Opinion of the Advocate General — ECLI:EU:C:1999:470
Date: 1999-09-30
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

summary of the case-law 
of the Court, see O'Flynn (paragraph 18). 
I - 2649 
OPINION OF MR LA PERGOLA — CASE C-356/98 
tive situations governed by paragraphs 255 
and 287 of the Immigration Rules are not 
comparable. I shall concentrate on the view 
put forward by the United Kingdom Gov­
ernment. There are, in its view, two 
aspects — one is a question of substance 
and, the other, I will say, is procedural — 
which clearly show the objective difference 
between the two situations which, accord­
ing to Mr Kaba's lawyer, should in fact be 
governed by the same rules. 
2 — Rights of residence and comparison of 
the legal situations of a person 'settled' in 
the United Kingdom and a Community 
migrant worker residing there 
45. How, for the present purposes, do the 
subjective situations of a Community 
migrant and a person 'present and settled' 
in the United Kingdom, whether or not a 
United Kingdom national, differ? 80 I shall 
start by considering the first of the aspects 
mentioned by the United Kingdom Govern­
ment, with whose position the Commission 
has also associated itself. 81 As regards 
migrant nationals, it is Community law 
itself which grants them a right to reside in 
the host State, subject to the continuing 
fulfilment of certain conditions: connection 
with some economic activity, for example, 
or the status of student, provided that the 
person concerned has sufficient resources 
not to be a burden on the social security 
system of the place of residence. 82 On the 
other hand, a person 'present and settled' in 
the United Kingdom falls into a category 
created by the national legislation and 
enjoys the unconditional right of residence 
which the domestic law guarantees him. 
The latter situation is in fact described as 
that of people living in their country of 
origin: nationals of the host State 'enjoy 
comprehensive freedom of action in their 
home country, not a right to reside there for 
a specific purpose'. 83 As the Court has 
made clear, 'admittedly... a national of a 
Member State enters and resides in the 
territory of that State by virtue of the rights 
attendant upon his nationality and not by 
80 — For the purposes of these proceedings, as I have observed 
{see point 14), no importance is attached to the differences 
of status — deriving from public international law — 
between a United Kingdom national and a foreign national 
'settled' in the United Kingdom: the situations in which 
those two kinds of person find themselves may, therefore, 
be treated in the same way here (accordingly, the ruling of 
the Court in Shingara and Radiom is not relevant here. In 
that case, the Court stated that, with regard to 'a decision 
concerning entry into the country, issue or renewal of a 
residence permit or expulsion taken for reasons of public 
order or public security... [the situations of nationals of the 
host State and those of nationals of other Member States] 
are indeed in no way comparable' —Joined Cases C-65/95 
and C-111/95 [1997] ECR 1-3343, paragraphs 29 and 30. 
81 — Not only did the Commission, in considering the first 
preliminary question, repeatedly emphasise that the leave 
to remain for which Mr Kaba applied is far wider than that 
enjoyed by his wife, for Community law purposes, as a 
migrant worker, but, at the hearing — with specific 
reference to the second preliminary question and, in 
particular, the issue of the equivalence of the various 
rights of residence — it also clearly stated that it did not 
share M r Kaba's view regarding the discriminatory nature 
of the United Kingdom legislation. 
82 — In addition to the legislation and case-law mentioned in 
points 22-26 of this Opinion, see Article 8a(1) of the EC 
Treaty (now, after amendment, Article 18(1) EC) accord­
ing to which 'Every citizen of the Union shall have the right 
to move and reside freely within the territory of the 
Member States, subject to the limitations and conditions 
laid down in this Treaty and by the measures adopted to 
give it effect' (emphasis added; for a more detailed 
consideration of Article 8a(1), see points 51-61). 
83 — Opinion of Advocate General Lenz in Keed, paragraph 
II-1-(c) (emphasis added). 
I - 2650 
KABA 
virtue of those conferred on him by Com­
munity law'. 84 In other words, whilst a 
person present and settled in the United 
Kingdom enjoys a permanent right to 
remain, a migrant worker like Ms Michon¬ 
neau has a right to remain in the host State 
which is only potentially permanent; that 
right extends until the time at which she 
engages in (or intends taking up) an 
economic activity (see point 22). Moreover, 
only the holder of an indefinite right to 
remain, that is to say a 'settled' person 
(who does not yet possess United Kingdom 
nationality), may submit an application to 
become a British citizen (see point 10). 
46. As regards, in particular, rights of 
residence, it is once again Community law 
which draws a clear distinction, which it is 
appropriate to recall here: first, a migrant 
worker has an 'ordinary' right of residence 
and, second, once a migrant Community 
national has established himself in the host 
Member State, he has a permanent right of 
residence which is no longer subject to any 
condition, restriction or requirement. 85 
That new and wider right of residence 
constitutes a corollary of the right ordina­
rily enjoyed by virtue of the free movement 
of persons. In particular cases, in fact, 
Regulation No 1251/70 (the legal basis of 
which is Article 48(3)(d)) and Directive 
75/34 confer the right to remain in the 
host State, that is to say a permanent right 
of residence, on migrant workers 
(employed or self-employed) and their 
family members residing in the territory of 
a Member State other than that of origin by 
virtue of the right conferred on them by 
Article 48(3)(c) 86 and Article 52 of the EC 
Treaty, implemented by the abovemen¬ 
tioned directive and by Directive 73/148 
(see point 25). Among the cases envisaged 
by Regulation No 1251/70, we find that of 
a worker who has reached pensionable age, 
after employment, in the territory of the 
host Member State, for at least 12 months 
and has resided there continuously for 
more than three years (see Article 2(1)(a)); 
we also find the case of a worker who, 
having resided continuously in the territory 
of a Member State for more than two years, 
ceases to work there as an employed person 
as a result of permanent incapacity to work 
(see Article 2(1)(b)). The cases to which I 
refer are substantially equivalent to that of 
a person 'present and settled' in the United 
Kingdom. But it is clear that, in the main 
proceedings, the circumstances of Mr 
Kaba's spouse do not fall within any of 
the provisions just mentioned. 
47. It should be remembered (see footnote 
49), in that connection, that Article 6 (in 
84 — Singh, paragraph 22 (emphasis added). 
85 — Except, of course, those laid down by Articles 48(3), 56(1) 
and 66 of EC Treaty and the directives concerning the 
movement of foreign nationals (see point 26). 
86 — The wording of subparagraphs (c) and (d) of Article 48(3) 
shows that it is the Treaty itself which clearly distinguishes 
the legal situation of the vestee of a 'right... to stay in a 
Member State for the purpose of employment' from that of 
the vestee of the 'right... to remain in the territory of a 
Member State after having been employed in that State' 
(emphasis added). 
I - 2651 
OPINION OF MR LA PERGOLA — CASE C-356/98 
particular Article 6(2)(e)) of the EEA Order 
and paragraphs 256 and 257 of the Immi­
gration Rules — contained in the section 
entitled 'Settlement', together with para­
graph 255 — provide for the case of those 
who meet the conditions laid down by 
Regulation No 1251/70 and by Directive 
75/34, granting those persons the right to 
obtain 'indefinite leave to remain' (the 
holder of which, by that very fact, becomes 
a person 'settled' in the United Kingdom). 
