Case C-466/00: Reference for a preliminary ruling by the Immigration Appellate Authority (United Kingdom), by order of that court of 19 December 2000, in the case of Arben Kaba against Secretary of State for the Home Department
Date: 2001-02-24
Institutions: Court of Justice
Subjects: European charter, charter on human rights, equal treatment, foreign national, interpretation of the law, residence permit

C 61/4

EN

Official Journal of the European Communities

24.2.2001

The Commission submits that:

Question 2

— the possibility of making certain operations subject to
prior administrative authorisation, in the circumstances
described in the articles cited, constitutes a restriction
on the free movement of capital and the freedom of
establishment, which are provided for in Article 56 EC
(ex Article 73b) and Article 43 EC (ex Article 52);

— the system of administrative authorisation laid down by
Law 5/1995 can in no way be justified by overriding
reasons of public interest and clearly involves the exercise
of discretion. That discretionary power is a key factor
conducive to a negative assessment as regards the require-
ment of proportionality and to the conclusion that what
is involved is a system allowing indirect discrimination.

(1) Law 5/1995 of 23 March 1995 on the rules applying to the sale
of public shareholdings in certain companies (Boletı´n Oficial del
Estado No 72 of 25 March 1995).

Reference for a preliminary ruling by the Immigration
Appellate Authority (United Kingdom), by order of that
court of 19 December 2000, in the case of Arben Kaba
against Secretary of State for the Home Department

(Case C-466/00)

(2001/C 61/08)

Reference has been made to the Court of Justice of the
European Communities by an order of
the Immigration
Appellate Authority (United Kingdom) of 19 December 2000,
which was received at the Court Registry on 27 December
2000, for a preliminary ruling in the case of Arben Kaba
against Secretary of State for the Home Department, on the
following questions:

Question 1

1. What mechanisms are there for the referring court or the
parties to the proceedings (before the referring court and
the ECJ) to ensure that the totality of the proceedings
comply with the obligations under Article 6 ECHR and
therefore to ensure that no liability for breach of Article
6 ECHR arises either under the domestic human rights
statute or before the Court of Human Rights? and

2. Was the procedure followed in this case in compliance
with the requirements of Article 6 ECHR and, if not, how
does this affect the validity of the first judgment (1)?

1.

The Immigration Adjudicator having found that
the
Appellant, and the spouse of a person present and settled
in the United Kingdom were (or would be) afforded
different treatment in that

a)

b)

the Appellant, having entered the United Kingdom
as the spouse of an EU citizen exercising free
movement rights, was required to have been in the
United Kingdom for four years before he could
apply for indefinite leave to remain, whereas

the spouse of a person who was present and settled
in the United Kingdom (whether a British national
or as a person who had been granted indefinite leave
to remain) would qualify after one year for indefinite
leave to remain.

2. No evidence (or argument) concerning justification of the
differential treatment between the applicant and such a
spouse of a person present and settled having been
presented to the referring court either at the hearing
leading up to the Order for Reference of 25 September
1998, in the written or oral observations made by the
Respondent before the European Court of Justice or the
hearing leading up to the present Order for Reference,
despite the request by the Adjudicator for full argument,
the Immigration Adjudicator asks

1. Whatever the answer to the first question set out
above, is the Court’s judgment of 11 April 2000 in
this case (Case-356/98) to be interpreted as stating
that,
in these circumstances, there was discrimi-
nation contrary to Article 39 EC and/or Article 7(2)
of Regulations 1612/68 (2)?

2. After re-assessment of the facts, is there discrimi-
nation contrary to Article 39 EC and/or Article 7(2)
of Regulations 1612/68?

(1) Judgment of the Court of 11 April 2000 in Case C-356/98, Arben
Kaba against Secretary of State for the Home Department (ECR
p. I-2623).

(2) Regulation (EEC) No 1612/68 of the Council of 15 October 1968
on freedom of movement for workers within the Community (OJ
L 257, 19.10.1968, p. 2 [SE SER1 68(H) p. 475]).