Luxembourg, 23/09/2003 (Agence Europe) - When a spouse is a third country national and the other a citizen of a Member State, the couple may avoid the refusal by this Member State of hosting the foreign spouse by provisionally locating that person in another Member State and then invoking the right to free movement of workers.
In its Hacene Akrich ruling, the Court of Justice (11 judges) supported a Moroccan national who had heard talk of community rights, according to which, by remaining for six months (in another Member State) one may return to the United Kingdom.
It also indicated that there would only be infringement if Community rights had been invoked in the context of a marriage of convenience.
Hacene Akrich returned to the United Kingdom in 1989 with a tourist visa. His application for residency as a student had been refused. In 1990, he was condemned for attempted theft and the use of a stolen identity card. Deported to Algeria, he returned to the United Kingdom in 1992 under a false French identity and was once more deported. In 1996, while residing illegally in the United Kingdom, he married a British national, Helina Jazdzewska, and requested the right to residency as a spouse of a British national. In August 1997 he was deported to Dublin where his spouse resided since June 1997 and worked as a full-time employee. From the month of August 1998 she was offered a position in the United Kingdom.
Following his request for entry into the United Kingdom, Hacene Akrich was questioned at the British Embassy in Dublin. It is there that Mr Akrich stated his believed right to enter the United Kingdom after having followed his wife to another Member States under the right to the free movement of persons.
The Secretary of State for the Home Office refused him entry onto British soil. Reason: the move to Ireland by the Akrich couple was nothing other than a temporary absence deliberately aimed at forging a right to residency for My Akrich and at avoiding the provisions set out in British legislation.
The case was referred to the Immigration Appeals Tribunal and it asked the Court whether the United Kingdom could refuse the right to entry to the Moroccan spouse. The Court answered negatively. European law authorises Hacene Akrich to enter the United Kingdom from the moment he has legally resided in another Member State (Ireland).
The Court adds that, even if the European Human Rights Convention does not guarantee any right to a foreigner entering or residing on the territory of a determined country, excluding a person from a country where his close family lives may constitute an infringement to the right to respect for family life as protected by Article 8, paragraph 1, of the said Convention.
European judges reject the idea that there could have been an infringement if a third country national resides in a Member State to more easily return to his favoured Member State. They argue that there would only have been an abuse if there had been a marriage of convenience.
It should be noted that Council Resolution of 4 December 1997, on the measures to be adopted in terms of the fight against marriages of convenience, specifies the factors leading to presume there has been such a marriage. Among these factors: the spouses do not speak a mutually comprehensible language, the spouses have never met before the marriage or the past of one or both spouses indicates previous marriages of convenience or irregularities in residency.
The Immigration Appeals Tribunal will rule on the case of Mr Akrich.