In that way, national legislation entirely 
assimilates the permission to remain inde­
finitely provided for by paragraph 255 to 
the 'right to remain' provided for by 
Community law (and reflected in para­
graphs 256 and 257 of the Immigration 
Rules) and distinguishes the various situa­
tions constituting 'settlement' in the United 
Kingdom under the immigration laws from 
the Ordinary' right of residence of a 
'qualified person' within the meaning of 
the EEA Order. 
48. With regard to residence in a given 
Member State, the difference between the 
legal circumstances of the nationals of that 
State and those of nationals of other 
Member States is such that Community 
law itself empowers the Member States to 
treat their own nationals (and their family 
members) in a more favourable manner. 
And it is in the light of the foregoing 
consideration that, in my opinion, the 
ruling of the Court of Justice in Singh must 
be read: since 'a national of a Member State 
enters and resides in the territory of that 
State by virtue of the rights attendant upon 
his nationality', 'Articles 48 and 52 of the 
Treaty do not prevent Member States from 
applying to foreign spouses of their own 
nationals rules on entry and residence more 
favourable than those provided for by 
Community law'. 87 The link between indi­
vidual Member States and their own 
nationals is certainly closer than and, in 
any event, different from that which each 
individual country of the Community, 
under the Treaty, has established with the 
nationals of the other Member States. 
Hence, as far as rights of entry and 
residence are concerned, differing treat­
ment for the two categories of nationals 
does not necessarily involve unlawful dis­
crimination. 
49. The judgment in Reed can, if examined 
closely, be reconciled with the statements of 
the Court in Singh and with the foregoing 
reconstruction. Mr Kaba points out that, in 
Reed, the Court found Netherlands legisla­
tion to involve discrimination on grounds 
of nationality in not granting a right of 
residence to the unmarried companion of a 
Community migrant worker residing in the 
87 — Paragraphs 22 and 23 (emphasis added); the special 
measures on the movement of foreign nationals prompted 
by reasons of public policy or public security were not at 
issue at all in the circumstances of the Singh case: all the 
Court's dicta must therefore in my opinion necessarily 
relate to the normal legal aspects of rights of residence, and 
have no bearing on the specific features of public 
international law relating to nationals residing in their 
country of origin. 
In Singh, Advocate General Tesauro observed that 'as a 
matter of principle the spouse of a national established in 
his own country will undoubtedly be able to take 
advantage of national legislation, which will normally, by 
sole virtue of the existence of a matrimonial relationship, 
grant him more extensive and enduring rights than those 
granted under Community legislation' (point 15 of the 
Opinion). 
In Reed, Advocate General Lenz stated that the prohibition 
of discrimination cannot be applied tout court to rights of 
residence in view of the far-reaching differences in the legal 
circumstances of those who have never left their own 
country and of migrant Community nationals (see point 
II-1-c of the Opinion). 
I - 2652 
KABA 
Netherlands. That was because the same 
right was available to the unmarried com­
panion of a Netherlands national or the 
holder of an unlimited right of residence 
(refugee or person granted asylum). 88 I do 
not deny that, as regards residence once 
again, the circumstances of that person 
(similiar to those of the Netherlands 
national) 89 appear to come close to those 
of a person who is 'present and settled' (in 
turn, not far removed from the circum­
stances of a British national). 90 The fact is, 
however, that in criticising the discrimina­
tory nature of the national measure, the 
Court confined itself to drawing attention 
to the difference of treatment as between 
(companions of) Community nationals as 
compared with that of (companions of) 
Netherlands nationals. Thus, the Court did 
not expressly consider the arguments 
whereby the Netherlands Government, in 
response to Mrs Reed's complaint, drew 
attention to the substantial difference 
between the rights of residence of its own 
nationals and those of Community migrant 
workers. Indeed, in Reed the Court, in my 
opinion, concluded that a typical case of 
discrimination on grounds of nationality 
arose in that — as noted by Advocate 
General Lenz in his Opinion in Reed (see 
point II-1-a) — the Member State con­
cerned had failed to show conclusively 
why the difference of treatment of Com­
munity migrant workers was attributable 
to their different legal situation in relation 
to rights of residence rather than solely in 
relation to their nationality as such. 91 
50. In this case, the United Kingdom offers 
us a clear and persuasive explanation for 
the regime adopted to cover the situations 
provided for respectively by paragraphs 
255 and 287 of the Immigration Rules; 
far from constituting discrimination (albeit 
indirect, it might be said) based on nation­
ality, the longer period of prior residence 
required by paragraph 255 clearly derives 
from the fact that, as regards the right of 
residence, the case of a migrant worker was 
to be appraised and regulated, as it in fact-
was, differently from that of a person 
'present and settled' in the United King­
dom. 92 According to the United Kingdom 
Government, essentially, in contrast to the 
case of a Community migrant worker 
holding an ordinary right of residence 
88 — See the Opinion of Advocate General Lenz (points A-1 and 
A-6) and the second preliminary question (paragraph 7 of 
the judgment). 
89 — With the exception of removal measures — which, more­
over, are unconnected with the issues in these proceed­
ings — which may he adopted only in relation to foreign 
nationals. 
90 — In this case too, subject to the exception of expulsion 
measures; only a British national, in fact, enjoys a 'right of 
abode' in the United Kingdom (sec point 4). 
91 — Martinez Sala displays analogies with the Reed case in that 
the Court held to he discriminatory on grounds of 
nationality — albeit by virtue of other provisions, namely 
Article 6 (now, after amendment, A r t i c l e 1 2 EC) and 
Article 8(2) of the EC Treaty (now, after amendment. 
Article 17(2) EC) — a national provision which, it is true, 
granted a social benefit to any person residing lawfully in 
the territory of the Member State concerned, but subject to 
the further condition imposed only on nationals of other 
Member States of possession of a resilience permit. As in 
Reed, in Martinez Sala the Court clearly considered to be 
analogous the legal circumstances of residence of nationals 
of the host State and those of migrant Community citizens 
living there (whatever the basis of their residence) in that 
the national provision i n question did not draw a 
distinction based on the 'intensity' of the rights of 
residence enjoyed respectively by the two categories (see 
paragraphs 49 and 6.1). 
9 2 — 'Unless it ts objectively justified and proportionate to its 
ann, a provision of national law must be regarded as 
indirectly discriminatory if it is intrinsically hable to affect 
migrant workers more than national workers... '. Meints 
(paragraph 45); to the same effect, see O'Flynn (paragraph 
20). 
