Ms Jia, a Chinese national, was granted a visitor’s visa for entry into the Schengen states for a visit of a maximum of 90 days. She entered the Schengen states via a Swedish airport, and subsequently applied to the Swedish authorities for a residence permit, on the basis that she was related to a national of a Member State. The Swedish authorities refused the application and the Applicant appealed the decision to Sweden’s Aliens Appeal Board. The Board asked the European Court of Justice whether, in light of the judgment in Akrich, Article 10 of Regulation (EEC) No 1612/68 was to be interpreted as meaning that a national of a non-Member State related to a worker must be lawfully within the Community in order to have the right permanently to reside with the worker.
The Court noted that it was not alleged that Ms Jia had been residing unlawfully in a Member State or that she had been seeking to evade national immigration legislation. The Court found that the condition of previous unlawful residence in another Member State, as formulated in the judgment in Akrich, could not be transposed to Ms Jia’s case and could not apply to such a situation.