Luxembourg, 13/09/2001 (Agence Europe) - The Court of Justice has published two press releases on the ruling by Advocate General Stix-Hackl in the MRAX case (movement against racism, anti-semitism and xenophobia) against the Belgian State, and the Mary Carpenter case against the Secretary of State for the Home Office on foreigners' right of stay in the EU.
1. The MRAX case. Since 1980, a law has regulated access to Belgian territory, residence and establishment and the expulsion of foreigners. A decree specifying how the law should be enforced fixed the conditions for recognising the right of stay and the issuance of a permit to stay, and, in 1997, a circular was issued, states the Court. It goes on to explain that MRAX had filed a request for partial cancellation of this circular with the Belgian State Council which, before enacting, put a series of questions to the Court, including that regarding the right of stay of third country nationals (i.e. nationals of non-EU countries) married to an EU Member State national and wishing to stay as part of a reunited family within the Member State where their spouse is resident (in this case Belgium).
EUROPE notes the main points of the communiqué whereby the Advocate General first of all stresses that, in the present stage of Community law, the legal status of third country nationals, family members of an EU national living in this State and who has not used his right to freedom of movement is determined exclusively according to national provisions (in this case, Belgian law) relative to family reunification. However, third Stare nationals members of the family of a citizen of the Union having made use of the rights he or she holds from the Community legal order may benefit from certain Community provisions.
The Advocate General thus proposes that the Curt of Justice answer that Member States: - may only turn back at the border nationals of a third State subjected to the visa formality, and spouses of Community citizens, trying to penetrate the territory without a document or visa, on condition that this measure is compatible with the right of the respect of family life and in particular the principle of proportionality; - may only refuse a residence permit to a third State national married to a Community citizen having illegally entered their territory, and take expulsion measures against them, on condition that these measures are compatible with the right to the respect of family life and (…) the principle of proportionality; - may neither expel nor refuse the national of a third State married to a Community citizen and having entered the territory legally because their visa is outdated at the time when they are requesting the issuance of the permit.
2. Mary Carpenter case, of the name of a Philippine national married to a Briton.
"According to the Advocate General, a third country national married to a citizen of the Union has a right of residence in virtue of Community law, if and as long as the citizen of the Union exercises his or her fundamental freedoms in Community law of cross-frontier establishment or freedom to provide services.", the press release explains.
It stressed that Mary Carpenter's husband was the sole proprietor and manager of a company settling advertising space in magazines and supplying various management and other services to the publishers of the magazines in question. The company's headquarters are in the United Kingdom but a "substantial proportion" of its activity involves clients based in other Member States. In July 1996, Ms Carpenter sent the Secretary of State for the Home Office a request to authorise her residency as the spouse of a United Kingdom national. Her request was rejected because she had not respected the length of stay permitted under her entry visa. Mary Carpenter challenged this decision at the Immigration Appeal Tribunal, which sent the case to the Court of Justice.
The recommended that the Court respond to the British judge along the lines that in a situation where a Member State national, established in that Member State, supplies services to people in other Member States and is married to someone who is not a Member State national, then the latter can use the EU 1973 Directive to have the right to stay with his/her spouse in the spouse's state of origin. It should be born in mind in this respect that the Directive has to be interpreted in the light of the freedom to supply services and also in the light of fundamental rights, particularly the right for family life to be respected. (The communiqué is available in English, German and French. Ed.)