I - 2653 
OPINION OF M R LA PERGOLA — CASE C-356/98 
under the EEA Order (and the Directive), a 
foreign national 'settled' in the United 
Kingdom has established close links with 
the host country, having normally spent a 
continuous period of four years there. A 
fortiori, a British national, as such, enjoys 
in his own country a permanent and 
unconditional right of residence. 93 More­
over, even a Community migrant worker, 
who, in the view of the national legislature, 
has enduring links with the United King­
dom, is entitled to apply for and obtain 
'settlement'. Paragraph 255 of the Immi­
gration Rules in fact presupposes that a 
person who has remained in the country for 
four years is established there. That clari­
fies the reason for the reduction, for the 
purposes of applications to reside for an 
indefinite period, of the period of prior 
residence laid down for a person applying 
to remain indefinitely in order to join a 
spouse who is already a 'settled' person. It 
was not, on the other hand, decided — and 
that choice does not seem to me to be 
unreasonable — that after only 12 months 
after entry into the United Kingdom a 
migrant worker had established himself in 
the host country to such an extent that a 
spouse wishing to follow him should be 
given the same treatment as that accorded 
to the spouse of a person already settled in 
the country. Community law too, it should 
be remembered, makes the right of resi­
dence for an indefinite period conditional 
upon attainment of a sufficient degree of 
integration into the host State, which is 
presumed to exist only after completion of 
an adequate period of continuous resi­
dence, together with fulfilment of other 
requirements in certain cases. 9 4 95 
93 — I refer to the Court's dicta in Singh and the views of 
Advocate General Lenz in Reed set out in point 45 of this 
Opinion. 
94 — See Regulation No 1250/71, Directive 75/34, the Proposal 
(cited in footnote 68), whereby family members of a 
migrant worker, who are nationals of third countries, are 
granted the right to continue to reside 'in the Member State 
of residence if the marriage is dissolved, on condition that 
they have lived in that country [with spouse] for a period 
of three consecutive years' (new Article 10(4) of the 
regulation — emphasis added; see also the eighth recital 
in the preamble to the proposal), and the Proposal for a 
European Parliament and Council directive amending 
Directive 68/360/EEC on the abolition of restrictions on 
movement and residence within the Community for 
workers of Member States and their families, submitted 
by the Commission on 14 October 1998 (OJ 1998 C 344, 
p. 12, hereinafter 'the second proposal', in view of the fact 
that there was an earlier one — see footnote 116) which, if 
adopted, will insert in the Directive a new Article 4a 
taking account of the abovementioned amendments made 
by the Proposal to Article 10 of the Regulation (see 
Article 1(4) of the first proposal), but which in turn adds 
that 'where the family members are not economically 
active, the [permanent] right of residence is recognised 
provided that they can provide evidence that they have 
sufficient financial resources... and that they have health 
insurance'. 
The Proposal also provides for the case of the spouse of a 
migrant worker who works; for such a person the new 
Article 11 of the Regulation will grant a permanent right 
of residence in the host State 'if the marriage is dissolved, 
on condition that [the applicant] has lived in the territory 
[with spouse] for a period of at least five consecutive years' 
(emphasis added). 
Finally, under the second proposal, in the event of the 
application of removal measures on grounds of public 
policy, public security or public health, the Member States 
must 'take into account the degree to which the person 
affected by such measures has been integrated into their 
territory, with a view to possibly restricting the extent of 
such derogation' (see Article 1(9), which replaces the 
present Article 10 of the directive; emphasis added). 
95 — There is no shortage of further reasons, in my opinion, for 
concluding that the course followed by the United King­
dom legislature is not unlawfully discriminatory. The 
Immigration Rules envisage several waiting periods before 
there is any possibility of indefinite leave to remain being 
granted, but the conditions imposed by paragraph 255 are 
Ín any event advantageous to Community migrant work­
ers: they are more favourable for nationals of other 
Member States (and their family members) than those 
contained in the Community legislation. Regulation 
N o 1251/70 and Directive 75/34 provide for a series of 
very specific cases of 'establishment' (to which foreseeably 
will be added those of the Proposal and the second 
proposal referred to in footnotes 68 and 94 respectively) in 
which a migrant worker and his family may acquire the 
right to remain in the host State permanently, all of which 
are provided for in and regulated oy the Immigration Rules 
(see footnote 49). The case specifically provided for in 
paragraph 255 was provided for solely and independently 
by the national legislature: it does not in fact reflect any 
course of action required by the Regulation or the 
Directive. Although imposing the condition of an unin­
terrupted period of residence of four years, the United 
Kingdom rules go on to add the opportunity for migrant 
workers (and their family members) to 'settle' in the United 
Kingdom. The Community legislature itself, aware of the 
narrowness of the cases provided for by Regulation 
Ñ o 1251/70 and Directive 75/34, considered it necessary 
to make clear that the rules laid down therein 'shall not 
affect any provisions laid down by law, regulation or 
administrative action of any Member State wnich would 
be more favourable to nationals of other Member States' 
(see, in both cases, Article 8(1); emphasis added). 
As regards rights of residence in general, in Martinez Sala I 
observed that similar powers are available to individual 
Member States — of course, 'solely in their own terri­
tory' — by virtue of the fact that Article 8a(2) of the EC 
Treaty (now, after amendment, Article 18(2) EC) confers 
on the Council the power to adopt provisions to facilitate 
the exercise, in particular, of the right to reside freely in the 
Member States. 
I - 2654 
KAISA 
3 — Effects of the entry into force of the 
Treaty on European Union 
51. I have indicated the reasons for which 
the legal situation of persons 'present and 
settled' in the United Kingdom differs from 
that of a Community migrant worker, such 
as Ms Michonneau in this case, who 
arrived in that country shortly before her 
husband applied for indefinite leave to 
remain. The problem arises at this stage 
of verifying whether the entry into force of 
the Treaty on European Union, on 
1 November 1993 (that is to say before 
the events giving rise to the main proceed­
ings), has in any way relevant to these 
proceedings changed Ms Michonneau's 
legal situation. Today, the EC Treaty con­
tains Article 8a (introduced by the Treaty 
on European Union and now, after amend­
ment, Article 18 EC). 96 In other proceed­
ings the opinion has been canvassed that 
the provisions of that article represent a 
'considerable qualitative step forward' 
from — or, it has even been said, a 'move 
beyond' — the earlier view of freedom of 
movement linked, if not inevitably confined 
to, the exercise of economic activities (see 
Articles 48 to 66 of the EC Treaty) or 
conditional upon the availability of suffi­
cient resources not to be a burden on the 
social security scheme of the host State (see 
the residence directives), so much so that 
today the acquis communautaire would be 
difficult to apply to the rights of residence 
of citizens of the European Union. 9 7 
52. Let us not forget, however, the essence 
of the question from the national court, 
namely whether a Community national, of 
whom Mr Kaba was the spouse, may in the 
host State exercise a full right of residence, 
in other words an absolutely unconditional 
right: only if that is the case could the right-
in question be equal to that granted by the 
United Kingdom legislature to its own 
nationals or to persons 'present and settled' 
there, negating the alleged discrimination 
as regards enjoyment of the social advan­
tage at issue. The question is therefore 
concerned with the United Kingdom's 
allegedly unlawful act in failing fully to 
treat in the same way both the position of 
its own national or the position — which is 
equivalent — of a person 'present and 
settled' there and that granted to Commu­
nity nationals, so as to eliminate the 
difference in the requirements of prior 
residence which their respective spouses 
must have satisfied before being entitled to 
apply for indefinite leave to remain. The 
Court has not yet had an opportunity to 
rule on the point at issue here, namely the 
equal standing — and therefore, I repeat, 
the alleged unlimited nature — of the free­
dom to remain which Mr Kaba seeks to 
have extended to other Community nation­
als in the same way and on the same basis 
as that made available by the host State to 
its own nationals. 98 
96 — Article 8(1 ) of the EC Treaty established citizenship of the 
Union, stating that 'Ľvery person holding the nationality of 
a Member State shall he a citizen of the Union'. Under 
Article 8a( 1 ) of the HC Treaty, 'Hverv citizen of the Union 
shall have the right to move and reside freely within the 
territory of the Member States, subject to the limitations 
laid down in this Treaty and by the measures adopted to 
give it effect'. 
