«(Freedom of movement for workers – National of a non-Member State who is the spouse of a national of a Member State – Spouse under a prohibition on entering and remaining in that Member State – Temporary establishment of the couple in another Member State – Establishment with a view to acquisition by spouse of a right under Community law to enter and remain in the first Member State – Abuse)»

1.. Freedom of movement for persons – Workers – Right of residence of family members – Right of residence of spouse who is a national of a non-Member State – Conditions – Lawful residence in the territory of a Member State (Council Regulation No 1612/68, Art. 10)

2.. Freedom of movement for persons – Workers – Right of residence of family members – Right of residence of spouse who is a national of a non-Member State – Couple exercising right to freedom of movement then returning to the State of origin – Objectives pursued – Not relevant – Limits – Marriages of convenience to circumvent national rules on entry and residence in the case of nationals of non-Member States (Council Regulation No 1612/68, Art. 10)

3.. Freedom of movement for persons – Workers – Right of residence of family members – Right of residence of spouse who is a national of a non-Member State – Couple exercising right to freedom of movement then returning to the State of origin – Refusal of entry and residence in the absence of lawful residence in a Member State – Regard paid to the European Convention on Human Rights – Right to respect for family life (European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 8; Council Regulation No 1612/68, Art. 10)

JUDGMENT OF THE COURT 23 September 2003 (1)

((Freedom of movement for workers – National of a non-Member State who is the spouse of a national of a Member State – Spouse under a prohibition on entering and remaining in that Member State – Temporary establishment of the couple in another Member State – Establishment with a view to acquisition by spouse of a right under Community law to enter and remain in the first Member State – Abuse))

In Case C-109/01,

REFERENCE to the Court under Article 234 EC by the Immigration Appeal Tribunal (United Kingdom) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Community law on freedom of movement for persons and the right to remain of a national of a non-Member State who is the spouse of the national of a Member State,

THE COURT,,

composed of: G.C. Rodríguez Iglesias, President, J.-P.- Puissochet, M. Wathelet, R. Schintgen and C.W.A. Timmermans (Presidents of Chambers), D.A.O. Edward, A. La Pergola, P. Jann, F. Macken, N. Colneric (Rapporteur) and S. von Bahr, Judges,

Advocate General: L.A. Geelhoed,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of Mr H. Akrich, represented by T. Eicke, the United Kingdom Government, represented by J.E. Collins, and by E. Sharpston QC, and the Greek Government, represented by I. Galani-Maragkoudaki and E.-M. Mamouna, acting as Agents, and the Commission, represented by C. O'Reilly, at the hearing on 5 November 2002,

after hearing the Opinion of the Advocate General at the sitting on 27 February 2003,

gives the following

Community law

...

...

Article 2

Article 3

...

National law

General

Discretionary power of the Secretary of State

Deportation

(c)on his return to the United Kingdom, the United Kingdom national would, if he were an EEA national, be a qualified person; and

On those grounds,

THE COURT,

in answer to the questions referred to it by the Immigration Appeal Tribunal by order of 3 October 2000, hereby rules:

Rodríguez Iglesias

Puissochet

Wathelet

Schintgen

Timmermans

Edward

La Pergola

Jann

Macken

Colneric

von Bahr

Delivered in open court in Luxembourg on 23 September 2003.

R. Grass

G. C. Rodríguez Iglesias

Registrar

President