CELEX: C1998/358/18
Language: en
Date: 1998-11-21 00:00:00
Title: Reference for a preliminary ruling by the Immigration Adjudicator, by order of the Adjudicator of 25 September 1998, in the case of Arben Kaba against Secretary of State for the Home Department (Case C-356/98)

C 358/10              EN                Official Journal of the European Communities                                   21.11.98
    majority of cases, select only a Belgian national                   considered (see paragraph 255 of the United Kingdom
    residing for a certain length of time in Belgium, thus              Immigration Rules, House of Commons Paper 395), as
    allowing those authorities to carry out the screening'             compared to a requirement of 12 months residence
    which they deem necessary, but not a person who has                 before such application can be made, as is applied to
    acted as a manager of a comparable undertaking in                   spouses of the United Kingdom nationals and spouses
    another Member State of the European Union. In                      of those present and settled in the United Kingdom
    those circumstances, the requirement of residence                   (paragraph 287 of the United Kingdom Immigration
    constitutes indirect discrimination which could only be             Rules, House of Commons Paper 395) constitute
    justified under Article 56 of the EC Treaty. The                    unlawful discrimination contrary to Article 7(2)
    Commission considers, however, that the restriction                 Regulation (EEC) No 1612/68?
    derives from administrative considerations which are
    not such as to justify it.
                                                                   (1) 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(II)
Ð Restriction on freedom of movement for workers                       p. 475]).
    (Article 48 of the EC Treaty):
    The requirement of residence in Belgium prevents
    workers residing in other countries from being
    engaged by a security firm or a security systems firm,
    or being employed for the purposes of an internal
    security service in an undertaking in Belgium. In              Reference for a preliminary ruling by the Court of Appeal,
    response to the argument alleging the need for control,        London, by order of that Court of 13 May 1998, in the
    the Commission reiterates the arguments which it put           case of The Queen against Secretary of State for the
    forward in connection with Article 52 of the EC                  Home Department, ex parte: Nana Yaa Konadu Yiadom
    Treaty.
                                                                                          (Case C-357/98)
(1) OJ C 334, 9.12.1993, p. 3.                                                             (98/C 358/19)
                                                                   Reference has been made to the Court of Justice of the
                                                                   European Communities by an order of the Court of
                                                                   Appeal, London, of 13 May 1998, which was received at
Reference for a preliminary ruling by the Immigration              the Court Registry on 1 October 1998, for a preliminary
Adjudicator, by order of the Adjudicator of 25 September           ruling in the case of The Queen against Secretary of State
1998, in the case of Arben Kaba against Secretary of State         for the Home Department, ex parte: Nana Yaa Konadu
                  for the Home Department                          Yiadom, in the following questions:
                       (Case C-356/98)
                        (98/C 358/18)                              1. Do both Article 8 and Article 9 of Council Directive
                                                                        64/221/EEC of 25 February 1964 on the coordination
                                                                        of special measures concerning the movement and
Reference has been made to the Court of Justice of the                  residence of foreign nationals which are justified on
European Communities by an order of the Immigration                     grounds of public policy, public security or public
Adjudicator of 25 September 1998, which was received at                 health (OJ English Special Edition 1963Ð4, p. 117
the Court Registry on 1 October 1998, for a preliminary                 and OJ 56, 4.4.1964, p. 850.) apply to decisions
ruling in the case of Arben Kaba against Secretary of State             concerning entry into the territory of a Member State,
for the Home Department, on the following questions:                    or are decisions concerning entry covered solely by the
                                                                        provisions of Article 8?
1. Does the right to apply for indefinite leave to remain
    in the United Kingdom and the right to have that               2. If the answer to the first question is that Article 8, but
    application considered constitute a social advantage'              not Article 9, of Directive 64/221/EEC applies to
    within the meaning of Article 7(2), Regulation (EEC)                decisions concerning entry into the territory of a
    No 1612/68 (1)?                                                     Member State, are the requirements of Article 8
                                                                        satisfied by provisions of national law which grant to
                                                                        the national of a Member State who is refused entry to
2. Does the requirement imposed on the spouses of EC                    another Member State on grounds of public policy a
    nationals to have been resident in the United Kingdom               right of appeal to a court of law which may only be
    for four years before an application for indefinite leave           exercised once that person is no longer physically
    to remain in the United Kingdom may be made and                     present in the Member State concerned?