9 7 — S e e the Opinion of Advocate General Ruiz-Jarabo Colo-
mer in Sbingara and Radiom (paragraph V I ) and, above 
all, that of Advocate Ceneral Cosmas m Wijscnbeek (cited 
in footnote 36; points 78-104). 
98 — See Martinez Sala, paragraph 60, and Wijsenbeek. para­
graph 43. 
I - 2655 
OPINION OF MR LA PERGOLA — CASE C-356/98 
53. For my part, I shall not say that the 
Maastricht and Amsterdam Treaty provi­
sions support such a claim. That conclusion 
follows from a closer examination, in 
relation to the present question, of Arti­
cle 8a(1) of the EC Treaty. It is hardly 
necessary to recall the legislative context of 
that provision. The preamble to the Treaty 
on European Union announces the aim of 
marking 'a new stage in the process of 
European integration...', and reaffirms the 
Objective [of the Member States] to facil­
itate the free movement of persons'. Article 
B of that Treaty (now, after amendment, 
Article 2 EU) includes among the objectives 
of the Union that of 'strengthening] the 
protection of the rights and interests of its 
Member States through the introduction of 
a citizenship of the Union'. That citizenship 
has in fact been created. The Treaty now 
thus embodies the idea of a common status 
which individuals, whose subjectivity is 
recognised in the law of the Union (see 
Article 8 of the EC Treaty), acquire merely 
by being nationals of a Member State. And 
it is a fertile idea: on the basis of the Union 
between Member States, as historical 
experience teaches us, the union of peoples 
which the Treaties of Maastricht and 
Amsterdam envisage may grow and 
develop: the preamble to the Treaty on 
European Union refers to the decision 'to 
continue the process of creating an ever 
closer Union among the peoples of Europe'. 
The contribution made to European con­
struction by the introduction of the new 
citizenship is not, however, merely poten­
tial. 
54. Let me repeat what I stated in other 
proceedings regarding the certain and 
immediate impact of citizenship of the 
Union upon the sphere in which the 
prohibition of discrimination on grounds 
of nationality operates. The right to the 
same treatment as the State of residence 
grants its own nationals may, in my opi­
nion, be claimed by an individual, regard­
less of any status or standing as a user of 
the market, thanks to the situation of the 
citizen — a European citizen — which 
derives from the Treaty and is of impor­
tance for the application of that right to 
him. That is what I said in Martínez Sala. 99 
In that case, however, I also noted that 
citizenship of the Union cannot in any 
event be indiscriminately superimposed on 
national citizenship, or, therefore, provide a 
basis for any claim to enjoy additionally 
those rights which must be regarded as 
reserved to nationals of the State of resi­
dence, because they constitute an exclusive 
privilege associated with their national­
ity. 100 That is a consideration which 
emerges from the clear wording of the 
Treaties. 1 01 I must repeat it in this case: the 
prohibition of discrimination laid down by 
the Regulation in relation to social advan­
tages is not intended to, and cannot, bind 
the United Kingdom legislature to fulfil an 
obligation which the Treaty, and indeed the 
rules on citizenship of the Union, do not 
allow to be imposed on it, such as, 
precisely, the obligation to place on an 
unqualified equal footing the 'right of 
99 — See point 23 of my Opinion. 
100 — See my Opinion in Martínez Sala, paragraph 20. 
101 — In the Treaty of Amsterdam care was taken to make it 
clear that citizenship of the Union does not supersede 
national citizenship, which, therefore, retains its own 
special features (including those deriving from public 
international law): at the close of Article 8(1) of the EC 
Treaty, the words were added 'Citizenship of the Union 
shall complement and not replace national citizenship'. 
I - 2656 
KABA 
abode' upon which is clearly impressed the 
stamp of national citizenship and the right 
of residence of a Community citizen. 102 
Nor is Mr Kaba's thesis comforted by the 
fact that the freedom to reside in every 
Member State, in addition to freedom of 
movement, has been expressly provided for 
as a right deriving from citizenship of the 
Union by a provision of the Treaty. To 
ensure a correct reading of that provision it 
is necessary to have regard to the consid­
erations and clarifications which I shall set 
out below, even if it is recognised that it 
was adopted to deal with a fundamental 
freedom, a right of a constitutional nat­
ure. 103 Here the issue, the only issue, is 
whether Article 8a( 1 ) of the EC Treaty has, 
preceptively, extended to all citizens a right 
of residence which by definition, through­
out the Union, is free of any temporal 
limitation. However, the provision which 
enunciates that right nevertheless sur­
rounds the exercise of it by specifically 
defined limitations, which must be 
observed whenever it is sought — as, in 
my opinion, is certainly possible — to rely 
on its direct effect. 104 They do, it is true, 
have an impact. But they have been 
imposed by the primary source of law of 
the Union. The interpreter, like it or not, 
cannot ignore them. 
55. The law as it stands is conducive to the 
conclusion that, in itself, the EU Treaty was 
not very innovative in the matter of resi­
dence in the sense contended for by Mr 
Kaba, in so far as the Council is entrusted, 
in the future and by unanimous decision 
(co-decision with the European Parlia­
ment), 105 with the delicate task of facil­
itating the exercise by citizens of the Union 
of the right to reside freely in the territory 
of the Member States (see Article 8a(2)). 
Furthermore, the travaux préparatoires foi-
lhe future Treaty on European Union show 
that, at least initially, the possibility was 
considered of establishing citizenship of the 
Union involving the 'right of complete 
freedom of movement and residence', 106 
or 'freedom of movement and residence 
irrespective of engagement in economic 
activity', 107 or full freedom of move­
ment, 108 the intention being to 'develop' 
102—The concept of a person 'present and settled' in the 
United Kingdom, when not applied, ns it most often the 
case, to a British citizen, is treated by national law as 
being equivalent to that of a British citizen, except for the 
possibility of expulsion from the territory of the State (sec 
point 14; see also the considerations in footnote 80). That 
solution is justified by the importance attached to 
establishment in the country, and therefore the link with 
the country, of the persons concerned, and docs not, 
either, run counter to any provision of Community law: it 
seems to me obvious that Mr Kaba cannot criticise it as 
being discriminatory. 
103 — See the Opinion of Advocate General Cosmas in WIJSEN-
beck, points 81 and 85. 
104 — See to that effect, amongst others, A. Mattera, 'Civis 
europacus sum: citoyenneté européenne, droit de circula­
tion et de séjour, applicabilité directe de l'article 8 A du 
traité CF.', in R.M.U.E., 1998, No 3, p. 5. 
