The ASBL Mouvement contre le racisme, l'antisémitisme et la xénophobie (Movement to combat Racism, Anti-semitism and Xenophobia) brought an action before the Belgian Council of State (Conseil d'Etat) sitting as a court for annulment of part of that circular. The applicant considers, inter alia, that part of it also infringes Community law.

The Council of State stayed proceedings and referred four questions on the interpretation of the applicable Community provisions to the Court of Justice of the European Communities. These relate to the status, under the law on residence, of non-EU nationals married to an EU national and wishing to move to the latter's country (here Belgium) for the purpose of bringing their family together.

Advocate General Stix-Hackl delivers her Opinion in that 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 notes first of all that, as Community law currently stands, the legal position of non-EU family members of an EU national who lives in his or her home Member State and has not exercised his or her Community right to free movement of persons is governed exclusively by national (here Belgian) law on bringing families together. Non-EUfamily members of a citizen of the Union may, in contrast, benefit from certain Community provisions if the EU citizen has exercised his or her rights under Community law.

1.    Refusal of entry at the border - The Belgian court asks first of all whether Community law permits Member States to refuse entry at the border to non-EU spouses of citizens of the European Community subject to visa requirements attempting to enter a Member State without being in possession of any identity document or visa.

The Advocate General points out that, under Community Directives 68/360 and 73/148, the Member States are under a duty to allow family members to enter their territory on production of a valid passport or identity card; family members who are non-EU nationals may be required to produce a visa.

The Community legislation does not contain any express provision on refusal to allow entry at the border where no identity document or visa is produced. However, in the view of the Advocate General, such refusal constitutes a possible response by the Member State, albeit not on an automatic basis, to ensure that its entry requirements are satisfied.

It is true that refusal by a Member State to allow entry at the border infringes the spouse's basic Community right to respect for his or her family life. Such infringement is nonetheless permitted provided certain conditions are satisfied, but it is for the national court in each individual case to examine, inter alia, whether the infringement is necessary and proportionate (that is to say, to weigh up the interests of the individual and the public interest). The Court of Justice can only provide general guidelines.

The Advocate General considers that Member States may refuse to allow entry at the border to non-EU spouses of Community citizens subject to visa requirements who attempt to enter a Member State without being in possession of any identity document or visa only if such refusal is compatible with the right to respect for family life and in particular the principle of proportionality.

2.    Illegal entry - By its second question the Belgian court wishes to know whether Community law allows Member States to refuse to grant a residence permit to, or expel, non-EU spouses of a Community citizen who have entered the country illegally.

The Advocate General points out that, under the Community directives cited above, a Member State must grant a non-EU spouse of a Union citizen a residence permit if he or she produces certain documents. The legislation does not mention refusal to grant a residence permit on the ground that the person entered the country unlawfully. The Advocate General regards such refusal as a "measure of public policy". Under Community Directive 64/221, such measures must be based "exclusively on the personal conduct of the individual concerned". A blanket national rule such as the Belgian circular in question here, which, in providing, for instance, for automatic refusal of a residence permit where entry was effected illegally, does not require each case to be examined individually is therefore not, in the Advocate General's view, permitted.

The same argument applies, says the Advocate General, to the penalty of expulsion laid down by the Belgian circular. The Advocate General does, however, consider that other penalties, such as fines or imprisonment, are permissible in principle provided they are proportionate.

The Advocate General considers that the Member States may refuse to grant a residence permit to a non-EU spouse of a Union citizen who entered the country unlawfully and expel him or her only if that is compatible with the right to respect for family life and in particular the principle of proportionality.

3.    Lawful entry, expiry of visa - The third question from the Belgian court relates to whether Community law permits Member States to refuse to grant a residence permit to a non-EU spouse of a Union citizen whose visa has, at the time when the residence permit is applied for, expired, or to expel him or her.

As stated above, the Member State must grant the non-EU spouse of a Union citizen a residence permit if he or she produces certain documents. The Community legislation does not mention the visa in this context. The Advocate General accordingly concludes that, where a person entered the country lawfully, the Member State may not refuse to grant him or her a residence permit on the sole ground that his or her visa has expired.

The Advocate General therefore considers that the Member States may neither refuse to grant a residence permit to, nor expel, a non-EU spouse of a Union citizen who entered the country lawfully on the ground that that person's visa has expired at the time when he or she applies for the residence permit.

4.    Protection of legal rights - On the question of the protection of legal rights of the non- EU spouse when making his or her application, the Advocate General states that the Member States must not make it excessively difficult or impossible in practice for rights granted under Community law to be exercised.

Unofficial document for media use only; not binding on the Court of Justice. Available in German, French and English. 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. (00352) 4303 - 3355; Fax (00352) 4303 - 2731