Keywords
Summary

Keywords

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)

Summary

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