Case C-127/08 Metock et al [2009] 46 CMLRev 587

Here the ECJ explicitly overruled Akrich (not just confining it as in Jia), so that a third-country family member no longer has to show prior ‘lawful residence’ within the EU in order to trigger Community protection.

It argued that there was nothing in regulation 2004/38 that allowed MSs to impose such a restriction

Also Article 3(1) (“This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members accompanying them, as defined in Article 2") of Directive 2004/38 must be interpreted as meaning:

• that a national of a non-member country who is the spouse of a Union citizen residing in a Member State whose nationality he does not possess and who accompanies or joins that Union citizen benefits from the provisions of that directive, irrespective of when and where their marriage took place and of how the national of a non-member country entered the host Member State.