On a Ryanair-operated flight from London (United Kingdom) the police at Liszt Ferenc Airport in Budapest (Hungary) screened the passengers and found that a passenger of Ukrainian nationality who held (1) a non-biometric passport, (2) a residence card for a family member of a citizen of the Union issued by the United Kingdom subsequently invalidated and (3) a valid permanent residence card, also issued by the United Kingdom, did not have a visa.

Considering that this passenger did not hold all the travel documents required to enter Hungarian territory, the police did not authorise him to do so and asked Ryanair to reroute him to London. In addition, it considered that Ryanair had not taken the measures incumbent on it as a carrier to ensure that that passenger was in possession of the required travel documents and, for that reason, decided to impose a fine of EUR 3000 on that company.

Ryanair challenged the legality of this decision arguing amongst others that the passenger in question was authorised to enter Hungarian territory without a visa since he had a permanent residence card issued by the UK. On the other hand, the Hungarian National Police Headquarters took the view that only the possession of a residence card for a family member of a citizen of the Union exempts nationals of non-member States from the requirement to be in possession of a visa in order to enter the territory of the Member States. Considering both views, the competent Court of Hungary sent a relevant request to the CJEU for a preliminary ruling as to how the provisions of Articles 5, 10 and 20 of 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”), should be interpreted.

With its ruling the CJEU decided that possessing a permanent residence card exempts a person who is not a national of a Member State, but who is a family member of a Union citizen and who holds such a card, from the obligation to obtain a visa in order to enter the territory of the Member States.

Justifying its ruling above, the CJEU stated that both a residence card and a permanent residence card are documents which, if held by family members of a Union citizen who are not nationals of a Member State, certify that they have a right of residence, and therefore of entry, in the territory of the Member States.

In addition, the CJEU ruled that the possession of a permanent residence card exempts the family member of a Union citizen who holds it, from the obligation to obtain a visa where that card was issued by a Member State which is not part of the Schengen area and that possession of the residence card constitutes sufficient proof that the holder of that card is a family member of a Union citizen, so that the person concerned is entitled, without further verification or justification being necessary, to enter the territory of a Member State exempt from the requirement to obtain a visa under Article 5(2) of the Directive.

In relation to the above, the CJEU also stated also that “Member States may issue a permanent residence card only to persons who have the status of family member of a citizen of the Union. It follows that the issue of a permanent residence card by a Member State implies that that State has necessarily verified, in advance, that the person concerned has that status. Therefore, there is no need for an additional verification of that status.

According to Article 2 of the Directive family members include: spouses, as well as the partner with whom the Union citizen has contracted a registered partnership on the basis of the legislation of a Member State, provided that the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State, the direct descendants who are under the age of 21 or who are dependants including those of the spouse or partner as stated above and the dependant direct relatives in the ascending line including those of the spouse or partner as stated above.

This means that “family members” will include the husband, wife or partners of the EU national, his or her children or his or her spouse’s or partner’s children provided that such children are under the age of 21 or who are dependants or any dependant parent of the EU national or of his / her spouse or partner. So, for example, if a third country national (i.e. Russian citizen) has obtained Cypriot nationality, then the above persons, being part of his family, who in turn are residents of Cyprus and hold either a permanent residence card or a residence card for a family member of a citizen of the EU, may travel to all EU countries without the need to produce a visa.

With the above decision the CJEU clarified that the type of residence card held by the “family member” of the EU national is irrelevant, in that either possessing a permanent residence card or a residence card for a family member of a citizen of the EU will in both circumstances give such family member (as defined in Article 2 of the Directive), the right to be exempt from any visa requirements for entry into the territory of another Member State.

This publication has been prepared as a general guide and for information purposes only. It is not a substitution for professional advice. One must not rely on it without receiving independent advice based on the particular facts of his/her own case.  No responsibility can be accepted by the authors or the publishers for any loss occasioned by acting or refraining from acting on the basis of this publication.

Counsel – Litigation Department

Andrianna.Solomonides@kinanis.com

Associate Lawyer – Litigation Department

Litigation@kinanis.com

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