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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
His Honour Judge Wulwik
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE KING
LORD JUSTICE NEWEY
MR JUSTICE MACDONALD
|| RYANAIR LIMITED
||- and -
||SECRETARY OF STATE FOR THE HOME DEPARTMENT
Miss Kassie Smith QC (instructed by Stephenson Harwood LLP) for the Appellant
Mr Simon Colton QC (instructed by the Government Legal Department) for the Respondent
Hearing date: 20 March 2018
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Lord Justice Newey:
- This case involves a challenge by the appellant, Ryanair Limited ("Ryanair"), to a charge imposed (or purportedly imposed) on it by the Secretary of State for the Home Department on the basis that one of the airline's passengers, a Mr Mevludin Alibegovic, had arrived in the United Kingdom without appropriate documentation. His Honour Judge Wulwik, sitting in the County Court at Central London, dismissed an appeal against the charge. Ryanair now, however, seeks to appeal against Judge Wulwik's decision.
- On 30 January 2016, Mr Alibegovic flew from Memmingen Airport in Germany to London Stansted Airport on a Ryanair flight with his son Haris, who is an Austrian national. Mr Alibegovic, who is himself a citizen of Bosnia and Herzegovina and was then aged 42, had duly presented himself at Ryanair's visa check desk at Memmingen Airport, where he had produced a card issued by the Austrian authorities bearing the words "DAUERAUFENTHALT-FAMILIENANGEHÖRIGER", which can be translated as "family member – permanent residency". The groundhandling agent evidently concluded that Mr Alibegovic did not require a visa to travel to the United Kingdom and so stamped his boarding card "VISA Check OK". When, however, Mr Alibegovic arrived at Stansted Airport, he was stopped by the UK Border Force and refused leave to enter the United Kingdom. A UK Border Force report timed at 12.15 pm stated that Mr Alibegovic had "failed to produce a visa of the required kind", adding that a copy of "the document presented by the passenger" (i.e. the Austrian residence card) was attached. Between 1.20 pm and 1.35 pm, Mr Alibegovic was interviewed. The "Record of Interview" prepared by the UK Border Force records that Mr Alibegovic explained that he lived in Austria and intended to stay in the United Kingdom for one day. In response to a question about why he had not obtained a visa, he said:
"I was told by a German official that if I have an EU spouse or child then I did not need a visa."
Asked whether he had any compelling and compassionate information to give regarding his visit to the United Kingdom, Mr Alibegovic replied that he was in the country "as a tourist". The "Record of Interview" goes on to state that the interviewer told Mr Alibegovic that he would be refused leave to enter because he did not have a visa and that Mr Alibegovic "explained that the official said it was alright to travel". Thereafter, the UK Border Force ordered Ryanair to take Mr Alibegovic back to Germany and he in fact returned to Memmingen Airport the following morning (on, I think, the Ryanair flight on which he had always been booked).
- On 1 February 2016, the Home Office issued a "Notification of Potential Liability to a Charge" warning Ryanair that it might be liable to pay £2,000 under section 40 of the Immigration and Asylum Act 1999 ("the 1999 Act") following Mr Alibegovic's arrival in the United Kingdom. On 16 March, the Home Office issued a Charge Notice confirming the charge.
- Ryanair appealed against the charge pursuant to section 40B of the 1999 Act and the matter came before Judge Wulwik on 29 November 2016. On 6 January 2017, Judge Wulwik delivered a judgment dismissing the appeal, but Ryanair has applied for permission to appeal to this Court. On 24 May 2017, Patten LJ adjourned the application to a full Court, with the appeal to follow subject to the grant of permission.
The legislative framework
- Article 21(1) of the Treaty on the Functioning of the European Union ("the TFEU") provides for every citizen of the Union to have "the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect". A provision in almost identical terms had previously been found in the Treaty establishing the European Community ("the TEC").
- Directive 2004/38/EC ("the Directive") lays down, among other things, "the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members" (to quote from article 1(a)). The Directive "aims to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the member states that is conferred directly on Union citizens by article 21(1) [of the TFEU] and to strengthen that right" and its provisions "cannot be interpreted restrictively, and must not in any event be deprived of their effectiveness" (see Case C-202/13 R (McCarthy) v Secretary of State for the Home Department  QB 651, at paragraphs 31 and 32 of the judgment).
