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Right of residence of the foreign spouse married to a European

(B2) Returning to its previous position (*), the Court of Justice of the European Communities (ECJ) decided on July 25 that a foreigner, outside the European Union (EU), married to a citizen ) European, can “accompany” or “join” him/her when he/she makes use of his/her right to free movement within the Union. More specifically, the Court states that the Directive on the freedom of movement of Union citizens and their family members (**) precludes legislation, such as that equivalent to Ireland, which requires the national foreigner to have resided legally in the European Union before getting married in order to be entitled to residency (Judgment CJCE Metock and others, C-127 / 08).

In this case, the asylum applications of foreign spouses had been rejected for four mixed couples residing in Ireland and were threatened with deportation. The Irish High Court asked whether European law authorizes a Member State to make the right of residence of a foreign spouse conditional on having previously resided legally in the European Union. The higher objectives of Community law, such as the freedom of movement of people within the Union but also the assurance of a normal family life for European families, have tipped the scales. The Court decides that neither a previous marriage nor a prior legal residence can be required of a foreign spouse to accompany or join their European spouse within the Union.

A decision which could have consequences on French law on the residence of foreigners which currently provides for the requirement of a degree of knowledge of the French language and the values ​​of the Republic, a requirement not provided for by the directive.


(*) the Akrich judgment of September 22, 2003
(**) Directive no. 2004/38/EC of 29 April 2004, OJ L 158 of 30-04-04, p. 77

(Article published in Weekly Social News – © ASH/AC)

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).