Mr Akrich, a Moroccan citizen, was deported from the UK. He returned there illegally and married a British citizen while unlawfully in the State. He applied for leave to remain, but was refused and deported to Ireland, where his spouse was established. His spouse subsequently took up a position in the UK, and Mr Akrich applied to the UK for leave to enter as the spouse of a person settled there. Mr and Mrs Akrich stated to the UK authorities that they intended to return to the United Kingdom because they had heard about EU rights. The Secretary of State refused the application, finding that the move to Ireland was deliberately designed to manufacture a right of residence, and to evade immigration law. Mr Akrich appealed against this refusal. The Immigration Appeal Tribunal asked the European Court of Justice (ECJ) whether, in such circumstances, the Member State of origin could refuse a spouse who is a national of a non-member country the right to enter the State, and whether it could take into account the fact that the motive was to claim the benefit of Community rights on returning to the Member State of origin.
The Court held that under Community law a Member State is obliged to grant leave to enter and remain to the spouse of a national of that State who has gone, with his or her spouse, to another Member State in order to work there as an employed person and who returns to settle in the territory of the State of which he or she is a national, but that Community law and, in particular, Regulation (EEC) 1612/68 on freedom of movement for workers, referred only to freedom of movement within the Community and was silent in regard to access to the territory of the Community. The Court held that in order to benefit from the right to install himself with the citizen of the Union, the spouse must be lawfully resident in a Member State when he moves to another Member State to which the citizen of the Union migrates. The Court stated that the motives of the citizen intending to seek work in a Member State were irrelevant, and that such conduct could not constitute abuse even if the spouse did not have a right to remain in the Member State of origin at the time when the couple installed themselves in another Member State.
The Court stated that there would be an abuse if the Community rights had been invoked in the context of marriages of convenience entered into in order to circumvent the national immigration provisions. The Court stated that where a marriage is genuine the authorities of the State of origin must take account of the right to respect for family life under Article 8 of the Convention on Human Rights.