105 — Originally, Article 8a(2) provided that the Council was to 
decide following a mere concurring opinion from the 
European Parliament; following an amendment made by 
the Treaty of Amsterdam, signed on 2 October 1997, 
Article 8a(2) of the EC: 'treaty provides as follows: 'The 
Council may adopt provisions with a view to facilitating 
the exercise of the rights referred to in paragraph 1; save 
as otherwise provided in this Treaty, the Council shall act 
in accordance with the procedure referred to in Arti­
cle 251 (ex Article 189b, cited above, in the Amsterdam 
treaty), ' the Council shall act unanimously throughout 
this procedure.' 
106 — Session of the European Council, Dublin of 25 and 
26 June 1990, Annex I on political union, Conclusions ol 
lhe Sessions of the European Council ( 1975-1990), p . 388 
(see U.U. Jessurun d'Ohveira, European Citizenship: its 
Meaning, its Potential, in J. Monar-W. Ungerer-W. Wes­
sels, The Maastricht Treaty on European Union, Hur­
onean Inlcrumversity Pressi Brussels, 1993, pp. 81 and 
82, and published also in R. Dehousse, Europe after 
Maastricht: an ever closer Vinoni, Beck, Monaco, 1994, 
p. 126; hereinafter, references will be to the page 
numbering of the first version). 
107 —Session of the European Council Runic, 13 and 
14 December 1990, on. cit., p. 416 (see Jessurun 
d'Ohveira, op. cit., p. 82). 
108 — According to a proposal contained in the document 
entitled 'Towards a European citizenship', drawn up by 
the Spanish Government in preparation for the Maas­
tricht Summit of 7 Eebruary 1992 (see Jessurun d'Oh­
veira, op. cit., p. 83). 
I - 2657 
OPINION OF MR LA PERGOLA — CASE C-356/98 
the concept of European citizenship. 109 For 
its part, the Commission has suggested the 
following wording: 'Every Union citizen 
shall have the right to move and reside 
freely within Union territory, without limits 
as to duration, whether or not he pursues a 
gainful occupation'. 110 Article 8a(1) of the 
EC Treaty now provides for the right of 
free residence in the Union by means of the 
following words: 'subject to the limitations 
and conditions laid down in this Treaty and 
by the measures adopted to give it effect'. 
In that way the provision in question, it 
must be concluded, refers to the pre­
existing provisions, such as those of the 
EC Treaty itself (see Articles 48 to 66), as 
well as the provisions of, inter alia, the 
Regulation, the Directive and the residence 
directives. The insertion of the limitations, 
in those terms, in the text of Article 8a(1) 
therefore means that freedom of residence 
is still linked to the exercise of an economic 
activity (Articles 48 to 66 and secondary 
implementing legislation) or to the avail­
ability of sufficient resources (residence 
directives), as well as being subject to the 
limitations indicated in the directives con­
cerning the movement, that is to say 
expulsion, of foreign nationals. 
56. If Article 8a(1) had in fact created an 
'absolute' right of residence identical to 
that enjoyed by the citizens of the indivi­
dual Member States, Union citizens who 
had emigrated could no longer be expelled 
from the host Member State and the 
directives on the movement of foreign 
nationals, if not repealed, would at least 
have had to reflect that change (none of 
Articles 48(3), 56(1) and 66 of the EC 
Treaty has been amended). Moreover, the 
Court has continued to give rulings on 
those directives in preliminary-ruling pro­
ceedings under Article 177 of the EC 
Treaty (now Article 234 EC) without mak­
ing the slightest reference to the Treaty on 
European Union, thereby indicating that it 
does not consider that, when it came into 
force, they had become obsolete. 111 
57. Similar considerations apply to the 
residence directives, which have not been 
amended or repealed, and in relation to 
which the Court has recently given judg­
ment in an action brought by the Commis­
sion under Article 169 of the EC Treaty 
(now Article 226 EC). 1 1 2 Similarly, Arti­
cles 48 to 66 of EC Treaty (and the 
directives and regulations implementing 
them) would have been amended conse­
quentially; after all, the Treaty on Eur­
opean Union was based on Article 49 of the 
EC Treaty (now, after amendment, Arti­
cle 40 EC) which places an obligation on 
the Council to adopt the measures neces-109 — Meeting of the European Council in Rome, 13 and 
14 December 1990, loc. cit. For further details of the 
intergovernmental conference on political union and a 
succinct description of the documents exchanged by the 
participants, see also E.A. Marias, From Market Citizen 
to Union Citizen, in E.A. Marias, European Citizenship, 
EIPA, Maastricht, 1994, p. 1 and pp. 5-9. 
110 — That is the less restrictive wording suggested for Article 
X4 in the Opinion of the Commission of the European 
Communities of 21 October 1990 on the proposal for 
amendment of the Treaty establishing the European 
Economic Community with a view to political union, in 
the EC Bulletin, Supplement N o 2, 1991, p. 7 1 , at p. 81 . 
1 1 1 — S e e Case C-175/94 Gallagher [1995] ECR 1-4253, 
Shingara and Radiom, Pereira Roque, and Calfa. 
112 — See the judgment in Case C-96/95 Commission v 
Germany [1997] ECR 1-1653, dealing with an applica­
tion of 24 March 1995, which shows that the Commis­
sion itself considers that Directives 90/364 and 90/365 
(found to have been infringed by the Federal Republic of 
Germany) are still in force. 
I - 2658 
KABA 
sary progressively to facilitate the free 
movement of workers, as defined in Arti­
cle 48. And with regard to those EC Treaty 
provisions as well — and also, for example, 
the Regulation and the Directive — the 
case-law of the Court has not ceased to 
develop without there being the slightest 
hint that, for example, the judgment in 
Antonissen — which upheld the right of the 
Member States to impose reasonable limits 
(in that case, six months) on the period of 
residence of a person seeking employment 
in a Member State other than that of his 
origin (see point 22) — is to be regarded as 
superseded; once again, I believe, this 
shows that Article 8a(1) does not, in itself, 
constitute a considerable qualitative step 
forward. 
58. And again, if migrant Union nationals 
now enjoy a right of residence which is not 
subject to any condition, it is not clear 
why — following annulment of Directive 
90/366 I 1 3 — the Council, only three days 
before the entry into force of the Treaty on 
European Union, adopted in its present 
terms Directive 93/96 on the right of 
residence for students (see point 22). It 
would not seem very meaningful to adopt a 
directive providing for a right of residence, 
limited to the period of training followed 
and conditional upon the availability of 
health insurance and sufficient resources, if, 
in that respect, it was destined to be 
superseded three days later. 1 1 4 Moreover, 
certain recent proposals — including the 
proposal mentioned in footnote 68 — con­
taining amendments to the Regulation and 
to Directives 68/360 and 73/148 do not rely 
on Article 8a(1) as the source of a 'new' 
right of residence; instead, they reflect, for 
example, the Court's decisions in Levin 115 
and Antoiiissen, recognising their present 
validity. 116 As well as the Commission (the 
author of those proposals), the European 
Parliament and the Economic and Social 
Committee have also demonstrated that 
they do not consider Directives 68/360 and 
113 — Directive 90/366/EEC of 28 June 1990 on the right of 
residence for students (OJ 1990 L 180, p. 30), annulled 
by the Court because of an incorrect legal basis, namely 
Article 235 of EC Treaty (now Article 308 EC), rather 
than the second paragraph of Article 6 of the EC Treaty 
(now, after amendment . Article 12 EC:); see Case 
C-295/90 Parliament v Council |1992 | ECR I-4193; the 
Court, however, upheld its effects pending the adoption 
of a new directive. 
