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!

If you are also British, then you are only British!

UKBA’s new EEA regulations (The Immigration (European Economic Area) (Amendment) Regulations 2012) state that when an EEA national is also British, then the EEA free movement regulations do not apply to them:

“EEA national” means a national of an EEA State who is not also a United Kingdom national. (regulation 2, as amended)

This amendment of the definition of an EEA national reflects the ECJ’s judgment in the case of C-434/09 Shirley McCarthy v Secretary of State for the Home Department. (from the Explanatory Note at the bottom)“

Ms. McCarthy, in case C-434/09, was (1) not working or otherwise exercising any treaty rights and (2) had not previously asserted her Irish citizenship in a practical way, e.g. by holding an Irish passport.  The court held that EU free movement law did not apply to her or her family.  In their conclusion, the court limits the judgement to somebody:

“who has never exercised his right of free movement,  who has always resided in a Member State of which he is a national and who is also a national of another Member State”

These three careful qualifications of the ECJ judgement are entirely missing from these new UK regulations.   UKBA has taken an extremely broad interpretation of the judgement!

Does it matter?

I know a lovely Dutch family who lives in the UK. They do all the curious things you might expect of Dutch people, such as skating on frozen canals, taking camper vans to far corners of the world, and eating Hagelslag on toast.  They have two children who were born in the UK.  Each child has a Dutch passport and clearly thinks of himself as “European”.

We can assume they are also very likely British, because they were born in the UK to working European parents.

Under UKBA’s new interpretation of McCarthy, UKBA simply ignores the Dutch citizenship of each child for the purposes of free movement.   According to UKBA, the entirety of the European free movement regulations simply no longer apply.

Should the children someday marry a person who is not from the EU, UKBA claims their spouse would not have a European right of free movement to enter the UK.   Their only remaining free movement option would be if the Dutch child had worked in a different EU member state and was now “returning” to the UK on the basis of EU law (ECJ 1992 Surinder Singh case).

On what basis could these Dutch children themselves enter the UK?  Remember that UKBA claims the European free movement regulations no longer apply to them, including Regulation 11 (on Europeans entering the UK).   Good news is that if UKBA claims they are British, then they can always enter the UK even without a passport.

This rule also has significant implications for any EU citizen who decides to naturalize as a British citizen.  Once naturalized, EU free movement law will no longer apply to their family members.  Any family member will be required to enter the UK on the basis of traditional British law.

A Polish worker in the UK who naturalizes to be British after working and living in the UK for 6 years may be surprised to find that because of naturalizing, UKBA has disqualified them from using the free movement options they should have to bring their elderly parent(s) to the UK.

On a lighter note, a fun thought-experiment suggests this could solve other problems for UKBA.  It gives UKBA the ability to eliminate all family member free movement to the UK and easily meet their “public commitments” to reduce immigration, all with only one act of parliament. Remember that citizenship policy is solely determined by each member state. Parliament could legislate that all citizens of other EU member states are now also British citizens. Instantly none of their family members would be able to enter the UK on the basis of EU free movement law (since each EU citizen is now also British!).  And if any of those dual citizens does still come, they would do so as a returning British citizen, making the net immigration statistics even better.

Same sex marriage and free movement

Six EEA countries now perform same sex marriages: Belgium, Iceland, the Netherlands, Norway, Portugal, Spain, and Sweden.   Outside the EU/EEA, Canada, Argentina, and some US states (including New York, Vermont, Connecticut, Iowa and Massachusetts) also happily marry same sex couples.

The EU free movement Directive 2004/38/EC does not explicitly refer to same sex marriages.   Point 2 of Article 2 does talk about “spouses”  and “partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a [EU/EEA] Member State” (see full definition of direct “Family Member”).

An older ECJ case, State of the Netherlands v Ann Florence Reed. [1986] EU ECJ R-59/85 (17 April 1986), seems to leave plenty of room for same-sex spouses to be just like any other spouse in “a marital relationship”:

14 Article 10 (1) of Regulation no 1612/68 provides that certain members of the ‘family‘ of a worker, including his ‘spouse’, irrespective of their nationality, ‘have the right to install themselves with a worker who is a national of one member state and who is employed in the territory of another member state’.

15 In the absence of any indication of a general social development which would justify a broad construction, and in the absence of any indication to the contrary in the regulation, it must be held that the term ‘spouse’ in Article 10 of the regulation refers to a marital relationship only.

What does the EU citizen need to do?

What must an EU citizen be doing in order to be legally resident in a host member state?

