CELEX: C2003/275/15
Language: en
Date: 2003-11-15 00:00:00
Title: 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)

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                   the national of a Member State, the Court, composed of:
     require the Member State which detects an offence or irregularity      G.C. Rodríguez Iglesias, President, J.-P.- Puissochet, M. Wathe-
     in connection with a transport operation under cover of a TIR          let, R. Schintgen and C.W.A. Timmermans (Presidents of
     carnet, in addition to making the notifications prescribed in          Chambers), D.A.O. Edward, A. La Pergola, P. Jann, F. Macken,
     Article 455(1) of that regulation and an enquiry to the office         N. Colneric (Rapporteur) and S. von Bahr, Judges; L.A. Geel-
     of destination, to investigate the actual place where the offence      hoed, Advocate General; L. Hewlett, Principal Administrator,
     or irregularity was committed and the identity of the customs          for the Registrar, has given a judgment on 23 September
     debtors, by seeking the administrative assistance of another           2003, in which it has ruled:
     Member State for elucidation of the facts.
(1) OJ C 118 of 21.4.2001.                                                  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-
                 JUDGMENT OF THE COURT                                           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.
                     of 23 September 2003
                                                                            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
in Case C-109/01 (Reference for a preliminary ruling from
                                                                                 spouses installed themselves in another Member State in order,
the Immigration Appeal Tribunal): Secretary of State for                         on their return to the Member State of which the former is a
         the Home Department v Hacene Akrich (1)                                 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.
(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                    4.   Where a national of a Member State married to a national of
of the couple in another Member State — Establishment                            a non-Member State with whom she is living in another
with a view to acquisition by spouse of a right under                            Member State returns to the Member State of which she is a
Community law to enter and remain in the first Member                            national in order to work there as an employed person and, at
                          State — Abuse)                                         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,
                         (2003/C 275/15)                                         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-
                   (Language of the case: English)
                                                                                 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                  (1) OJ C 150 of 19.5.2001.
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