C-1/05, Jia

The Court of Justice today further clarified its Akrich judgment of 2003.

C-1/05 concerned Ms Jia, who had applied in Sweden for a residence permit, on the basis that she was related to a national of a Member State.

The application was rejected on the ground that there was insufficient proof of the situation of financial dependence. It was ordered that she should be returned to her country of origin or to another country if she showed that another country would accept her. Ms Jia appealed against that decision at the Utlänningsnämnden (or Aliens Appeals Board), a Swedish government agency that answered to the Ministry for Foreign Affairs and which powers were similar to those of a court of law (the Board was discontinued and replaced by Migration Courts on 31 March 2006).

The Utlänningsnämnden referred several questions to the European Court of Justice, asking inter alia whether Community law, in the light of the judgment in Akrich, required Member States to make the grant of a residence permit to a national of a non-Member State, who was a member of the family of a Community national who had exercised his right of free movement, subject to the condition that that family member had previously been lawfully resident in another Member State.

The Court today held that no such requirement followed from Community law in general or from the Akrich judgement, more specifically.

The Court furthermore held that Directive 73/148 required that members of the family of a Community national established in another Member State within the meaning of Article 43 EC need the material support of that Community national or his or her spouse in order to meet their essential needs in the State of origin of those family members or the State from which they had come at the time when they applied to join that Community national.

The Court argued that Article 6(b) of that directive must be interpreted as meaning that proof of the need for material support might be adduced by any appropriate means, while a mere undertaking from the Community national or his or her spouse to support the family members concerned need not be regarded as establishing the existence of the family members’ situation of real dependence.

Text of Judgment

Text of Akrich- case