Law report: UK citizen's spouse not entitled to remain indefinitely

LAW REPORT v 6 May 1997

Sahota v Secretary of State for the Home Department; Zeghraba v Secretary of State of the Home Department; Court of Appeal (Lord Justice Stuart Smith, Lord Justice Otton and Lord Justice Judge) 23 April 1997

Non-European Community nationals, married to United Kingdom citizens, who enter the United Kingdom from another member state of the European Community with their spouses who are returning to the United Kingdom to work, are not thereby entitled to indefinite leave to remain.

Sarabjit Singh Sahota, a citizen of India, entered the United Kingdom with his wife, who was a British citizen with a right of abode in the United Kingdom and a citizen of the European Community. Both had been working in Germany.

His application for indefinite leave to remain, on the basis that his wife was exercising her European Community rights in returning to the United Kingdom, was granted by the Immigration Appeal Tribunal. The Home Secretary appealed.

Mohammed Zeghraba, a citizen of Algeria, entered the United Kingdom with his wife, also a British citizen with a right of abode in the United Kingdom and citizenship of the European Community, from the Republic of Ireland.

He applied for indefinite leave to remain "as the spouse of a European Community national who is exercising her right of freedom of movement as a worker under Article 48 of the Treaty of Rome". He appealed against the refusal of leave by the Immigration Appeal Tribunal.

Richard Plender QC (Treasury Solicitor) for the Home Secretary; Peter Duffy (Edward McCourt & Co, Watford).

Lord Justice Judge said that both appeals raised the issue whether spouses of citizens of the United Kingdom, who were not themselves nationals of any member state of the European Community, were entitled to be granted indefinite leave to remain in the United Kingdom, when they had entered from another member state of the Community, accompanying their spouses who had returned to the United Kingdom to work.

The Immigration Appeal Tribunal sitting in two different constitutions had reached inconsistent decisions.

It was submitted for the applicants that Article 4.4 of Council Directive 68/360, which provides:

A member of the family who is not a national of a Member State shall be issued with a residence document which shall have the same validity as that issued to the worker on whom he is dependent

gave them an entitlement to exactly the same rights as those enjoyed by their spouses, which represented an amalgam of those provided by Community law and national law.

The applicants' wives were entitled to live here, and to return if they had travelled and worked abroad. They could not be deported. Their spouses did not, on marriage, automatically become entitled to identical rights. Their entry into the United Kingdom was subject to immigation control and in certain circumstances an order might be made for their deportation.

It was submitted that the applicants were entitled to indefinite leave to remain as a matter of Community law. That was not, however, an entitlement envisaged by any relevant Community regulation or directive, and would be confined to British citizens and their spouses.

If that argument were correct, it would follow that the entitlement available to nationals of any other member state of the Community and their spouses would as a matter of Community law be different and more restricted that those available to the applicants.

That would involve a discriminatory distinction in Community law against citizens of member states other than the United Kingdom, which was contrary to the fundamental principle of non-discrimination between citizens of the Community and, where applicable, their spouses.

No authority in Community or national law had been cited in support of the proposition that the two separate systems created independently of each other by the Community and the United Kingdom should, as a matter of Community law, be treated as a single system.

Although care must be taken to apply relevant Community provisions and to give effect to EC Treaty rights, there was no sound basis for concluding that rights under Community law should be elided or amalgamated with those arising under domestic law within the territory of member states for their own nationals and their spouses. Accordingly the applicants' primary submission failed.

Kate O'Hanlon, Barrister