114 — Other provisions of that directive, and of all the resilience 
directives, do not in any event appear to have been 
superseded by Article 8a(l). A particular example is the 
right of residence of the spouse and dependent children of 
a student who, as citizens of a third country, do not fall 
within the scope of Article 8a( 1 ), winch is concerned only 
with citizens of the Union. 
115 — See Case 53/81 LeVIN [1982| ECU 1035, paragraph 9, in 
which the Court held that 'the rights deriving from the 
principle of freedom of movement for workers and more 
particularly t h e r i g h t to... stay in the territory of a 
Member State are |also) linked to the status of a worker 
or of a person pursuing an activity as an employed person 
or destrous of so domg(emphasis added). 
116 — Sec the Proposal for a European Parliament and Council 
directive amending Directive 68/360/EEC on the aboli­
tion of restrictions on movement and residence within the 
Community for workers of Member States and their 
families and Directive 73/14K/EEC on (he abolition of 
restrictions on movement and residence within the 
Community for nationals of Member States with regard 
to establishment and the provision of services {OJ 1995 
C 307, p. 18; hereinafter the 'first proposal'). 
See also the second proposal (cued in footnote 94), which 
provides, first, for a new first sentence of Article 2(1) of 
the Directive, requiring the Member States to grant 
Community nationals 'the right to leave their territory m 
order to seek employment (emphasis added); (to the 
same effect, see the amendments to Article 1(1) of the 
Regulation referred to in the proposal, cited in footnote 
68, to which the second proposal expressly refers), and, 
secondly, introduces a new Article 6(4) and a new 
Article 8(1 )(d) of the Directive, whereby (a) a worker 
who is unemployed has the right to automatic renewal of 
his residence permit for periods of at least six months as 
long as he is seeking work, and (b) if the search (or 
employment extends beyond six months, the host Mem­
ber State is granted the right to 'ask the ]ob-seeker to 
prove that he is actwely looking for work and that he has 
reasonable chance of being offered employment' (empha­
sis added; see Antomissen, paragraph 21). 
I - 2659 
OPINION OF M R LA PERGOLA — CASE C-356/98 
73/148 to have been repealed: in the course 
of the legislative procedure for their 
amendment, they did not raise objections 
to the retention of a conditional right of 
residence, as expressed in the provisions for 
the implementation of Articles 48 to 66 of 
the EC Treaty.117 
59. It also seems to me that some impor­
tance may be attached to the contents of a 
Commission report on the operation of the 
Treaty on European Union: 118 'Citizens of 
the Union have not been given general 
rights of freedom of movement and resi­
dence: the exercise of these rights is subject 
to the "limits and conditions" laid down by 
Community law.... [W]hen it comes to the 
right of residence, the Treaty refers back to 
a complicated series of directives setting 
out the often restrictive conditions to which 
each category of persons is subject.... In 
practice, therefore, the Treaty has made no 
improvement at all on what went on 
before. As... residence [is a] right[...] of 
the individual, ordinary citizens' expecta­
tions can only have been disappointed'. 119 
A clear view of the limitations still affecting 
the right of residence of migrant Commu­
nity nationals also emerges from the Wes­
tendorp Report of 1995, 120 the Veil Report 
of 1997, 121 and a series of recent Commis­
sion measures. 122 123 
117 — See the Opinion of the Economic and Social Committee 
on the first proposal (OJ 1996 C 174, p. 40), the 
legislative resolution containing the European Parlia­
ment's Opinion on the first proposal (OJ 1996 C 347, 
p. 58), and the Opinion of the Economic and Social 
Committee concerning, inter alia, the proposal (see 
footnote 68) and the second proposal (OJ 1999 C 169, 
p. 24, cited in footnote 94); in the latter, it is noted that 
the objective has not yet been achieved of 'full exercise of 
the right of Union citizens to move and reside freely 
throughout the EU' (point 2.3.1). 
118 — Report on the Operation of the Treaty on European 
Untoti, of 10 May 1995, SEC(95) 731 final — http:// 
e u r o p a , eu . i n t / a g e n d a / i g c - h o m e / e u - d o c / c o m m i s s n / 
reports.html. 
119 — See part I, section I-A.1, points 8 to 10. 
120 — Progress Report from the Chairman of the Reflection 
Group on the 1996 Intergovernmental Conference, of 
1 September 1995, SN 509/1/95 REV 1 (REFLEX 10), in 
http://europa.eu.int/en/agenda/igc-home/eu-doc/reflect/ 
west_fr.html. In order to 'develop' citizenship of the 
Union, the Westerndorp Report suggests the 'deepening' 
of specific rights, by, in particular, securing an 'unrest­
ricted' freedom of residence (see p . 18). 
121 — Report of the High Level Panel on the Free Movement of 
Persons, chaired by Mrs Simone Veil, presented to the 
Commission on 18 March 1997, EUR-OP, Luxembourg, 
1 9 9 8 , in p a r t i c u l a r C h a p t e r I (see a lso h t t p : / / 
europa.eu.int/comm/dgl5/en/people/hlp/summ.htm); that 
report makes a further 80 recommendations to remedy 
the problems noted. 
122 — Second Report from the Commission on Citizenship of 
the Union, of 27 May 1997, COM(97) 230 final, 
according to which the right of residence referred to in 
Article 8a(1) does not constitute a 'new right' introduced 
by the Treaty on European Union; rather, that right is 
examined in the chapter concerning rights conferred 
before the signing of that Treaty, with all the limitations 
attaching to them (see p. 4 and section II.4.1). 
Plan of action for the Single Market: Communication 
from the Commission to the European Council, presented 
on 4 June 1997 by Mr Mont i , a Member of the 
Commission, CSE(97) 1 final. 
Commission Communication to the European Parliament 
and the Council on the follow-up to the recommenda­
tions of the High-Level Panel [the Veil Group] of the Free 
Movement of Persons, of 1 July 1998, COM(98) 403 
final, which speaks of the need to render more uniform 
the legal status of all Community nationals in the 
Member States, whether or not engaged in an economic 
activity. 
123 — A realistic reading of Article 8a(1) of the EC Treaty is 
reasonable in the light of what seems to be the constant 
preoccupation of the Member States: that the difference 
in social benefits offered by the States, which has not yet 
been harmonised at Community level, encourages mass 
migrations. That view had already been expressed in the 
Adonnino Report, approved by the European Council: 
'evidence of sufficient resources to live on as a condition 
for unhindered residence... seems indispensable to avoid 
migration motivated only by economic considerations, 
because in particular the European social security systems 
have not been harmonised' (Adonnino Report presented 
to the European Council, Brussels, 29 and 30 March 
1985, EC Bulletin, supplement N o 7, 1985, p. 9, in 
particular at p. 14). Requiring as they do proof of the 
availability or sufficient means of support and health 
insurance, the residence directives — the last of which 
was adopted at the end of 1993 — illustrate that 
preoccupation. That view has been expressed by, for 
example, R. Adam, Prime riflessioni sulla cittadinanza 
dell'Unione, in Riv. dir. int., 1992, p. 622, at p. 639. 
