EU national doesn’t have their passport or ID card?

Are you an EU national in a different member state?  How serious is it not to have your passport or ID card when stopped by the police?    The following is a worst case scenario, which hopefully few EU nationals will ever face:

ECJ Case C-215/03 (Oulane)  — 17 February 2005

“On 3 December 2001, Mr Oulane was stopped by the Netherlands authorities on grounds of suspicion of illegal residence. During questioning, Mr Oulane, who did not have any identity documents in his possession, stated that he was a French national staying in the Netherlands for approximately three months on holiday. The Netherlands authorities detained him with a view to deportation on the grounds, inter alia, that there was a risk that he would seek to evade deportation.”

Mr Oulane was in fact a French national, and later produced his ID card.  Several months later, police again arrested and detained him.  (Remember this was in the immediate aftermath of 9/11 when the tendency to arrest “foreign looking” people was intense).

The ECJ ruled:

  1. The third paragraph of Article 4(2) of Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services is to be interpreted as meaning that the recognition by a Member State of the right of residence of a recipient of services who is a national of another Member State may not be made subject to his production of a valid identity card or passport, where his identity and nationality can be proven unequivocally by other means.
  2. It is contrary to Article 49 EC for nationals of a Member State to be required in another Member State to present a valid identity card or passport in order to prove their nationality, when the latter State does not impose a general obligation on its own nationals to provide evidence of identity, and permits them to prove their identity by any means allowed by national law.
  3. A detention order with a view to deportation in respect of a national of another Member State, imposed on the basis of failure to present a valid identity card or passport even when there is no threat to public policy, constitutes an unjustified restriction on the freedom to provide services and is therefore contrary to Article 49 EC.
  4. It is for nationals of a Member State residing in another Member State in their capacity as recipients of services to provide evidence establishing that their residence is lawful. If no such evidence is provided, the host Member State may undertake deportation, subject to the limits imposed by Community law.
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  • john  On February 24, 2013 at 17:25

    This site is totally out of touch with reality and you continue to give incorrect advise,I have tried to advise you but you refuse to give your name and I won’t
    speak to somone who won’t give me there name and contact number.My High Court action against the Home Office has now been refered to the CJEU for a ruling on a number of points of law.I have all of the Home Office pleadings and
    I have been the first person ever to challenge these points,so please accept what I telly you is correct.The UKBA have put it in writing in there pleadings that TCN’s
    must have a family permit to enter the UK or for any carrier to take them.They
    are claiming that Article 35 of EU Directive 38 allows them to have a blanket ban
    and the Frontier Protocol allows them to prevent carriers from taking TCN’s withough the Family Permit.So,not untill my action is heard at the CJEU will
    we know if the court agrees with me or the Home Office.

  • Sean  On January 13, 2015 at 07:47

    The CJEU (case-c202/13) delivered their Judgement on the 18th December 2014.The court has ruled that the UK had acted illegally in demanding that TCN’s who hold residence cards from other member States must have a family permit before they can enter the UK.The carrier liability regulation was also
    unlawful so the UK law must now be changed to comply with EU Directive 38/2004 Article 10.

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