CELEX: C2001/061/08
Language: en
Date: 2001-02-24 00:00:00
Title: 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

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            1.    The Immigration Adjudicator having found that the
      described in the articles cited, constitutes a restriction                Appellant, and the spouse of a person present and settled
      on the free movement of capital and the freedom of                        in the United Kingdom were (or would be) afforded
      establishment, which are provided for in Article 56 EC                    different treatment in that
      (ex Article 73b) and Article 43 EC (ex Article 52);
—     the system of administrative authorisation laid down by                   a)    the Appellant, having entered the United Kingdom
      Law 5/1995 can in no way be justified by overriding                             as the spouse of an EU citizen exercising free
      reasons of public interest and clearly involves the exercise                    movement rights, was required to have been in the
      of discretion. That discretionary power is a key factor                         United Kingdom for four years before he could
      conducive to a negative assessment as regards the require-                      apply for indefinite leave to remain, whereas
      ment of proportionality and to the conclusion that what
      is involved is a system allowing indirect discrimination.
                                                                                b)    the spouse of a person who was present and settled
                                                                                      in the United Kingdom (whether a British national
(1) Law 5/1995 of 23 March 1995 on the rules applying to the sale                     or as a person who had been granted indefinite leave
    of public shareholdings in certain companies (Boletı́n Oficial del                to remain) would qualify after one year for indefinite
    Estado No 72 of 25 March 1995).
                                                                                      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
Reference for a preliminary ruling by the Immigration                           Respondent before the European Court of Justice or the
Appellate Authority (United Kingdom), by order of that                          hearing leading up to the present Order for Reference,
court of 19 December 2000, in the case of Arben Kaba                            despite the request by the Adjudicator for full argument,
    against Secretary of State for the Home Department                          the Immigration Adjudicator asks
                         (Case C-466/00)
                                                                                1.    Whatever the answer to the first question set out
                          (2001/C 61/08)                                              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-
Reference has been made to the Court of Justice of the                                nation contrary to Article 39 EC and/or Article 7(2)
European Communities by an order of the Immigration                                   of Regulations 1612/68 (2)?
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                        2.    After re-assessment of the facts, is there discrimi-
against Secretary of State for the Home Department, on the                            nation contrary to Article 39 EC and/or Article 7(2)
following questions:                                                                  of Regulations 1612/68?
Question 1
                                                                          (1) Judgment of the Court of 11 April 2000 in Case C-356/98, Arben
1.    What mechanisms are there for the referring court or the                Kaba against Secretary of State for the Home Department (ECR
      parties to the proceedings (before the referring court and              p. I-2623).
      the ECJ) to ensure that the totality of the proceedings             (2) Regulation (EEC) No 1612/68 of the Council of 15 October 1968
      comply with the obligations under Article 6 ECHR and                    on freedom of movement for workers within the Community (OJ
      therefore to ensure that no liability for breach of Article             L 257, 19.10.1968, p. 2 [SE SER1 68(H) p. 475]).
      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)?