I - 2660 
KABA 
60. The Court of First Instance of the 
European Communities, 124 the prevailing 
academic view, 125 and certain decisions of 
national courts 126 incline towards a read­
ing of Article 8a(1) of the EC Treaty which 
does not overlook the latter part thereof. 
All this does not change the fact that 
Article 8a, even as worded at present, apart 
from its obvious political importance, 127 
fulfils an important specialised legal func­
tion. Paragraph 2 of that provision has 
without doubt provided a specific legal 
basis for progress with future action by the 
Community to facilitate the free movement 
of 'non-active' persons, obviating the need 
for recourse to Article 235 of the EC Treaty 
(see footnote 113). 
61. In conclusion, with regard to the sub­
ject-matter of these proceedings and the 
legal situation in which, at the present stage 
of Community integration, a Community 
migrant citizen like Ms Michonneau finds 
herself, it does not yet appear possible to 
say that the 'Community' rights of resi-
124 —Case T-66/95 Kuchlenz-Winter v Commission [1997] 
ECR II-637, paragraphs 44-48. 
125 — With the exception of isolated voices (see E.A. Marias, 
op. cit.; E Menegazzi Munari, Cittadinanza europea: una 
promessa da mantenere, Giappichelli, Turin, 1996, in 
particular p. 177, where a 'non-selective' reading of the 
provision is justified on humanitarian grounds, to the 
effect that it is 'not permissible to exclude less capable 
individuals from the enjoyment of such freedom merely 
because of their already precarious existence'), the view I 
have expressed is shared (see P. Alston-J. H.H. Weiler, An 
'Ever Closer Onion' in Need of a Human Rights Policy: 
the European Union and Human Rights, Harvard Jean 
Monnet Working Paper No 1/99, in http://www.law. 
h a r v a r d . e d u / P r o g r a m s / J e a n M o n n e t / p a p e r s / 
99/990101.html, in particular part 14-A-1; R. Bauböck, 
Citizenship and National Identities in the European 
Union, Harvard Jean Monnet Working Paper No 4/97, 
in http://www.law.harvard.edu/Programs/JeanMonnet/ 
papers/97/97-04-.html, particularly pan 3; P. Dollat, 
Libre Circulation des Personnes et Citoyenneté Europé­
enne: Enjeux et Perspectives, Bruylant, Brussels, 1998, 
pp. 131-140; Y. Gautier, Article 8A, in V. Constantî-
nesco-J.P. Jacqué-R. Kovar-D. Simon, Traité sur l'Union 
européenne. Commentaire article par article, Economica, 
Paris, 1995, p. 139, at p. 140; S. Hall, Nationality, 
Migration Rights and Citizenship of the Union, Martinus 
Nijhoff, Dordrecht, 1995, in particular pp. 8-13, 117-
119, 124-125, 176-181; H.U. Jessurun d'Oliveira, op. 
cit., pp. 92-93, 99, 103-106; R. Kovar-D. Simon, La 
Citoyenneté Européenne, in CD.E., 1993, p. 284, in 
particular pp. 295-300; A. Matterà, op. cit., in particular 
pp. 20-21; D. O'Keefe, Union Citizenship, in D. O'Keefe-
P.M. Twomey, Legal Issues of the Maastricht Treaty, 
Chancery Law, London, 1994, p. 87, at pp. 93-94; 
M. Orlandi, Cittadinanza Europea e Libera Circolazione 
delle Persone, Edizioni Scientifiche Italiane, Naples, 
1996, pp. 48-53; J. Shaw, Citizenship of the Union: 
towards post-national Membership?, Harvard Jean Mon­
net Working Paper No 6/97, in http://www.law.harvard. 
edu/Programs/JeanMonnet/papers/97/97-06-.html, in 
particular part IV-D; J.Shaw, European Citizenship: the 
IGC and beyond, Elo?, 1997, No 3, in http://eiop.or.at/ 
eiop/texte/1997-003a.htm, in particular part II; C. Vin­
cenzi, op. cit., p. 273: J.H.H. Weiler, The selling of 
Europe: the discourse of European Citizenship in the IGC 
1996, Harvard Jean Monnet Working Paper No 3/96, in 
http://www.law.harvard.edu/Programs/JeanMonnet/ 
papers/96/9603.html, in particular the section entitled 
'Citizenship and Authority in the TEU' (by the same 
author, see also Les Droits des Citoyens Européens, in 
R.M.U.E., 1996, No 3, p. 35, in the first part of which -
some of the views set out in the paper cited are 
expressed); J. Wouters, European Citizenship and the 
Case-Law of the Court of Justice of the European 
Communities on the Free Movement of Persons, in 
European Citizenship, op. cit., p. 25, at pp. 47-50; 
D. Wvatt-A. Arnull-A. Dashwood, Wyatt and Dash-
wood's European Community Law, Sweet & Maxwell, 
London, 1993, 3rd edition, p. 659. 
126 — See High Court of Leicester (UK), judgment of 20 March 
1995, Vitale I, in C.M.L. Reports, 1995, vol. 3, p. 605; 
Court of Appeal of England and Wales, judgment of 
17 August 1995, Case No FC3 95/6339/D, Phull, not 
published (but cited in detail by the Court of Appeal in 
Vitale II, see below, in which importance is attached to 
the fact that House of Lords refused leave to appeal and 
did not even seek a reference under Article 177 of the EC 
Treaty; together with Vitale and Vitale II, Phull is also 
commented on by D. O'Keefe-M. Horspool, European 
Citizenship and the Free Movement of Persons, in The 
Irish Jurist, vol. XXXI, Sweet and Maxwell, 1996, 
p. 145); Court of Appeal of England and Wales, judgment 
of 19 January 1996, Vitale II, in C.M.L. Reports, 1996, 
vol. 2, p. 587. 
127 — In Martinez Sala, I observed that 'The novelty [of 
Article 8a] does not lie in its having embodied free 
movement of persons directly in the Treaty. That liberty 
was recognised in another primary source, the Single 
European Act, through the definition of the internal 
market as an area without frontiers.... Citizenship of the 
Union comes through the fiat of the primary norm, being 
conferred directly on the individual, who is henceforth 
formally recognised as a subject of law...' (point 18). 