- The recitals to the Directive include these:
"(5) The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality….
(7) The formalities connected with the free movement of Union citizens within the territory of Member States should be clearly defined, without prejudice to the provisions applicable to national border controls.
(8) With a view to facilitating the free movement of family members who are not nationals of a Member State, those who have already obtained a residence card should be exempted from the requirement to obtain an entry visa within the meaning of Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement or, where appropriate, of the applicable national legislation…."
- Article 3 of the Directive, headed "Beneficiaries", states that it is to apply to "all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them". Article 2(2) defines "family member" as:
"(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if 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;
(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b)".
- Article 5 of the Directive, headed "Right of entry", is of central importance in the present case. This provides:
"1. Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport.
No entry visa or equivalent formality may be imposed on Union citizens.
2. 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.
Member States shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.
3. The host Member State shall not place an entry or exit stamp in the passport of family members who are not nationals of a Member State provided that they present the residence card provided for in Article 10.
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…."
- Article 5 of the Directive is immediately followed by chapter III, which is headed "Right of residence" and comprises articles 6 to 15. Article 10, dealing with "Issue of residence cards", is in these terms:
"1. The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called 'Residence card of a family member of a Union citizen' no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.
2. For the residence card to be issued, Member States shall require presentation of the following documents:
(a) a valid passport;
(b) a document attesting to the existence of a family relationship or of a registered partnership;
(c) the registration certificate or, in the absence of a registration system, any other proof of residence in the host Member State of the Union citizen whom they are accompanying or joining;
(d) in cases falling under points (c) and (d) of Article 2(2), documentary evidence that the conditions laid down therein are met;
(e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictly require the personal care of the family member by the Union citizen;
(f) in cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen."
- Chapter IV of the Directive, which is concerned with "Right of permanent residence", is made up of articles 16 to 21. Article 16(1) explains that "Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there", and article 16(2) provides for that to apply also to "family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years". As its heading indicates, article 20 provides for the issue of a "Permanent residence card for family members who are not nationals of a Member State". The article reads:
"1. Member States shall issue family members who are not nationals of a Member State entitled to permanent residence with a permanent residence card within six months of the submission of the application. The permanent residence card shall be renewable automatically every ten years.
2. The application for a permanent residence card shall be submitted before the residence card expires. Failure to comply with the requirement to apply for a permanent residence card may render the person concerned liable to proportionate and non-discriminatory sanctions.
3. Interruption in residence not exceeding two consecutive years shall not affect the validity of the permanent residence card."
- It is also relevant to note article 25(1) of the Directive, which is to be found in chapter V, "Provisions common to the right of residence and the right of permanent residence". Article 25(1) states:
"Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof."
- Articles 2 and 3 mean that the Directive does not apply to every Union citizen or every family member of such a citizen who is not a national of a Member State. In the McCarthy case, the Court of Justice of the European Union ("the CJEU") explained (at paragraph 36 of the judgment):
"the court has held that not all family members of a Union citizen who are not nationals of a member state derive rights of entry into and residence in a member state from Directive 2004/38, but only those who are family members, within the meaning of point 2 of article 2 of that Directive, of a Union citizen who has exercised his right of freedom of movement by becoming established in a member state other than the member state of which he is a national: Metock's case  QB 318, para 73; Dereci v Bundesministerium für Inneres (Case C-256/11)  ECR I-11315;  All ER (EC) 373, para 56; Iida v Stadt Ulm (Case C-40/11)  Fam 121, para 51; and O v Minister voor Immigratie  QB 1163, para 39."
- On the other hand, a family member may be able to benefit from the Directive where a Union citizen either returns to the Member State of which he is a national after working elsewhere in the European Union or provides services in another Member State while continuing to live in his own. Thus, in Case C-291/05 Minister voor Vreemdelingenzaken en Integratie v Eind  All ER (EC) 371 the CJEU held (at paragraph 45 of the judgment):
"when a worker returns to the member state of which he is a national, after being gainfully employed in another member state, a third country national who is a member of his family has a right under art 10(1)(a) of Regulation 1612/68 [i.e. a predecessor of the Directive], which applies by analogy, to reside in the member state of which the worker is a national, even where that worker does not carry on any effective and genuine economic activities. The fact that a third country national who is a member of a Community worker's family did not, before residing in the member state where the worker was employed, have a right under national law to reside in the member state of which the worker is a national has no bearing on the determination of that national's right to reside in the latter state."
