This is a case decided by the European Court of Justice [ECJ] in July 2008 on a reference made to it by the Irish High Court. It is concerned with the interpretation of Directive 2004/38/EC (sometimes referred to as the Citizens Directive) on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. The main Article of the Directive which was in issue is Article 5.1 which requires Member States to grant to EU citizens leave to enter with a valid identity card or passport and to grant family members who are not nationals of a Member State leave to enter with a valid passport….
….Concerns have been expressed in the UK and in other Member States that the effect of the judgment will be to make it more difficult to tackle fake marriages, trafficking and people smuggling. It certainly weakens the effectiveness of the Immigration Rules relating to persons already in the country being joined by spouses, parents or children. In the case of spouse visas, paragraph 281 of the Immigration Rules requires inter alia that the applicant can demonstrate that there will be adequate accommodation for the parties in the UK and that they will be able to accommodate and maintain themselves without recourse to public funds. In the case of parents and other dependent relatives paragraphs 317 –319 of the Immigration Rules they must be either over 65 or be living in the most exceptional, compassionate circumstances. In both these cases it is no longer lawful to apply these requirements to third country nationals falling within the scope of the Directive.
The outcome of the case is hardly surprising, given the clear language of the Directive and the applicability of Article 8 of the ECHR. The UKBA will need to be ever vigilant in making good use of Articles 27 and 35, particularly the latter because of the likely extent of abuse by fake marriages.