APPEAL No. TH/6639/97 (STARRED)
(01 TH 0100)
Date of hearing: 10/10/2000
Date Determination notified: 24/4/2001
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||RESPONDENT|
Regulation (EEC) No 1612/68 of the Council
1. The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:
(a) his spouse and their descendants who are under the age of 21 years or are dependants;
(b) dependent relatives in the ascending line of the worker and his spouse.
2. Member States shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes.
Council Directive 64/221/EEC
1. The provisions of this Directive shall apply to any National of a Member State who resides in or travels to another Member State of the Community, either in order to pursue an activity as an employed or self-employed person, or as a recipient of services.
2. These provisions shall apply also to the spouse and the members of the family who come within the provisions of the regulations and directives adopted in this field in pursuance of the Treaty.
1. A decision to grant or to refuse a first residence permit shall be taken as soon as possible and in any event not later than six months from the date of application. The person concerned shall be allowed to remain temporarily in the territory pending a decision either to grant or to refuse a residence permit.
Council Directive 68/360/EEC
Member States shall, acting as provided in this Directive, abolish restrictions on the movement and residence of nationals of the said States and of members of their families to whom Regulation (EEC) No 1612/68 applies.
1. Member States shall grant the right of residence in their territory to the persons referred to in Article 1 who are able to produce the documents listed in paragraph 3.
2. As proof of the right of residence, a document entitled 'Residence Permit for a National of a Member State of the EEC' shall be issued. This document must include a statement that it has been issued pursuant to Regulation (EEC) No 1612/68 and to the measures taken by the Member States for the implementation of the present Directive. ...
3. For the issue of a Residence Permit for a National of a Member State of the EEC, Member States may require only the production of the following documents;-- by the worker:
(a) the document with which he entered their territory;
(b) a confirmation of engagement from the employer or a certificate of employment;-- by the members of the worker's family:
(c) the document with which they entered the territory;
(d) a document issued by the competent authority of the State of origin or the State whence they came, proving their relationship;
(e) in the cases referred to in Article 10 (1) and (2) of Regulation (EEC) No 1612/68, a document issued by the competent authority of the State of origin or the State whence they came, testifying that they are dependent on the worker or that they live under his roof in such country.
4. 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.
Council Directive 73/148/EEC
1. The Member States shall, acting as provided in this Directive, abolish restrictions on the movement and residence of:
(a) nationals of a Member State who are established or who wish to establish themselves in another Member State in order to pursue activities as self-employed persons, or who wish to provide services in that State;
(b) nationals of Member States wishing to go to another Member State as recipients of services;
(c) the spouse and the children under 21 years of age of such nationals, irrespective of their nationality;
(d) the relatives in the ascending and descending lines of such nationals, which relatives are dependent on them, irrespective of their nationality.
2. Member States shall favour the admission of any other member of the family of a national referred to in paragraph 1 (a) or (b) or of the spouse of that national, which member is dependent on that national or spouse of that national or who in the country of origin was living under the same roof.
2. The right of residence for persons providing and receiving services shall be of equal duration with the period during which the services are provided. Where such period exceeds three months, the Member State in the territory of which the services are performed shall issue a right of abode as proof of the right of residence. Where the period does not exceed three months, the identity card or passport with which the person concerned entered the territory shall be sufficient to cover his stay. The Member State may, however, require the person concerned to report his presence in the territory.
3. 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 has that issued to the national to whom he is dependent.
An applicant for a residence permit or right of abode shall not be required by a Member State to produce anything other than the following, namely:
(a) the identity card or passport with which he or she entered its territory;
(b) proof that he or she comes within one other classes of person referred to in Articles 1 and 4.
Council Resolution 12337/97
Noting that marriages of convenience constitute a means of circumventing the rules on entry and residence of third-country nationals,
Whereas this resolution is without prejudice to Community law,
3. Where there are factors which support suspicions for believing that the marriage is one of convenience, Member States shall issue a residence permit or an authority to reside to the third-country national on the basis of the marriage only after the authorities competent under national law have checked that the marriage is not one of convenience, and that the other conditions relating to entry and residence have been fulfilled. Such checking may involve a separate interview with each of the two spouses.
4. Should the authorities competent under national law find the marriage to be one of convenience, the residence permit or authority to reside granted on the basis of the third-country national's marriage shall as a general rule be withdrawn, revoked or not renewed.
[I]t must be observed that in so far as there is no Community definition of medical acts, the definition of acts restricted to the medical profession is, in principle, a matter for the Member States. It follows that in the absence of Community legislation on the professional practice of osteopathy each Member State is free to regulate the exercise of that activity within its territory, without discriminating between its own nationals and those of the other Member States.
As with osteopathy, so with marriage. Indeed, it is a major part of the reasoning in Diatta that
The Community legislature did not intend to deal with specific problems of family law within the context of the right to free movement. There is no common concept, shared by all member states and all individuals, as regards the substance of marital relations. To attempt to commit the Community legislature to the image of the family living 'under the same roof' or in the same dwelling goes far beyond the objectives pursued in the matter of free movement.
C. M. G. Ockelton