Opinion of Advocate General
Mr President,
Members of the Court,
1. The issue raised in this case is both simple in its presentation and delicate as regards its implications. The Court is called upon to determine whether Community law grants a right of residence to a national of a nonmember country who is the spouse of a Community national when the latter returns to work in his or her own country after having worked in another Member State.
2. The facts of the case may be summarized as follows. In October 1982 Mr Singh, an Indian national, married Miss Purewal, a British national, in the United Kingdom. From February 1983 until the end of 1985 the couple resided in Germany, where they were employed.
3. Let me state first that in my view there can be no doubt as to Mr Singh's status as a spouse at the time of the deportation order, for the purposes of the application of the Community provisions relied upon.
4. Before addressing the merits of the question which has been referred to the Court, I think it is necessary to determine whether the facts of this case are such as to dictate the conclusion that in the light of the Court's case-law this must be regarded as a wholly internal situation in which Community law cannot be relied upon.
5. In the cases referred to, the persons who claimed rights in their own country based on Community legislation had not in fact worked or studied in other Member States, and it was thus obvious that in the absence of any connection with Community law their situation did not fall within the scope of the Treaty.
6. If, therefore, as I think, this case cannot simply be dealt with as a wholly internal situation, it is necessary to consider the provisions of Community law which may be relied upon by Mr Singh, that is to say, having regard to the fact that his spouse moved to the United Kingdom to work as a self-employed person, Article 52 of the Treaty and Article 1 of 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.
7. It follows from those judgments that in the Court's view Article 52 covers both the situation of workers from a Member State who have acquired rights recognized by Community legislation in another Member State and wish to avail themselves of those rights in their own country of origin and the situation in which national legislation in itself penalizes the exercise of the right of free movement.
8. Even those initial objections, however, are subject to reservations, since it is in theory necessary to take into account the possibility that Mr Singh might have obtained an unlimited right of residence or become naturalized under United Kingdom legislation if his wife had not exercised her right of free movement.
9. That is not all. Even leaving aside such a hypothesis, it seems to me that on the basis of the judgments of the Court to which I have referred it is possible to argue that the Community legislation on freedom of movement is applicable whenever a national of a Member State is in a situation in relation to his own country of origin similar to that of all other persons who avail themselves of the rights and liberties guaranteed by the Treaty and by secondary Community law.
10. As appears from the first recital in its preamble, Directive 73/148/EEC is intended to eliminate restrictions on movement and residence within the Community for nationals of Member States wishing to establish themselves or to provide services within the territory of another Member State (my emphasis).
11. It is true that the right of residence is expressed by the Community legislature as the right of nationals of one Member State to establish themselves in another Member State. However, the wording used may be explained by the fact that it is obvious that the individual Member States will not deny their own nationals the right of entry to and residence in their territory.
12. It is clear, furthermore, that in practical terms this is a very marginal case, since it is undisputed that in general States do not seek to prevent family members of their own nationals from residing in their territory, unless of course there are legitimate suspicions of evasion of immigration legislation.
13. Before concluding I should like to reply to a number of remarks and understandable concerns raised by the United Kingdom, which intervened in these proceedings.
14. Secondly, the United Kingdom states that every Member State has a legitimate interest in preventing its own nationals and their spouses from relying on Community law in order to evade the conditions laid down in national legislation.
15. Finally, the United Kingdom states that to apply Directive 73/148/EEC in this case would have paradoxical consequences, since Mr Singh's right to remain in the United Kingdom would depend not so much on his matrimonial relationship as on the continued exercise by his wife of an occupational activity.
16. In view of the foregoing considerations I therefore propose that the Court reply as follows to the question referred by the High Court of Justice:
1 Original language: English.
2 OJ 1973 L 172, p. 14.
3 OJ, English Special Edition 1968 (II), p. 475.
4 Judgment in Case 267/83 Diana v Land Berlin [1985] ECR 567, at paragraph 20.
5 Judgment in Case 175/78 Saunders [1979] ECR 1129, at paragraph 12.
6 Judgment in Joined Cases 35 and 36/82 Morson and Jhanjan v State of the Netherlands [1982] ECR 3723, at paragraphs 16 and 18.
7 Judgment in Case 180/83 Moser v Land Baden-Württemberg [1984] ECR2539, at paragraph 20.
8 Judgment in Case 298/84 Iorio v Azienda Autonoma delle Ferrovie dello Stato [1986] ECR 247, at paragraph 17.
9 Judgment in Case 20/87 Cauchara [1987] ECR 4879, at paragraph 13.
10 Judgment in Case 147/87 Zaoui v Cramif [1987] ECR 5511, at paragraph 16.
11 Judgment in Case 204/87 Bekaert [1988] ECR 2029, at paragraph 13.
12 Judgment in Joined Cases C-54/88, C-91/88 and C-14/89 Nino [1990] ECR I-3537, at paragraphs 10 and 11.
13 Judgment in Joined Cases C-297/88 and C-197/89 Dzodzi v Belgian State [1990] ECR I-3763, at paragraphs 23 and 24.
14 Judgment in Case 115/78 Knoors v Secretary of State for Economic Affairs [1979] ECR399, at paragraph 24. See also the judgment in Case 246/80 Broekmeulen v Huisarts Registratie Commissie [1981] ECR 2311, at paragraph 20; judgment in Case 292/86 Gullung v Conseils de l'ordre des avocats du barreau de Colmar et de Saveme [1988] ECR111, at paragraph 12; judgment in Case C-61/89 Bouchoucha [1990] ECR I-3551, at paragraph 13.
15 Judgment in Case 143/87 Stanton v INASTI [1988] ECR 3877, at paragraph 14.
16 Judgment in Case 81/87 The Queen v HM Treasury and Commissioners of Inland Revenue, ex parte Daily Mail and General Trust PL [1988] ECR 5483, at paragraph 16.
17 Judgment in Case 115/78 Knoors, cited above, paragraph 25.
18 Judgment in Case 53/81 Levin v Staatssecretaris van Justine [1982] ECR1035, paragraph 17; judgment in Case 139/85 Kempf v Staatssecretaris van Justitie [1986] ECR 1741, paragraph 14; judgment in Case 197/86 Brown v Secretary of State for Scotland [1988] ECR 3205, paragraphs 21 and 23; judgment in Case 334/87 Bettray v Staatssecretaris van Justitie [1989] ECR 1621, paragraph 20.
19 Judgment in Case 357/89 Raulin v Minister van Onderwijs en Wetenschappen [1992] ECR, paragraph 14.