Again, in Case C-60/00 Carpenter v Secretary of State for the Home Department  QB 416, where a United Kingdom national availed himself of the right to provide services guaranteed by article 49 of the TEC by selling advertising space to advertisers established in other Member States, the CJEU held (in paragraph 46 of the judgment) that:
"article 49 EC, read in the light of the fundamental right to respect for family life, is to be interpreted as precluding, in circumstances such as those in the main proceedings, a refusal, by the member state of origin of a provider of services established in that member state who provides services to recipients established in other member states, of the right to reside in its territory to that provider's spouse, who is a national of a third country".
- The fact, therefore, that a Union citizen is residing in the Member State of which he is a national will not necessarily preclude a family member from invoking the Directive. It would seem to follow that there are circumstances in which a family member of a Union citizen can properly be issued a residence card pursuant to the Directive by the Member State of which the citizen is a national. For the most part, however, such cards can be expected to be issued by Member States other than those of the Union citizens.
- The Directive has been transposed into domestic law by the Immigration (European Economic Area) Regulations 2006. Neither side, however, has suggested that the Regulations add anything of significance in the context of the present case.
- The charge which Ryanair is disputing was imposed, as already mentioned, on the strength of section 40 of the 1999 Act. So far as material, that provides:
"(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.
(2) The Secretary of State may charge the owner of the ship or aircraft, in respect of the individual, the sum of £2,000."
- As for when an individual requires leave to enter the United Kingdom, Miss Kassie Smith QC, who appeared for Ryanair, referred us to section 7(1) of the Immigration Act 1988, which is in these terms:
"A person shall not under the [Immigration Act 1988] require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable EU right or of any provision made under section 2(2) of the European Communities Act 1972."
- Carrier sanctions regimes such as section 40 of the 1999 Act provides for have become common in Europe. In fact, as the Divisional Court noted in R v Secretary of State for the Home Department ex p Hoverspeed  INLR 591 (at 602), Member States who are parties to the Schengen Convention are required to have such legislation. Council Directive 2001/51/EC, which has since built on the Schengen "acquis", requires Member States to ensure that such penalties are "dissuasive, effective and proportionate".
The scope of the appeal
- This case has a somewhat tangled procedural history. When Ryanair launched its appeal to the County Court in June 2016, it advanced essentially these two grounds of appeal:
"The passenger presented himself as a family member accompanying an EU citizen and therefore as a person who did not require leave to enter and to whom section 40 did not apply, the passenger held an authentic Austrian immigration status document which appeared to confirm this, there was no way for Ryanair to establish whether the passenger was or was not a person who required leave to enter, there was no sufficient guidance from the Secretary of State to carriers at the time of the decision and therefore the Secretary of State should have exercised her discretion not to impose the charge on Ryanair"
"Further or in the alternative, section 40 of the 1999 Act is an unlawful interference with EU law rights of free movement and the Secretary of State was therefore acting unlawfully in imposing the charge on Ryanair."
- On 12 August 2016, directions were given for Ryanair to file and serve a witness statement within 14 days of the date of service of the order and for the Secretary of State then to have 14 days to file and serve a witness statement in reply. Thereafter, Ryanair put in a witness statement dated 30 August from Mr Federico Pastor, the deputy head of its department of immigration affairs and authority liaison, and the Secretary of State put in a witness statement dated 12 September from Ms Rebecca Murphy, a policy advisor in the free movement team in the Home Office.
- In a skeleton argument dated 21 November 2016, Ryanair's then counsel said that there were "three key issues" to be decided:
"(i) Whether [Ryanair] was liable to a section 40 charge;
(ii) If [Ryanair] was liable to a section 40 charge, whether it was appropriate for the charge to be imposed;
(iii) Whether section 40 is compatible with EU free movement law or should be disapplied."
Ryanair's counsel went on to identify a "preliminary issue" as to "the nature and validity of an Article 10 residence card".
