973 onthe abol i t ion o f res tr ic t ions on movement and res idence wi th in the Communi ty for nat ionals o f Member States wi th regard to es tabl i shment and the provis ion of services , properly construed, require a Member State to grant leave toenter and reside in i ts territory to the spouse, of whatever nat ional i ty , of anat ional o f that State who has gone , wi th that spouse , to another MemberState in order to work there as an employed person as envisaged by Artic le48 of the Treaty and returns to establish himself or herself as envisaged byArtic le 52 of the Treaty in the State of which he or she is a nat ional . A spousemust enjoy at least the same rights as would be granted to him or her underCommunity law i f h i s or her spouse entered and res ided in another MemberState .

D u e Jolit Schockwei le r Grv isse K apt eynM ancin i Kak our i s M oi t in ho de Alm eida Ro dr gue z Ig les ias

D iez de Velasco Zuleeg M urra y E dw ar d

Del ivered in open cour t in Lu xem bo urg o n 7 Ju ly 1992.

J.-G. GiraudRegistrar

O . D u ePresident

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Surinder Singh Original 1992 Judgement

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Transcript of Surinder Singh Original 1992 Judgement