Conflicting competences: free movement rules and immigration laws

Abstract:

The Court of Justice's judgment in the Akrich case rules that an illegal immigrant who is married to a citizen of the European Union cannot rely on Community rules when returning to the Member State in which he or she has been an illegal immigrant.

Community law rights are only available to those whose residence in the Member State was lawful. But in determining whether such a person should be admitted to that state after having moved to another Member State, the immigration authorities are required to carry out an individual assessment of the applicant's circumstances which must be informed by due regard for the provisions of Art.8 of the European Convention on Human Rights. The new Directive on family reunification for third country nationals lawfully resident in a Member State also displays the requirement to have regard to human rights considerations. Read together it is possible to discern the emergence of a European Union right to family life applicable both to citizens of the Union and third country nationals.