The European Court of Justice in Brussels has ruled that a Philippines woman who overstayed her leave to enter the UK and who later married a British citizen, cannot be deported.
In a case which has implications for all member-states of the EU, the ECJ found that the decision to deport Mrs Mary Carpenter did not strike a fair balance between the right to respect for her family life and the maintenance of public order and security.
Mrs Carpenter was given leave to enter the UK as a visitor for six months in 1994. She overstayed that leave without seeking an extension and in May 1996 married Mr Peter Carpenter.
In July that year Mrs Carpenter applied to the Home Secretary for leave to remain in the UK as the spouse of a British national. This was refused and a deportation order was made against her.
She challenged that decision before the Immigration Appeal Tribunal. However, it stayed the proceedings until the European Court of Justice decided on whether Community law conferred rights on the spouses of nationals of member states who carried on business in other member states.
Mr Carpenter had a business selling advertising in various specialist journals and, while his business was based in the UK, it took him to other member-states as well.
However, this was not the ground on which Mrs Carpenter won her case. Instead the ECJ invoked the Convention for the Protection of Human Rights and Fundamental Freedoms, which is protected by community law.
While acknowledging that this did not give an alien the right to enter and reside in a particular country, the court commented that "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".
It pointed out that apart from her overstaying her leave to enter the UK, Mrs Carpenter's conduct had not been the subject of any other complaint which could give cause to fear she might in future be a danger to public order or public safety. It also commented that it was clear that the marriage was genuine and that Mrs Carpenter continued to lead a true family life in the UK, in particular by looking after her husband's children from a previous marriage.
The decision to depart her, therefore, was disproportionate to the objective pursued.