C-109/01 Home Secretary v Akrich [2003] ECR I-9607

Plaintiff (Moroccan), married to a UK national, had been illegally residing in UK. His wife relocated to Ireland to work and Plaintiff agreed to join her. After 6 months they tried to return to the UK, circumventing immigration laws by claiming Plaintiff’s right to move to UK as a spouse of a MS worker (under reg 1612/68).

CFI held that to benefit from such a right the spouse must be lawfully resident in a member state when they move to another member state to which the EU national is migrating or has migrated.

The Court did, however, point out that where the marriage was genuine, in deciding on whether to admit the third-country national, despite their unlawful status under the member state's immigration law, respect for family life under Article 8 of the European Convention on Human Rights should be taken into account.

Article 39 EC is NOT infringed where the spouse didn’t enter the country lawfully in the first place.

• This approach appears to contradict the trend set in Carpenter and MRAX