Border officials cannot require answers to immaterial questions

ECJ case C-68/89 Commission v Netherlands [1991] makes clear that EU citizens are not required to answer border officials’ questions about the purpose and duration of their journey, nor about how much money they have for the journey.

Though this particular case concerned an EU citizen, the ruling applies equally to border officials, such as United Kingdom Border Agency ECOs, who issue the visas that enable free-movement of family members of EU citizens.  If it is prohibited to require of the EU citizen, then border officials cannot bypass that prohibition by simply requiring that same information instead from their accompanying non-EU spouse.

Moreover, these questions are no more relevant for a family member then they are for an EU citizen.   The conditional free movement rights of the non-EU family member derive directly from their relationship to the EU citizen (MRAX, paragraph 74).    The visa is a formality to pre-validate the family relationship and facilitate the applicant’s travel arrangements.

The visa does not depend on assets the applicant has, or on what they plan to do during the trip.

Refusal to answer such not-material questions cannot justify curtailing the applicant’s right of free movement (see “Restrictions on freedom of movement”).

ECJ case C-459/99 MRAX v Etat Belge [2002] is clear that what is required for entry of the family member who does not have a required visa is two things: proof of their family relationship (e.g. a marriage certificate) to the EU citizen and proof of their identity (e.g. a passport).   There is no requirement outlined that the family member must answer non-material questions of the border official.

NOTE: This post was originally written as part of a complaint to the European Commission about UKBA (the British immigration agency) handling of EEA Family Permits, hence the references to the UK.   But each EU member state must reflect ECJ court decisions in their national law and practice, and do so faithfully to the original decision.  This case and European free movement law applies equally in each of the 27 member states!

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  • MAA  On November 12, 2012 at 23:34

    Hi there,
    I have a question about free movement that you might be able to answer.

    My wife is a British citizen and I am an non-EEA citizen. We lived in Ireland before coming to the UK. We used the Surrinder Singh case to come to the UK. After entering the UK, I applied for residence card and was issued one. After two years of living in the UK, my wife and I went to the USA as part of an exchange program for my undergraduate studies. My wife was doing voluntary work in the USA. We came back to the UK after about 11 months and I finished my course here in the UK. Since our return, we have been living in the UK continuously. After 5 years living in the UK (discounting the one year in the USA) I applied for my permanent residence and it was refused on the ground that we lived abroad for a year and thus we have not lived in the UK for a continuous 5 years.

    I have appealed the decision. We are going to argue that under Immigration regulation 2006, article 3(2)(c), my absence should be seen as important and thus the continuity of the residence is not broken. For my wife, we are going to argue that ECHR article 8 states that family life should be respected and her accompanying me to the States should be seen as an important reason too.

    The only thing that I cannot argue against, is the fact that my wife’s absence from the UK for 11 months may have affected the application of Surrinder Singh case to her. Does her stay in the USA for 11 months means that the Surrinder Singh case does not apply to her any more? Is there a court case, or regulation that makes this clear?

    Many thanks.

  • Lisa  On January 2, 2014 at 14:35

    Hello, this is such an informative website on EU law!

    I have two questions.

    1. If my family members already have their “residence card for family members of Union citizens” and they travel constantly in and out of Schengen (many times without me), should they carry every time a bunch of documents to prove our relationship and my treaty rights or are border officials not even allowed to question them?

    2. Can my family members who already have their “residence card for family members of Union citizens” use the faster EU line at any EU airport even when I’m not traveling with them?

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