Case 292/89 Antonissen [1991] ECR I-745

• Antonissen, a Belgian national, had come to the UK to seek work, unsuccessfully, and, after being imprisoned for drugs offences, was to be deported.

• He claimed Article 39 right to stay there, while UK argued that the article only related to those who had confirmation of employment.

• This was referred to ECJ which held that Article 39 did apply to those seeking employment as well as those who came to UK with a firm offer, but that the former category of worker could be deported if, within a reasonable period, they had failed to find work.

• In this case, Antonissen had been present for 6 months and had failed to find work. It was therefore lawful to deport him unless the migrant worker can show that he is continuing to seek work and stands a genuine chance of obtaining it.

• However NB ECJ rejected UK’s initial argument (that Article 39 only applied to those with actual job offers). 

ECJ

• Although the strict wording of Article 39(3)(a-c) only confers freedom of movement to accept employment offers, to move freely for that purpose and to stay for that purpose, such a narrow reading would exclude free movement for those seeking work, which in turn would seriously harm their chances of ever actually finding work in the target MS, and it is therefore rejected.

• Therefore Article 39(3) is to be viewed as a non-exhaustive list of certain rights benefitting MS nationals in the free movement context.

• This ruling means that those without employment offers but seeking work can use Article 39, but can be removed if they fail to find work within a reasonable period, there being no need to resort to the public policy, public health, etc. exceptions under 48(3), since these only apply to what the ECJ calls the non-exhaustive list of rights detailed here.

• ECJ took a purposive attitude, saying the point of the article was free movement to match workers to jobs, and thus interpreted the article in a manner to fit, EVEN THOUGH its interpretation went against the actual wording.