Period in host member state	Any Conditions or Requirements on EU citizen?	Notes
Before initial entry	None!	EU citizen does not need to be in a particular member state or even in the EU. They do not need to have work arranged in the host member state.
Entry to 3 months	None! EU citizen is automatically legally resident in the host member state.	EU citizen is automatically resident in all cases, whether they are there on holiday, looking for work, working, or anything else.
3 months to 5 years	Some requirements. EU citizen is normally required to be working, a jobseeker, self sufficient, self employed, a student, or otherwise exercising EU “treaty rights”.  (The UKBA term for this is a “qualified person”). Special rules apply if the EU citizen has been injured while working, or is involuntarily unemployed. Citizens of Romania and Bulgaria may have temporary work restrictions in some member states. If so, EU citizen is legally resident in the host member state.	“Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.” (Directive 2004/38/EC)
More than 5 years	None! EU citizen automatically has Permanent Residence (PR) after 5 years of legal residence in the host member state.	Permanent Residence (PR) is only ever lost with an absence from the host member state of more than 2 consecutive years. Somebody with PR is not required to be working, or have savings. A “PR Card” simply confirms the already-existing Permanent Residence.

Free movement rights can only be curtailed on the exceptional grounds of public health, national security and public policy. This must be proportionate, very well grounded, can only be done in clearly proscribed situations, and there is a full right of appeal.  For most people this is a total non-issue.  (For reference, Germany refuses entry to less than 10 EU citizens per year on these grounds).

It is worth noting that the chart applies to both:

1. An EU/EEA citizen who moves to a host member state different than the member state of which they are a citizen (e.g. A German citizen moving to France)
2. An EU/EEA citizen who has been working or self-employed in a host member state, and who now wishes to return to their country of citizenship (e.g. A British citizen who has been working in Italy and now wants to return to the UK).  In such a case, the non-EU family is allowed to use EU free movement law for entry (ECJ case of Singh).   Once safely back in their home member state, the “EU citizen” is not required to work during the initial 5 years (ECJ ref)

Case C‑68/89 Commission v Netherlands [1991]

I have moved this blog post to it’s own page.

Click here (Case C‑68/89 Commission v Netherlands [1991]) to go to the real thing.

upcoming ECJ case C-83/11 on “Other family members”

Directive 2004/38/EC has a section (“Article 3 – Beneficiaries”) on other family members who are “beneficiaries”.  Beneficiaries are more distant family members who do not have semi-automatic rights that can be proven with a birth or marriage certificate.

This part of the Directive is vaguely written, probably intentionally so.  It uses slippery phrases like “should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons”.

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).

No visa but still want to travel?

Are you a direct family member of an EU citizen and you need to travel within Europe with your EU family member, but do not have a required visa?

If you have a “Residence Card” for a family member of an EU/EEA citizen, then you in most cases do not need a visa.  If you do not have this Residence Card, you may need a visa (depending on which passport you hold).

If you can get the visa in time for your travel, then do that!  It should be issued easily.  Travel is a lot easier if you have the visa and don’t need to worry.  See: Requirements for a short stay visa as family member of an EU citizen.   Also be sure to see the warnings at the end of this posting!

But non-EU family members of EU citizens have a fundamental right (coming from the EU treaties) to travel together with their EU family members to any of the EU member states, even if they do not have the required visa.  This right has been clarified and upheld in 2002 by the highest European court, the ECJ, in the case C-459/99 (MRAX vs Kingdom of Belgium), and has been incorporated explicitly into Directive 2004/38/EC.

C-459/99 (MRAX vs Kingdom of Belgium)

The operative part of the ECJ decision C-459/99 (MRAX vs Kingdom of Belgium) (summary PDF of MRAX decision, full text of MRAX decision) reads:

1. On a proper construction of Article 3 of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, Article 3 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 and Council Regulation (EC) No 2317/95 of 25 September 1995 determining the third countries whose nationals must be in possession of visas when crossing the external borders of the Member States, read in the light of the principle of proportionality, a Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health within the meaning of Article 10 of Directive 68/360 and Article 8 of Directive 73/148.

General Information

Travelling without a visa can be a pain, even after the MRAX ECJ ruling.  If somebody official says you need a visa, it is usually easiest to get one and travel with that.   If you travel without a required visa, there are a number of challenges you may need to overcome.

In the following, it is essential to be aware:

