Judgment of the Court of 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 (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)
Date: 2003-11-15
Institutions: Court of Justice
Subjects: EU national, admission of aliens, interpretation of the law, labour law, mixed marriage, removal

15.11.2003

EN

Official Journal of the European Union

C 275/9

3. Articles 454 and 455 of Regulation No 2454/93 do not
require the Member State which detects an offence or irregularity
in connection with a transport operation under cover of a TIR
carnet, in addition to making the notifications prescribed in
Article 455(1) of that regulation and an enquiry to the office
of destination, to investigate the actual place where the offence
or irregularity was committed and the identity of the customs
debtors, by seeking the administrative assistance of another
Member State for elucidation of the facts.

the national of a Member State, the Court, composed of:
G.C. Rodríguez Iglesias, President, J.-P.- Puissochet, M. Wathe-
let, 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. Geel-
hoed, Advocate General; L. Hewlett, Principal Administrator,
for the Registrar, has given a judgment on 23 September
2003, in which it has ruled:

(1) OJ C 118 of 21.4.2001.

JUDGMENT OF THE COURT

of 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)

(2003/C 275/15)

(Language of the case: English)

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 Fundamen-
tal Freedoms, signed at Rome on 4 November 1950, provided
that the marriage is genuine.

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

(1) OJ C 150 of 19.5.2001.