Notice for the OJ
JUDGMENT OF THE COURT
23 September 2003
in Case C-109/01 (Reference for a preliminary ruling from the Immigration Appeal Tribunal): Secretary of State for the Home Department v Hacene Akrich,(1) (Freedom of movement for workers ( National of a non-Member State who is the spouse of a national of a Member State ( Spouse under a prohibition on entering and remaining in that Member State ( Temporary
establishment of the couple in another Member State ( Establishment with a view to acquisition by spouse of a right under Community law to enter and remain in the first Member State ( Abuse)
(Language of the case: English)
(Provisional translation; the definitive translation will be published in the European Court Reports)
In Case C-109/01: Reference to the Court under Article 234 EC by the Immigration Appeal Tribunal (United Kingdom) for a preliminary ruling in the proceedings pending before that court between Secretary of State for the Home Department and Hacene Akrich, on the interpretation of Community law on freedom of movement for persons and the right to remain of a national of a non-Member State who is the spouse of the national of a Member State, the Court, composed of: G.C. Rodríguez Iglesias, President, J.-P.- Puissochet, M. Wathelet, R. Schintgen and C.W.A. Timmermans (Presidents of Chambers), D.A.O. Edward, A. La Pergola, P. Jann, F. Macken, N. Colneric (Rapporteur) and S. von Bahr, Judges; L.A. Geelhoed, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, has given a judgment on 23 September 2003, in which it has ruled:
1.In order to be able to benefit in a situation such as that at issue in the main proceedings from the rights provided for in Article 10 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, a national of a non-Member State married to a citizen of the Union must be lawfully resident in a Member State when he moves to another Member State to which the citizen of the Union is migrating or has migrated.
2.Article 10 of Regulation No 1612/68 is not applicable where the national of a Member State and the national of a non-Member State have entered into a marriage of convenience in order to circumvent the provisions relating to entry and residence of nationals of non-Member States.
3.Where the marriage between a national of a Member State and a national of a non-Member State is genuine, the fact that the spouses installed themselves in another Member State in order, on their return to the Member State of which the former is a national, to obtain the benefit of rights conferred by Community law is not relevant to an assessment of their legal situation by the competent authorities of the latter State.
4.Where a national of a Member State married to a national of a non-Member State with whom she is living in another Member State returns to the Member State of which she is a national in order to work there as an employed person and, at the time of her return, her spouse does not enjoy the rights provided for in Article 10 of Regulation No 1612/68 because he has not resided lawfully on the territory of a Member State, the competent authorities of the first-mentioned Member State, in assessing the application by the spouse to enter and remain in that Member State, must none the less have regard to the right to respect for family life under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, provided that the marriage is genuine.
____________1 - OJ C 150 of 19.5.2001