Spaventa, E. (2005) 'Case C-109/01, Secretary of State for the Home Department v. H. Akrich.', Common market law review., 42 (1). pp. 225-239.
The ruling in Akrich, delivered by the full Court, concerns fundamental issues of policy in relation to the impact of Community law upon Member States immigration rules: how far can the Union citizens’ right to gain entry and residence permits for their spouses in situations regulated by Community law be used to circumvent the national provisions controlling migration fluxes from outside the Union? Can a Union citizen’s spouse who is unlawfully present in the Union territory rely on Community law to rectify his legal situation? The issue is one of great importance for migration policies: first of all, there is a significant danger of marriages of convenience; secondly, there is a widespread tendency to penalise abuses of immigration rules with deportation. Thus, many Member States provide that marriage can never be used to rectify the illegal status of a third country national, and that therefore a person who is unlawfully present within the State’s territory has in any case to leave and apply for entrance clearance from her own State of origin. However, if the situation were to fall within the scope of Article 10 Regulation 1612/68, deportation would not be possible unless justified by the public policy derogation. It is clear that the right to family reunification provided by secondary legislation was drafted with a very simple situation in mind – that of a Union citizen, already married to a third country national,4 who wished to move to another Member State to there exercise an economic activity. Since the Union citizen was assumed to have a right to live with her spouse in the country of origin, deprivation of that right would result in a significant hindrance to movement. However, in such a simple scenario, the Member State of origin would have already cleared the immigration status of the third country national spouse; in this sense Article 10 Regulation 1612/68 might be seen as requiring a sort of mechanism of mutual recognition, intended to make the enjoyment of the free movement rights fully effective. However, matters become more complicated when the immigration status of the third country national has not been previously cleared, either because she was unlawfully present in the Union territory at the time of marriage, or because marriage post-dates movement. In those cases, Community law might well impinge upon migration policies, an area which is tainted by complex political choices, as well as much populist rhetoric.
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|Publisher statement:||Reprinted from Common market law review, 42 (1), 2005, pp. 225-239, with permission of Kluwer Law International.|
|Record Created:||27 Mar 2012 17:35|
|Last Modified:||02 Jun 2016 14:45|
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