I - 2661 
OPINION OF MR LA PERGOLA — CASE C-356/98 
dence of citizens of the Union residing in a 
Member State other that of their origin are 
now similar to those granted by the Mem­
ber States to their own nationals, or, in this 
case, by the United Kingdom to persons 
'settled' there. 128 
4 — Comparison of the conditions of 
admission to the United Kingdom laid 
down by paragraphs 255 and 287 of the 
Immigration Rules 
62. In order to demonstrate the difference 
between the cases covered by paragraphs 
255 and 287 of the Immigration Rules, the 
United Kingdom also referred, as I noted 
earlier, to procedural provisions. First, the 
spouse of a Community migrant worker 
has a genuine right to enter and remain in 
the Member State if the worker is engaged 
in (or intends to take up) an economic 
activity. In order to enjoy freedom of 
movement he is required only, upon entry, 
to present a valid identity card or pass­
port, 1 2 9 and, as regards residence, obtain a 
residence document, simply by presenting 
the documents required by Article 4(3) of 
the Directive (see footnote 3). Those form­
alities have been reduced to a minimum in 
order to remove the restrictions on the 
movement and residence of migrant work­
ers and their families (see Article 1 of the 
Directive) and are designed to guarantee 
almost immediate admission. Once those 
formalities have been fulfilled, paragraph 
255 of the Immigration Rules requires only, 
as a condition for securing the right to 
remain indefinitely, residence in national 
territory for four years. On the other hand, 
an applicant under paragraph 287 of the 
Immigration Rules must have been 'admit­
ted' to the United Kingdom in accordance 
with the conditions laid down by para­
graph 281 of the Immigration Rules (see 
point 9). Under the latter provision, it will 
be recalled, the spouse of a person present 
and settled in the United Kingdom who 
intends to 'settle' there has no right of 
entry. For that purpose he must obtain an 
appropriate leave to enter, after satisfying a 
number of conditions intended, in particu­
lar, to ensure that the marriage is genuine 
and has not been contracted with the sole 
aim of securing 'settlement' in the United 
Kingdom. The United Kingdom adminis­
tration checks whether those conditions are 
fulfilled before the applicant can be admit­
ted to the United Kingdom; 130 and not, 
within a few moments, upon entering the 
Member State, as in the case of those who 
rely on the freedom of movement guaran-
128 — In Martinez Sala, I expressed the view that, after the entry 
into force of Article 8a of the EC Treaty, Directive 90/364 
(one of the residence directives) 'continues to regulate... 
the conditions governing enjoyment of the freedom of 
movement laid down by the [EU] Treaty' (point 18; to the 
same effect, see also point 19 thereof). 
129 — Article 3(1) of the directive (see point 2). For non-
Community family members, the Member States must 
provide every facility for the requisite visas to be obtained 
(Article 3(2) of the directive). 
130 — See Boukssid, in particular at page 281. 
I - 2662 
KAISA 
teed by Article 48 of the EC Treaty, and 
their family members. 131 In view of the 
nature of the conditions laid down in 
paragraph 281 of the Immigration Rules, 
that check may even take several 
months. 132 That was recognised by Mr 
Kaba himself. 133 
63. In this case, Mr Kaba sought indefinite 
leave to remain within the meaning of 
paragraph 287 of the Immigration Rules, 
without however having first undergone 
the checks required by paragraph 281. 
Because, originally, Mr Kaba obtained a 
residence document as a spouse of a 
Community migrant worker, the United 
Kingdom authorities never had an oppor­
tunity to confirm, inter alia, that his 
marriage to Ms Michonncau was not 
contracted with the main aim of securing 
'settlement' in the United Kingdom. 134 
64. In conclusion, I do not consider that the 
difference of treatment of the spouse of a 
Community migrant worker as compared 
with the spouse of a person 'settled' in the 
United Kingdom within the meaning of the 
United Kingdom immigration legislation 
constitutes discrimination on grounds of 
nationality. 
131 — Regarding the conditions to be satisfied for entry and 
residence in the host State, I would point out that Ms 
Michonncau, who was admitted to the United Kingdom 
as a migrant worker (see poult 15), did not have to prove 
that she had sufficient economic resources or health 
insurance — in compliance with the provisions of 
Directive 90/364 (see point 24) and Article 6(2)(f) of 
the EEA Order, containing a definition of a person who is 
a 'self-sufficient person' (see footnote 46) — conditions 
which are not entirely different (at least as regards the 
rationale which inspired them) from those laid down in 
paragraph 281 (v) and (vi) (see point 9). 
132 — According to the United Kingdom case-law cited by the 
referring court, the conditions laid down in paragraph 
281 of the Immigration Rules cannot be assimilated to 
those laid down for the entry into the United Kingdom of 
Community nationals exercising Treaty rights (sec, in 
particular, Boukssid; see, however, my observations at the 
end of the foregoing footnote). 
133 — Mr Kaba observed that the procedure for verifying 
satisfaction of the conditions imposed by paragraph 
281 of the Immigration Rules is so long and, apparently, 
laborious that, at times, spouses wishing to join British 
citizens residing in the United Kingdom prefer to rely on 
the rights conferred on them by the Treatv (thanks to 
which entry is immediate) in the event of the British 
citizen being able to enjoy the free movement recognised 
as available to him by the judgment in Singh, which is 
now supplemented by the Wi/senheek decision (sec 
footnote 36). The facts of Boukssid confirm this . Ms 
Boukssid, a student and a Moroccan citizen residing in 
the United Kingdom under a residence document that had 
expired, married in November 1993 Mr Stollery, a British 
citizen. In September 1994 the couple went to the 
Netherlands where the husband had found work as a 
employee. Subsequently, Ms Boukssid submitted an 
application to settle in the United Kingdom, to the British 
Consulate in Amsterdam, where officials explained to her 
that, if she had insisted on obtaining leave to enter under 
UK immigration law, she would have to have spent a 
period of time outside the United Kingdom, separate 
from her husband (who in the meantime, of course, had 
gone back to his own country), whilst the administration 
proceeded with the routine enquiries. If, on the contrary, 
it was explained to her, she had relied on the rights 
available to her under Community law, she could have 
entered the United Kingdom without any delay. Ms 
Boukssid chose to apply as 'non-EC dependant of a 
European Community national' (loc. cit., p. 277). 
134 — Even if the point may be of no relevance to legal analysis 
of the provisions with which the order for reference is 
concerned, I would note that, after submission of the 
application for indefinite leave to remain, Mr Kaba and 
Ms Michonneau divorced. 
OPINION OF MR LA PERGOLA — CASE C-356/98 
VI — Conclusion 
65. Accordingly, in my opinion, the following answers should be given to the 
questions submitted by the Immigration Adjudicator: 
(1) Indefinite leave to remain, of the kind provided for in paragraphs 255 and 
287 of the United Kingdom Immigration Rules, constitutes a 'social 
advantage' within the meaning of Article 7(2) of Regulation (EEC) 
No 1612/68 of the Council of 15 October 1968 on freedom of movement 
for workers within the Community. 
(2) The prohibition of discrimination on grounds of nationality within the 
meaning of Article 7(2) of Regulation (EEC) N o 1612/68 is not infringed by 
provisions of national law such as those of paragraphs 255 and 287 of the 
United Kingdom Immigration Rules, which lay down — as a condition for 
eligibility for a social advantage such as indefinite leave to remain — the 
requirement of completion of a period of residence in the Member State 
concerned the duration of which differs according to whether the applicant is 
the spouse of a Community migrant worker or of a person 'present and 
settled' in the host State. 
I - 2664