Irish Times

BY CAROL COULTER, LEGAL AFFAIRS CORRESPONDENT
Nationals of states awaiting entry to the EU cannot be denied the right of residence in member-states, including Ireland, if they are genuinely self-employed, according to the EU Court of Justice.

The court issued three judgments yesterday relating to the right to establishment in Britain of nationals of the Czech Republic, Poland and Bulgaria. The British High Court of Justice had sought clarification from the EU Court of Justice on the matter, and the three cases will now return to the British court for its decision.

The question arose from agreements signed between these applicant states and the EU in 1994 and 1995, designed to provide a framework for their accession to the EU. These agreements prohibit discrimination on grounds of nationality against nationals of these states who are self-employed workers, or people setting up companies.

Three applicants, from Poland, Bulgaria and the Czech Republic, sought the right to remain in Britain under these agreements, having entered the state on another basis.

A Polish couple who had entered Britain as tourists in 1991 stayed on, and following the birth of their child sought to regularise their stay, on the basis that the man had become a self-employed building contractor. They were refused because they were not legally in Britain.

Two Czech nationals who were members of the Roma community had unsuccessfully applied for political asylum in 1997, and then sought to be established as self-employed gardener and cleaner respectively. They were refused on the basis the businesses were non-viable.

A Bulgarian student who had overstayed on a visitor's visa unsuccessfully sought to be established as a self-employed cleaner.
The EU Court of Justice found that EU member-states had the right to regulate entry, but not to discriminate against self-employed nationals of these states.

'The association agreements thus confer on those nationals a right of establishment, that is to say, a right to take up activities of an industrial or commercial character, activities of craftsmen or activities of the professions, and to pursue them in a self-employed capacity,' it said.

However, the authorities had the right to establish that the businesses were viable. They also had the right to refuse to accept an application from a person who misled them initially, but such a person could then submit a new application based on the rights existing under the agreement.

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