1 Department of Business Law, Aarhus School of Business, Aarhus BSS, Aarhus University2 Centre for International Business Law (CIBL), Aarhus School of Business, Aarhus BSS, Aarhus University3 Department of Law, Aarhus BSS, Aarhus University4 Department of Law, Aarhus BSS, Aarhus University
To promote the exercise of free movement of persons, Member States have adopted various bouts of secondary legislation. For Union citizens, the rules entitle accompaniment or later joining by family members, irrespective of nationality. And a common belief persisted that where such family members were third-country nationals, it did not matter whether they already had a right to reside within the EU or they entered the host state directly from outside the EU. On this basis, Community law was generally seen as a mechanism through which the EU could be opened up to third-country family members in spite of prohibitive domestic family reunion rules in the Union citizens' home state. Furthermore, Union citizens who had exercised free movement could rely on Community law when moving back to their home state, thereby acquiring a right of residence for such family members. Community law was in effect offering a way of getting round national immigration law. But in Akrich, the Court of Justice decided that third-country family members have to show prior 'lawful residence' within the EU in order to trigger Community protection; a decision which attracted much attention. An interpretation of Akrich was sought in Case C-1/05, Jia, and though keenly anticipated, Jia is a let down for those seeking clarity and guidance, especially as to what is meant by 'lawful residence'. However, on further examination the ruling provides scope to debate unresolved issues, provided one is willing to scratch beneath the surface to get a bit closer to deciphering the lie of this fascinating and delicate area of law and policy.
Common Market Law Review, 2007, Vol 44, Issue 3, p. 787-801
EU law, free movement of persons, Jia, lawful residence