Press and Information Division
PRESS RELEASE No 76/03
23 September 2003
Judgment of the Court of Justice in Case C-109/01
Secretary of State for the Home Department / Hacene Akrich
A NATIONAL OF A NON-EU STATE WHO IS MARRIED TO A EU CITIZEN MAY RESIDE IN THE CITIZEN'S STATE OF ORIGIN WHEN THAT CITIZEN, AFTER MAKING USE OF THEIR RIGHT TO FREEDOM OF MOVEMENT, RETURNS TO THEIR HOME COUNTRY WITH THEIR SPOUSE IN ORDER TO WORK, PROVIDED THAT THE SPOUSE HAS LAWFULLY RESIDED IN ANOTHER MEMBER STATE
The motives which prompt a couple to move to another Member State are irrelevant, even if their purpose in doing so is with a view to returning to the first Member State where the spouse did not have the right to remain at the time when the couple settled in another Member State to establish a right to remain under Community law
At the beginning of 1998, Mr Akrich applied to the United Kingdom authorities
for leave to enter as the spouse of a person settled in the
United Kingdom. He relied on the judgment of the Court of Justice of
the EC in Singh. The Court held in that case that a national
of a Member State who has worked as an employed person within the
meaning of Community law in another Member State may, when he returns to
his own country, be accompanied by his spouse, of whatever nationality. Under Community
legislation, the spouse has the right to enter and to remain which he
may invoke directly against the Member State of which the worker is a
Upon making their application, Mr and Mrs Akrich were questioned by the United
Kingdom Embassy in Dublin. It emerged that they intended to return to the
United Kingdom "because [they] had heard about EU rights, staying six months and
then going back to the UK".
The application was refused by the Secretary of State for the Home Department.
The Secretary of State considered that the move to Ireland was no more
than a temporary absence deliberately designed to manufacture a right of residence for
Mr Akrich and to evade the provisions of the United Kingdom legislation. Mr
Akrich appealed against this refusal.
The case eventually came before the Immigration Appeal Tribunal, which requested the Court
of Justice of the EC whether, in such circumstances, the Member State of
origin may refuse the spouse who is a national of a non-member country
the right to enter and may take into account the fact that the
couple's motive was to claim the benefit of Community rights on returning to
the Member State of origin.
The Court refers to its judgment in Singh, where it held that under
Community law a Member State is obliged to grant leave to enter and
remain on its territory to the spouse of a national of that State
who has gone, with his or her spouse, to another Member State in
order to work there as an employed person and who returns to settle
in the territory of the State of which he or she is a
national. None the less, the Court observes that Community law, specifically Regulation 1612/68
on freedom of movement for workers, refers only to freedom of movement within
the Community and is silent as to the rights of a national of
a non-member country, who is the spouse of a citizen of the Union,
in regard to access to the territory of the Community.
In order to benefit from the right to install himself with the citizen
of the Union, this spouse must, according to the Court, be lawfully resident
in a Member State when he moves to another Member State to which
the citizen of the Union migrates.
The Court observes that the same applies where the citizen of the Union
married to a national of another Member State returns to the Member State
of which he is a national in order to work there as an
As regards the question of abuse, the Court states that the motives of
the citizen intending to seek work in a Member State are irrelevant in
assessing the legal situation of the couple at the time of their return
to the Member State of origin. Such conduct cannot constitute an abuse even
if the spouse did not have a right to remain in the Member
State of origin at the time when the couple installed themselves in another
Member State. The Court considers that there would be an abuse if the
Community rights had been invoked in the context of marriages of convenience entered
into in order to circumvent the national immigration provisions.
The Court then states on the basis of these considerations that where a
marriage is genuine and where a national of a Member State married to
a national of a non-member country returns to his State of origin, where
the spouse does not enjoy Community rights, not having resided lawfully on the
territory of another Member State, the authorities of the State of origin must
none the less take account of the right to respect for family life
under Article 8 of the Convention on Human Rights.
Unofficial document, for media use only, which does not bind the Court of Justice
Available languages: DE, EN, FR, IT, NL, ES.
The full text of the judgment can be found on the internet (www.curia.eu.int ).
In principle it will be available from midday CET on the day of delivery.
For additional information please contact Christopher Fretwell.
Tel: (00352) 4303 3355 Fax: (00352) 4303 2731
Judgment of 7 July 1992 in Case C-370/90.