In Ryanair v Secretary of State for the Home Department [2018] EWCA Civ 899 the budget airline, no stranger to litigation, challenged the imposition of a £2,000 fine on it for carrying a man from Germany to the UK who, said the Secretary of State, had failed to produce the requisite documentation under section 40 of the Immigration and Asylum Act 1999. Section 40 states:

(1) This section applies if an individual requiring leave to enter the United Kingdom arrives in the United Kingdom by ship or aircraft and, on being required to do so by an immigration officer, fails to produce—

(a) an immigration document which is in force and which satisfactorily establishes his identity and his nationality or citizenship, and

(b) if the individual requires a visa, a visa of the required kind.

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(2) The Secretary of State may charge the owner of the ship or aircraft, in respect of the individual, the sum of £2,000.

Mevludin Alibegovic, a citizen of Bosnia and Herzegovina, was travelling to the UK for one night with his son, an Austrian national. At check-in, he presented a document issued by the Austrian authorities bearing the legend “daueraufenthalt-familienangehöriger” (“permanent residence, family member”) and satisfied the person checking documentation. On arrival, immigration officers stopped him. Satisfied, they were not. They refused leave to enter and ordered Ryanair to carry Mr Alibegovic back to Germany, which it did the next day, apparently on the flight on which he was already booked.

Ryanair was subsequently given notice of a potential liability to a fine of £2,000 under section 40 and, in due course, fined. It appealed under section 40B of the 1999 Act. There was some dispute about the grounds the Court of Appeal could consider, but the case resolved itself into an argument that the requisite documentation had been presented or, in the alternative, that section 40 of the 1999 Act was an unlawful restriction on free movement rights.

When is a residence card not a residence card?

Ryanair relied on section 7(1) of the Immigration Act 1988, which provides that a person entitled to enter or remain in the exercise of EU rights does not require leave to enter or remain in the UK.

The Court of Appeal examined article 5(2) of Directive 2004/38/EC, the “free movement” directive:

Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.

The court held that to be “a residence card referred to in Article 10,” for the purposes of article 5(2), a card must state “Residence card of a family member of a Union citizen” (in the appropriate language, as Lord Justice Newey was careful to add). While other documents might be useful for the purposes of article 5(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 … corroborate or prove by other means that they are covered by the right of free movement and residence…

they would not constitute such cards.

The court further held, as a matter of construction of article 5(2), that a permanent residence card, which is issued under article 20 rather than article 10, would not serve to exempt family members from the visa requirement. Albeit, readers will be relieved to learn, that it “may potentially afford strong evidence of a right of free movement” (paragraph 38 of the judgment).

Ryanair sought to pursue the argument that Mr Alibegovic had not been given sufficient opportunity to prove “by other means” as per article 5(4) that he was covered by the right of free movement. But, having not raised the point in its original grounds, the carrier was prevented from doing so. Lord Justice Newey observed that it was unlikely in any event that a person coming on a day trip would be carrying the requisite proof with him. He did not, however, have occasion to consider that a mere phone call or email could have produced all the relevant evidence.

The judge also observed, obiter, that the question during the interview as to whether there was “any compelling and compassionate information” to justify entry suggested that “sufficient opportunity” had been provided, which appears to confuse two very different lines of enquiry.

As to the second ground, we are told that counsel for the Secretary of State “was ultimately inclined to accept that, if a passenger proves his right of free movement under article 5(4), the carrier will not be liable under section 40 of the 1999 Act” (paragraph 54). This the court held to be correct and that, as a result, Ryanair failed on the second ground of appeal.

Airlines unlikely to be flexible on free movement documents

The judgment gives rise to an unsatisfactory state of affairs. While it is held that it is technically possible to travel with a range of evidence proving exercise of free movement rights, airlines reading the judgment are likely to see accepting such proof as giving rise to an unacceptable risk of a £2,000 fine.

The finding that to be “a residence card referred to in Article 10,” for the purposes of article 5(2), a card must state “Residence card of a family member of a Union citizen” ignores that cards from a number of EU countries, for example Austria, Hungary, Lithuania, Poland, Romania, Spain, Portugal and the Netherlands, do not use this wording. Are they therefore not to be regarded as valid documents?

Moreover, the UK did not use that wording either until the Immigration (European Economic Area) Regulations 2016 (SI 2016/1052) were amended by paragraph 1 of Schedule 1 to the Immigration (European Economic Area) (Amendment) Regulations 2017 (SI 2017/1). (For lovers of detail, this substitution came into force on 31 January 2017 but did not take effect until the commencement of regulation 18(7)(a), the provision amended, on 1 February 2017.)

The finding that a permanent residence document is insufficient, while grounded in the text of article 5(2), leads to the perverse consequences highlighted by counsel for Ryanair: that a family member with permanent residence is in a worse position than a family member who has yet to achieve permanent residence. It would have been helpful for the court to have been less equivocal and state plainly that a permanent residence document would satisfy article 5(4). It is to be hoped, if not expected, that the Secretary of State’s policy documents will do so.

Should this not happen there may be scope for the European Commission to step in, working with the International Air Transport Association (IATA), which produces a code of conduct for immigration liaison officers.