A passenger, who was a national of Bosnia and Herzegovina and resided in Austria with his son, an Austrian national, flew from Germany to the United Kingdom on a flight with the claimant carrier. At the carrier’s visa check desk in Germany the passenger was told, on production of his Austrian residence card entitled “Family member—permanent residency”, that he did not require a visa. Article 5(2) of Council Directive 2004/38/EC provided that a family member of an EU citizen was not required to have an entry visa on entering a member state if he was in possession of the “valid residence card referred to in article 10”, which provided that the right of residence would be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen”. On arrival in the United Kingdom the UK Border Force refused the passenger leave to enter because he did not have a visa. The Secretary of State issued the carrier with a charge notice for liability of £2,000 under section 40 of the Immigration and Asylum Act 1999 on the basis that the passenger had arrived in the United Kingdom on the carrier’s aircraft and failed to produce a visa. The judge dismissed the carrier’s appeal. The carrier appealed, contending that: (i) a document did not have to bear the words “Residence card of a family member of a Union citizen” to be a “valid residence card” for the purposes of articles 5(2) and 10 of the Directive; (ii) liability to pay a charge under section 40(1) of the 1999 Act did not arise simply upon a failure by the passenger to produce the proper documents to the carrier; and (iii) if liability did arise in such circumstances, section 40(1) was contrary to EU free movement rights.
On the appeal—
Held, permission to appeal granted but appeal dismissed. (1) On a true construction of Council Directive 2004/38/EC, a residence card issued under article 10 had to bear the words “Residence card of a family member of a Union citizen” (in whatever language) and, hence, a “valid residence card” within the meaning of article 5(2) of the Directive also had to do so. A card purportedly issued without the requisite words might potentially provide powerful evidence of the holder’s right of free movement and so, perhaps, enable him to prove his entitlement “by other means” under article 5(4). However a card that did not carry the specified wording would not of itself satisfy article 5(2). Furthermore, possession of a card issued under article 20 of the Directive (granting permanent residence card to a family member who was not a national of a member state) might potentially afford strong evidence of a right of free movement. But a bare article 20 card did not count as a “valid residence card” for the purposes of article 5(2). In the present case the passenger had a card issued pursuant to Austrian law which did not carry the requisite words to qualify under article 5(2) (paras 35, 38, 39–40, 59, 60).
(2) Liability under section 40 of the Immigration and Asylum Act 1999 arose when a passenger failed to produce appropriate documentation to the immigration officer. The Secretary of State had to be entitled to impose a charge under section 40 wherever a passenger neither produced the documents required by article 5(1) and (2) of the Directive nor, despite having been given an opportunity to do so, proved by other means that he was covered by the right of free movement. Even supposing that the Secretary of State bore the burden of proof, she could be under no obligation to demonstrate, not merely that a passenger did not provide proof of a right of free movement, but that he in fact lacked such a right. The terms of article 5 were not apt to impose such a requirement and someone wishing to rely on an EU right was generally required to establish that he had it. Further, the duty to give someone “every reasonable opportunity” to “prove by other means” that he had a right of free movement (in accordance with article 5(4) of the Directive) did not mean that the UK Border Force had always to tell a person lacking appropriate documentation that he could seek to establish a right of free movement in some other way. Perhaps there might be circumstances in which providing “every reasonable opportunity” to prove a right of free movement necessarily involved drawing the relevant individual’s attention to the fact that he had that opportunity, but there was no general rule to that effect (paras 41, 47–48, 59, 60).
(3) Section 40 of the 1999 Act was to be read consistently with article 5 and was not applicable where a passenger showed that he was entitled to enter the United Kingdom without a visa either by dint of a “valid residence card” within article 5(2) of Directive 2004/38/EC or “by other means” under article 5(4). Accordingly, since the passenger had neither produced the documents required by article 5(2) nor proved by other means that he was covered by the right of free movement, the Secretary of State had been entitled to impose the £2,000 charge on the claimant carrier (paras 51, 55, 58, 59, 60).
Kassie Smith QC (instructed by Stephenson Harwood llp) for the claimant carrier.
Simon Colton QC (instructed by Treasury Solicitor) for the Secretary of State.