1. These are suggestions that may ease your entry without a visa. They should not be taken as legal advice and come with no guarantee. If you want a guarantee, get a visa!
2. European free movement rules apply when traveling to an EU country different than the citizenship of the EU family member.  e.g. If the EU family member has French citizenship, then the rules apply for entry into all EU countries other than France.   These rules only apply for travel back to the EU “home country” when the EU family member has recently been working in another EU member state.  e.g. The rules apply for the French worker living in the UK who wishes to enter France with their non-EU family members.
3. You must be traveling together with (or joining) your EU/EEA family member
4. You must have your passport and your partner must have their EU member state ID card or passport
5. You must carry proof of the family relationship (e.g. an original marriage certificate, birth certificate, or adoption certificate, as well as an official translation if the original is in a non-European language)
6. Border guards may, in some cases, not be aware of all aspects of your right to free movement and of their legal obligations.  You may need to politely provide them with references to the law or their procedures and rules (such as this blog entry) and should very politely request their managers and supervising officers if there is any difficulty.
7. Employees of airlines and passport checking firms are less likely to be aware of your legal rights and may resist letting somebody without a visa on board because they fear fines from the government of your destination for letting somebody on board without the proper travel clearance.  Be polite and patient but firm with them.
8. You should print out, organize and travel with each of the documents referenced in this article, as well as other supporting material.   Read it, understand it, and travel with it.  You can share the documents with border guards and their supervisors if there is any misunderstanding.
9. You have a right to any refusal in writing, along with reasons for the refusal.  Make sure they clearly state that the EU citizen was present, and the marriage certificate was produced, but that entry was refused.
10. Entering without a visa will likely take more time at the border than you are used to.  Take some food and water, and do not have anything else planned for a few hours after your arrival.
11. Be calm, relaxed and happy in dealing with border guards.   Quite a few of them well understand the laws on free movement within the European Community, and will deal with you quickly and politely.

Directive 2004/38/EC has the following to say:

Directive 2004/38/EC
Chapter II — Right of exit and entry
Article 5 — Right of entry
4. Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence.

Each member state has had to transpose Directive 2004/38/EC into their own legislation and must include Article 5 in the transposition.

The European Union comments about this in their document TABLE OF CORRESPONDENCE BETWEEN DIRECTIVE 2004/38/EC AND CURRENT EC LEGISLATION ON FREE MOVEMENT AND RESIDENCE OF UNION CITIZENS WITHIN THE EU (quote starts page 6):

Article 5(4) [of Directive 2004/38/EC] works as a safeguard for persons entitled to free movement when they are unable to show the required documents when crossing a border. This provision is based on the judgment of the [ECJ] in case C-459/99 [ruling of 25 July 2002 in MRAX v Belgian State] according to which on a proper construction of Article 3 of Directives 68/360 and 73/148 and Regulation 2317/95, read in conjunction with the principle of proportionality, a Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties.

How does this work in practice in the UK?

The UK gives the following guidance to its border guards in Border Force Operations Manual –  EEA Nationals & their Dependents.  Note that the following quoted section is about family members of EEA citizens who do not have a required UK issued EEA family permit (the UKBA name for a visa for family members of an EU citizen), or a Residence Card, or even possibly have no passport:

5.5 Procedures when no EEA family permit or residence card is held

5.5.1 Admission of family members who are unable to produce a valid passport, family permit or residence card

Border Force officers will need to assess whether or not a person qualifies for admission under the EEA Regulations in the above situations. Ports should take particular note of the guidance on those who seek admission under the extended family member provisions as dependents relatives and as family members of an EEA national with whom they have a “durable relationship” (unmarried partner); the relevant criteria in Part 8 of the Rules (excluding entry clearance) should be used to make a decision on whether or not to admit under EEA Regulations. Unlike immediate family members the EEA Regulations allow for an “extensive examination of the personal circumstances” of extended family members.

5.5.2 Seeking admission at port

Applicants at port should be treated as persons seeking admission unless reference is made to applying for a residence card. Admission will fall into one of the following:

• Produces satisfactory evidence on arrival — The person should be admitted for 6 months on a Code 1A [Ed: Code 1A has recently been replaced by a special ‘EEA Dependant’ ink stamp as described in a home office FOI response]. Complete landing card.
• Is unable to produce satisfactory evidence on arrival — The person should be given “every reasonable opportunity” to prove by other means that he is the family member of an EEA national; a person should not automatically be refused admission as a result of not being able to produce adequate evidence. As a guide within a week of arriving at port should be adequate; ports can consider refusing admission at this point, unless the situation suggests more time is needed.
• Submits an application for admission post arrival

In the response to a 2014 FOI request, Home office provided information about the ‘EEA Dependant’ ink stamp they issue in such circumstances:

If a non-EEA national arrives at the UK border seeking admission under the EEA Regulations as the family member of an EEA national, or of a British citizen under the Surinder Singh judgment, and does not have a valid EEA family permit (or other document specified in regulation 11(2)), the Border Force officer will give the passenger the opportunity to prove by other means that they qualify for entry (as required by Article 5(4) of the Directive and regulation 11(4) of the EEA Regulations).

If the officer is satisfied that the passenger is eligible for admission, the passenger’s valid  passport will be endorsed at the border using an ‘EEA Dependant’ ink stamp for a period of six months. This stamp has replaced the ‘code 1A’ stamp previously used for this  purpose.

