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European briefing

Paul Stanley asks whether the ECJ is losing its way following its “extraordinary” approach to an immigration case referral

11 April 2003

On 6 March 2000 the ECJ gave judgment in Case C–466/00 Kaba. This is a messy case, which might have raised important points of constitutional law. In the event, the ECJ has ducked the most difficult issue . Under the Immigration Rules the spouse of a non-EEA national ‘present and settled’ here may obtain indefinite leave to remain in the UK after living here for one year. The spouse of an EU national, however, can only seek indefinite leave to remain after living here for four years. Kaba, a Yugoslav national married to a French national, fell into this latter category. He complained that he was receiving discriminatory treatment. Sequence of events The case was referred by an Immigration Adjudicator (IA) to the ECJ in 1998. In 2000, the ECJ ruled against the complaint. But it did so using arguments which had emerged for the first time in the Advocate General’s opinion. Under the ECJ’s rules of procedure the parties had had no opportunity to comment on t...

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