Secretary of State for the Home Department v Hacene Akrich.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Colneric
• ECLI: ECLI:EU:C:2003:491
• Date: 23 September 2003
• Docket Number: C-109/01
• Procedure Type: Reference for a preliminary ruling

Case C-109/01


Secretary of State for the Home Department
v
Hacene Akrich


(Reference for a preliminary ruling from the Immigration Appeal Tribunal)

«(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)»

Opinion of Advocate General Geelhoed delivered on 27 February 2003

Judgment of the Court, 23 September 2003

Summary of the Judgment

1..

Freedom of movement for persons – Workers – Right of residence of family members – Right of residence of spouse who is a national of a non-Member State – Conditions – Lawful residence in the territory of a Member State

(Council Regulation No 1612/68, Art. 10)

2..

Freedom of movement for persons – Workers – Right of residence of family members – Right of residence of spouse who is a national of a non-Member State – Couple exercising right to freedom of movement then returning to the State of origin – Objectives pursued – Not relevant – Limits – Marriages of convenience to circumvent national rules on entry and residence in the case of nationals of non-Member States

(Council Regulation No 1612/68, Art. 10)

3..

Freedom of movement for persons – Workers – Right of residence of family members – Right of residence of spouse who is a national of a non-Member State – Couple exercising right to freedom of movement then returning to the State of origin – Refusal of entry and residence in the absence of lawful residence in a Member State – Regard paid to the European Convention on Human Rights – Right to respect for family life

(European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 8; Council Regulation No 1612/68, Art. 10)

1.

In order to be able to benefit from the rights provided for in Article 10 of Regulation No 1612/68 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 or she moves to another Member State to which the citizen of the Union is migrating or has migrated. Where a citizen of the Union moves to another Member State in order to work there as an employed person or returns to the Member State of which he or she is a national to work there as an employed person, where his or her spouse who is a national of a non-Member State does not have a right of residence in a Member State, the fact that the latter person has no right under Article 10 aforesaid to install him or herself with the citizen of the Union in the other Member State cannot constitute less favourable treatment than that which the couple enjoyed before the citizen made use of the opportunities afforded by the Treaty as regards movement of persons. Accordingly, the absence of such a right is not such as to deter the citizen of the Union from exercising the rights in regard to freedom of movement conferred by Article 39 EC. see paras 50, 53-54, 61, operative part 1

2.

Where the marriage between a national of a Member State and a national of a non-Member State is genuine, the fact that the citizen of the Union installed him or herself in another Member State in order, on their return to the Member State of which he or she is a national, to obtain for his or her spouse 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. The motives which may have prompted a worker of a Member State to seek employment in another Member State are of no account as regards his or her right to enter and reside in the territory of the latter State provided that he or she there pursues or wishes to pursue an effective and genuine activity, nor are they relevant in assessing the legal situation of the couple on its return to the Member State of which the worker is a national. Conversely, Article 10 of Regulation No 1612/68 on freedom of movement for workers within the Community 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. see paras 55-57, 61, operative part 2-3

3.

Where a national of a Member State married to a national of a non-Member State with whom he or she is living in another Member State returns to the Member State of which he or she is a national in order to work there as an employed person and, at the time of his or her return, his or her spouse does not enjoy the rights provided for in Article 10 of Regulation No 1612/68 on freedom of movement for workers within the Community because he or she 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, provided that the marriage is genuine. see para. 61, operative part 4

JUDGMENT OF THE COURT
23 September 2003 (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))

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

HaceneAkrich, 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, Advocate General: L.A. Geelhoed,
Registrar: L. Hewlett, Principal Administrator,

after considering the written observations submitted on behalf of:

─

Mr Akrich, by T. Eicke, Barrister, instructed by D. Flynn, of the Joint Council for the Welfare of Immigrants and D. Betts, Solicitor,

─

the United Kingdom Government, by J.E. Collins, acting as Agent, and E. Sharpston QC and T.R. Tam, Barrister,

─

the Greek Government, by I. Galani-Maragkoudaki and S. Vodina, acting as Agents,

─

the Commission of the European Communities, by C. O'Reilly, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr H. Akrich, represented by T. Eicke, the United Kingdom Government, represented by J.E. Collins, and by E. Sharpston QC, and the Greek Government, represented by I. Galani-Maragkoudaki and E.-M. Mamouna, acting as Agents, and the Commission, represented by C. O'Reilly, at the hearing on 5 November 2002,

after hearing the Opinion of the Advocate General at the sitting on 27 February 2003,

gives the following

Judgment

1

By order of 3 October 2000, which was received at the Court on 7 March 2001, the Immigration Appeal Tribunal referred to the Court for a preliminary ruling under Article 234 EC two questions on the interpretation of Community law concerning freedom of movement for persons and the right to remain of a national of a non-Member State who is the spouse of a national of a Member State.

2

Those questions were raised in the course of proceedings between the Secretary of State for the Home Department ( the Secretary of State) and Mr Akrich, a Morrocan national concerning his right to enter and remain in the United Kingdom.

Legislation

Community law

3

Article 39(1) to (3) EC is worded as follows:

1.

Freedom of movement for workers shall be secured within the Community.

2.

Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

3.

It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: ...

(b)

to move freely within the territory of Member States for this purpose. ...

4

Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition 1963-1964, p. 117) provides in Articles 1, 2 and 3(1) and (2) thereof: Article 1

1.

The provisions of this Directive shall apply to any national of a Member State who resides in or travels to another Member State of the Community, either in order to pursue an activity as an employed or self-employed person, or as a recipient of services.

2.

These provisions shall apply also to the spouse and to members of the family who come within the provisions of the regulations and directives adopted in...