A letter from Damien Green (Minister of Immigration in Britian) makes this clear:

Under Regulation 11, the family member of an EEA national must be admitted to the UK if he or she produces on arrival a valid passport and an EEA family permit, a UK issued residence card or permanent residence card, or if he or she is able to prove the family relationship by other means. [emphasis added]

It is therefore not compulsory for family members of EEA nationals to obtain an EEA family permit before travelling to the UK, and UK Border Agency officers will consider any evidence presented by passengers arriving at the UK border that they are entitled to be admitted as a family member of an EEA national in accordance with regulation 11 (4) [Ed: This is the paragraph which implements MRAX]. Nevertheless, it is strongly recommended that family members obtain an EEA Family Permit, which are issued free of charge, before travelling in order to facilitate their entry to the UK.

How does this work in practice in Schengen member states?

The European Commission gives Schengen member states (which now includes most member states) the following clear directions in the “Practical Handbook for Border Guards (Schengen Handbook) [EN]” (also available in other EU languages):

3.1 Persons enjoying the Community right of free movement

3.1.1 Persons enjoying the Community right of free movement are authorised to cross the border of a Member State on the basis of the following documents, as a general rule:

• EU, EEA, CH citizens: identity card or passport;
• members of the family of EU and EEA citizens who are nationals of a third country: passport. They may also be required to have an entry visa, if they are nationals of a third country subject to the visa obligation, unless they are in possession of a valid residence permit or card, issued by a Member State (or by EEA countries);
• members of the family of CH citizen who are nationals of a third country: passport. They may also be required to have an entry visa, if they are nationals of a third country subject to the visa obligation.

3.1.2 However, if a person enjoying the Community right of free movement does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned must, before turning him/her back, give such person every reasonable opportunity to obtain the necessary documents or have them brought to him/her within a reasonable period of time or corroborate or prove by other means that he/she is covered by the right of free movement.

3.1.3 As a consequence, checks on persons enjoying the Community right of free movement should be limited, as a general rule, to the verification of their identity and nationality/family ties (so-called “minimum check”, see above point 1.4). No questions concerning the purpose of travel, travel plans, employment certificate, pay slips, bank statements, accommodation, means of subsistence or other personal data should therefore be asked to them.

[…]

Legal basis – Case law:

• Directive 38/2004/EC (Articles 4, 5 and 27)
• Schengen Borders Code (Article 7)
• Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, 21 June 1999
• Judgement of the ECJ of 25 July 2002, Case C-459/99, MRAX vs. Belgium
• Judgement of the ECJ of 17 February 2005, Case C-215/03, Salah Oulane vs. Minister voor Vreemdelingenzaken en Integratie
• Judgement of the ECJ of 31 January 2006, Case C-503/03, Commission vs. Spain.

Practical experience of people who have done this

• Stefan-TR writes clearly about his wife entering the UK without the EEA Family Permit and the (positive!) result
• A Polish national and her husband flew to the UK and entered easily
• West African wife of UK national enters UK with husband by ferry at Calais.  UK national had been living and working in Spain and entry was made on the basis of the ECJ Singh case
• I have entered into Ireland at Dublin airport with my wife.  She did not have the required visa.  After some back and forth, and a wait of maybe 45 minutes (or at least it seemed that long), she was allowed entry.  Some of the guards clearly did not know the rules, but the one we were dealing with was very polite and eventually everything was sorted out.  We had a nice time exploring Dublin and then went home.
• Scott, a visa requiring non-EU citizen, writes about entering Spain together with his EU partner without the required visa after the Spanish embassy took  too long to process their application
• The non-EU spouse of a British woman, normally resident in Sweden, who entered the UK in Calais.   They had the unfortunate experience of a rude UKBA Immigration Officer, but it still only took 10 minutes!
• The Albanian wife of a British citizen entered the UK from Calais by ferry without an EEA Family Permit: “[The Immigration officer] was happy that I had everything so organised and although it was unusual he did everything according to what the laws were that I had read and stamped my wife’s passport with the Code 1A. It did not take very long at all.”
• Russian wife enters UK with EEA husband by ship: “Much less hassle to get an EEA family permit, but i take a certain pride to being called as “stubborn as a Norwegian“
• The Moldovian wife of a Romanian citizen did not have an easy time entering Ireland.  She was detained and held.  In the end the government was fined 7000 euro, but that is small compensation

Important warnings to keep in mind!

1. These are suggestions that may ease your entry without a visa.  They should not be taken as legal advice and come with no guarantee.   If you want a kind-of guarantee, get a visa!
2. If you need to fly to your destination, the airline may turn you away before you ever have a chance to talk with a border guard.  They are often instructed to refuse to carry people who do not have the right visa, and do not know about these European legal rules.
3. ECJ case law applies to traditional EU/EEA member states.  They likely do NOT apply to entry into Switzerland (which is part of Schengen but not directly subject to ECJ case law), although the Schengen Practical Handbook for Border Guards does not make an exception for Switzerland