Mary Carpenter, a Philippine national, was given leave in 1994 to enter the United Kingdom as a visitor for six months. She overstayed that leave without seeking an extension and, in May 1996, married Peter Carpenter, a national of the United Kingdom.

Mr Carpenter runs a business selling advertising space in medical and scientific periodicals and offering various administrative and publishing services to the editors of those journals. The business is established in the United Kingdom, as are some of its customers, but a significant proportion of the business is conducted with advertisers established in other Member States. Mr Carpenter travels to those Member States for the purposes of his business.

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

Mrs Carpenter is challenging that decision. The Immigration Appeal Tribunal, which is now hearing the case, has stayed proceedings and referred to the Court of Justice of the European Communities the question whether Community law can confer on the spouse, who is a national of a non-member country, of a national of a Member State of the European Union a right of residence in the United Kingdom, Mr Carpenter's Member State of origin.

Two questions were referred to the Court:

1. Does Community law apply to that situation, or, in other words, is there a connecting factor?

It is established that Mr Carpenter's business consists of providing services, for remuneration, to advertisers established, in particular, in other Member States. Those services involvetravelling on business to those other Member States and cross-border services provided from the United Kingdom.

Mr Carpenter is therefore availing himself of his right freely to provide services. However, the Community Directive on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to the provision of services provides, in that context, for entry and residence, within the territory of another Member State, but does not govern the right of residence of members of the family of a provider of services in his Member State of origin.

2. Can a right of residence be derived from Community law in favour of the spouse?

The Court points out that the Community legislature has recognised the importance of ensuring the protection of the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the EC Treaty.

It is clear that the separation of Mr and Mrs Carpenter by her deportation would be detrimental to their family life and, therefore, to the conditions under which Mr Carpenter exercises a fundamental freedom. That freedom could not be fully effective if Mr Carpenter were to be deterred from exercising it by obstacles raised in his country of origin to the entry and residence of his spouse.

The Court states that a Member State may invoke reasons of public interest to justify a national measure which is likely to obstruct the exercise of the freedom to provide services only if that measure is compatible with the fundamental rights whose observance the Court ensures.

The decision to deport Mrs Carpenter constitutes an interference with the exercise by Mr Carpenter of his right to respect for his family life accorded by the Convention for the Protection of Human Rights and Fundamental Freedoms, which is among the fundamental rights protected in Community law. The Court notes that even though no right of an alien to enter or to reside in a particular country is as such guaranteed by the Convention, the removal of a person from a country where close members of his family are living may, in certain cases, amount to an infringement of the right to respect for family life.

The decision to deport Mrs Carpenter, in this particular case, does not strike a fair balance between the competing interests, that is, on the one hand, the right of Mr Carpenter to respect for his family life, and, on the other hand, the maintenance of public order and public safety.

Although Mr Carpenter's spouse has infringed the immigration laws of the United Kingdom by not leaving the country prior to the expiry of her leave to remain as a visitor, her conduct, since her arrival in the United Kingdom in September 1994, has not been the subject of any other complaint that could give cause to fear that she might in the future constitute a danger to public order or public safety. Moreover, it is clear that Mr and Mrs Carpenter's marriage, which was celebrated in the United Kingdom in 1996, is genuine and that Mrs Carpenter continues to lead a true family life there, in particular by looking after her husband's children from a previous marriage.

In those circumstances, the decision to deport Mrs Carpenter constitutes an infringement which is not proportionate to the objective pursued.

The Court therefore concludes that the principle of freedom to provide services laid down in the EC Treaty, read in the light of the fundamental right to respect for family life, precludes a refusal, by the Member State of origin of a provider of services established in that Member State who provides services to recipients established in other Member States, of the right to reside in its territory to that provider's spouse, who is a national of a third country.

Unofficial document for media use only; not binding on the Court of Justice. Available in English, French, German, Greek and Italian. For the full text of the judgment, please consult our Internet page www.curia.eu.int  at approximately 3pm today. For further information please contact Mr Reinier Van Winden: Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731