The right of citizens of the Union and their family members to move and reside freely within the EU
By: Ganado Advocates
On the 18 June 2020, the Court of Justice of the European Union (the “CJEU” or the “Court”), delivered a preliminary ruling in proceedings between Ryanair Designated Activity Company (“Ryanair”) and the National Police Headquarters, Hungary (“Authority”) in relation to the proper interpretation of certain provisions found in Directive 2004/38/EC 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 “Directive”). #
On the 9 October 2017, the police at Liszt Ferenc Airport in Budapest were screening passengers on a Ryanair-operated flight arriving from London. A Ukrainian national who held a non-biometric passport and a valid permanent residence card issued by the United Kingdom in accordance with Article 20 of the Directive did not have a visa. Under Hungarian law, the absence of a visa meant that the passenger did not have all the required paperwork to enter Hungary and consequently was refused entry. Furthermore, the Authority requested Ryanair to transport him back to the UK.
In addition, Ryanair was fined €3,000 by the Authority, for failing to ensure that the passenger was in possession of the necessary travel documents. Ryanair challenged the imposition of the fine before the Administrative and Labour Court of Budapest, Hungary (the “Tribunal”). Particularly, Ryanair argued that the passenger was authorised to enter Hungary without a visa since he had a permanent residence card issued by the UK pursuant to the Directive. The Tribunal requested a preliminary ruling from the Court on the certain matters, including, inter alia: whether third country nationals holding a permanent residence card issued under the Directive are exempt from the requirement of having a visa; and whether the benefit of such exemption extends to third country nationals where such a residence card has been issued to them by a Member State which, like the UK, was not part of the Schengen area; and In assessing the aforementioned questions, the Court had to consider the scope of application of the Directive together with the relevant provisions relating to the issuance of residency cards to third country nationals (Article 10 (1) of the Directive) and the issuance of permanent residency cards to third country nationals (Article 20 of the Directive).
Primarily the Court held that the Directive is applicable “to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members … who accompany or join them.” In relation to the ‘Right of Exit and Entry’, the Directive provides that “Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport.” Article 5(2) provides that those family members who are third country nationals shall only be required to have an entry visa in accordance with Council Regulation (EC) 539/2001 regulating those third country nationals who must be in possession of visas when crossing the external borders and those third country nationals who are exempt from that requirement (now repealed by Regulation (EU) 2018/1806).
Nevertheless, Article 5(2) further provides that possession of a valid residence card issued under Article 10(1) shall exempt such third country family members from the visa requirement. The Court noted that the wording of Article 5(2) does not refer to the permanent residence card referred to in Article 20 of the Directive but to the residence card issued under Article 10(1). However, the Court held that such an absence does not establish, a contrario sensu, the intention to exclude the family members of an EU citizen who holds a permanent residence card from the benefit of the visa exemption requirement provided for in Article 5(2) of the Directive. In accordance with settled case-law, it is necessary to interpret said provision by taking into consideration not only its terms, but also its context and the objectives of the legislation of which it forms part. The Court pointed out that the residence card referred to in Article 10 and the permanent residence card referred to in Article 20 are both documents which, if held by family members of an EU citizen who are third country nationals, certify that they have a right of residence, and therefore of entry, in the territory of the Member States.
Moreover Article 20(2) of the Directive states that a permanent residence card may only be issued to persons who have first obtained a residence card for a family member of an EU citizen. It follows that third country family members of an EU citizen who are issued with a permanent residence card are necessarily persons who have previously benefited, as holders of a residence card, from the exemption from the requirement to obtain a visa provided for in Article 5(2) of the Directive. In light of the foregoing, the Court held that possession of the permanent residence card referred to in Article 20 of the Directive exempts a person who is not a national of a Member State, but who is a family member of an EU citizen, from the obligation to obtain a visa in order to enter the territory of the Member States. In relation to the second matter raised by the Tribunal, the Court noted at the outset, that the provisions applicable to the Schengen area expressly state that they do not affect the freedom of movement of Union citizens and their family members accompanying or joining them. Accordingly, the provisions of the Directive apply without distinction to all Member States, whether or not they are part of the Schengen area. Accordingly, the exemption enjoyed by third country nationals who are in possession of a permanent residence card under Article 20 of the Directive is applicable even where the card was issued by a Member State which is not part of the Schengen area. This article was written by Dr Saman Bugeja (Associate, Corporate - https://ganadoadvocates.com/people/saman-bugeja-2/)
_______________________________________________  Article 3(1) of the Directive  Article 5(1) of the Directive  Article 10(1) of the Directive: ‘The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the date on which they submit the application. …’ This article was first published in the Malta Independent, 1 July 2020.