Mr Carpenter operates, as sole owner, an undertaking which sells advertisements in periodicals and offers the editors of those periodicals various services in connection with administration and publication of advertisements. The undertaking is established in the United Kingdom, as are some of its customers. A substantial part of the undertaking's business is, however, conducted with customers established in other Member States. Mr Carpenter also attends meetings for business purposes in other Member States.

In July 1996 Mrs Carpenter applied to the Secretary of State for the Home Department for leave to remain as the spouse of a United Kingdom national. The application was refused, and the Secretary of State took a decision to make a deportation order against Mrs Carpenter because she had overstayed her leave.

Mrs Carpenter has challenged that decision. The Immigration Appeal Tribunal, which is now hearing the case, has stayed the proceedings and referred a question to the Court of Justice of the European Communities on whether, in such a case, the spouse, who is not an EU national, of a national of a Member State of the EU may derive a right of residence in the United Kingdom from EC law.

Advocate General Stix-Hackl delivers her Opinion in this case today.

The Opinion of the Advocate General is not binding on the Court. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the case assigned to them.

The Advocate General proposes that the Court's answer to the question put by the United Kingdom tribunal should be as follows; in a case where a national of a Member State resident in that Member State provides services to persons in other Member States and is married to a spouse who is not a national of a Member State, the spouse who is a national of a non- member country may rely on a Community directive of 1973 to obtain the right to reside with his or her spouse in the latter's Member State of origin. It must be taken into account here that the directive must be interpreted in the light of freedom to provide services and of fundamental rights, in particular the right to respect for family life.

The Advocate General points out first that Mrs Carpenter cannot rely, for her right of residence, on the fundamental freedoms - such as the freedom to provide services - granted to EU nationals by the EC Treaty, since she is a national of a non-EU State, namely the Philippines.

The position is different, in the Advocate General's view, with Directive 73/148/EEC "on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services". The Advocate General explains that the residence status of a national of a non-member country who is married to a citizen of the Union depends on the legal position of the citizen of the Union: only if and as long as the EU citizen exercises his fundamental freedoms under Community law of cross-frontier establishment or provision of services does the non-EU spouse have a right of residence, thanks to the Community directive. Mr Carpenter exercises his Community law rights in two respects, by travelling to another Member State for professional reasons in order to do business there on a self-employed basis, and also by providing services from the United Kingdom across a frontier. Mrs Carpenter therefore, in the Advocate General's view, has a right of residence in the United Kingdom (derived from her husband) under Community law.

Application of the UK regulations, under which Mrs Carpenter has been refused a residence permit and is to be deported, may also lead to a restriction of her husband's Community law right to provide services in another Member State.

The Advocate General emphasises, however, that these United Kingdom rules must be interpreted by the national authorities and courts in the light of fundamental rights. These also include the rights under the European Convention on Human Rights. In the present case, the right enshrined in the Convention to respect for family life - the protection of marriage and ties with the children - is interfered with in principle.

The right to respect for family life does not have absolute protection, however; interferences by the State are permitted under certain circumstances. The Advocate General points out that the assessment of whether an interference with fundamental rights is permissible depends on taking into account the circumstances of the specific individual case. That is for the national court to do, but the Court of Justice can give it criteria to use.

Thus when considering the necessity of an interference, its proportionality must be examined (in other words, striking a balance between private and public interests). The Advocate General mentions inter alia the following criteria: Is it reasonable for Mrs Carpenter that she can apply for leave only from abroad? Would the deportation of Mrs Carpenter be reasonable for Mr Carpenterand his children? On the other hand, the State has an interest in its regulations on foreigners, in particular on the right of residence, being complied with. How serious is Mrs Carpenter's breach of the rules by staying in the United Kingdom after expiry of her limited leave? Non-compliance with the rules on foreigners could also be punished by fines and imprisonment. According to the case-law of the EC Court of Justice, there are strict limits on expulsion from the territory.

Unofficial document for media use only; not binding on the Court of Justice. Available in English, French and German. For the full text of the Opinion, please consult our Internet page www.curia.eu.int  at approximately 15.00 hrs today. For further information please contact Fionnuala Connolly: Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731