- Mr Simon Colton QC, who was appearing for the Secretary of State (as he also did before us), responded in a skeleton argument dated 23 November 2016. While commenting on, among other things, the requirements of an article 10 residence card and the impact of article 5(4) of the Directive, he argued that it was "essential to keep in mind the Grounds of Appeal lodged" and that Ryanair had "sought to … expand the scope of this appeal". Mr Colton concluded:
"It is respectfully submitted that Ryanair should not be permitted to expand its appeal in this manner. No permission has been sought to do so, and Ryanair's conduct of this appeal is disproportionate to the modest amount at stake."
- It is clear from the transcript of the hearing that Judge Wulwik was very much alive to this contention. Almost at the start, he noted where the grounds of appeal were to be found and that they had not been amended. Later on, the Judge observed that grounds of appeal "are there for a reason" and are "the rail tracks upon which the appeal proceeds"; that "liability is not expressly raised in terms" (which Ryanair's counsel accepted); that, if the intention was to argue as a ground of appeal matters which it was said had become apparent only in the course of the proceedings, "the proper course is to apply to amend them", which "has not been done"; and that "liability is not an issue in the grounds of appeal". In response to that last remark, Ryanair's counsel said:
"I understand the point, but we've given good notice to the other side that we were raising this issue. At the time that the grounds were drafted, we couldn't have raised it. It's true that we have not sought permission specifically to amend them. I've taken the line that it's probably a bit late at this point in the hearing to be applying for such permission."
- When he came to give judgment, the Judge quoted Ryanair's pleaded grounds of appeal and commented that, aside from the question whether section 40 of the 1999 Act "is an unlawful interference with EU law rights of free movement", they focused on "the Secretary of State's discretion to impose the charge on Ryanair rather than liability". He subsequently addressed the grounds of appeal in turn. He also, however, considered, and reached conclusions on, matters such as what a residence card issued pursuant to article 10 of the Directive should contain and the significance of article 5(4).
- In the context of the appeal to this Court, Ryanair has advanced the following grounds of appeal:
i) The Judge "erred in law by holding that liability to pay the charge arises under section 40(1) of the [1999 Act] simply upon a failure by the passenger to produce the proper documents to the carrier";
ii) If the Judge was right so to hold, then "section 40(1) is contrary to EU free movement rights contained inter alia in [the Directive], and the Judge erred in law by concluding to the contrary"; and
iii) In any event, the Judge erred in law by holding that:
a) "only a document bearing the words 'residence card of a family member of a Union citizen' is a valid Article 10 residence card for the purposes of Articles 5 and 10 of the Directive"; and
b) "only an Article 20 residence card which contains the wording referred to in Article 10(1) of the Directive could exempt family members who are not nationals of Member States from visa requirements as set out in Article 5(2) of the Directive".
- Mr Colton objected that, as developed in Miss Smith's skeleton argument for this appeal, these grounds of appeal go beyond the scope of the appeal to the County Court in certain respects. The County Court grounds of appeal, he said, focused exclusively on discretion and whether rights of free movement had been infringed. Ryanair did not dispute that the conditions of liability under section 40 of the 1999 Act were satisfied and, more specifically, it did not (so Mr Colton argued) form part of Ryanair's grounds of appeal (which it had not attempted to amend) that Mr Alibegovic was denied an opportunity to "prove by other means that [he was] covered by the right of free movement and residence" in accordance with article 5(4) of the Directive or that he had a card issued under either article 10 or article 20 of the Directive.
- In my view, a distinction should be drawn between issues of pure law and matters on which it can reasonably be supposed that the Secretary of State might have wished to adduce more evidence. It seems to me to be just, and not unfair to the Secretary of State, to allow Ryanair to pursue the points of law it has raised even where it might be said that the County Court grounds of appeal did not encompass them. I do not, therefore, consider that we should decline to deal with (say) whether a residence card must bear the words "Residence card of a family member of a union citizen" to satisfy article 5(2) of the Directive. The position may well, though, be different if a contention that was not included in the County Court grounds of appeal raises a factual issue. I return to this below.
- Subject to that caveat, I shall consider Ryanair's grounds of appeal to this Court in turn. I find it convenient, however, to start with the last of them, that set out in paragraph 26(iii) above.
Ground of appeal (iii): Article 10 and 20 residence cards
- It is common ground that, where a passenger has a "valid residence card" within the meaning of article 5(2) of the Directive, he can enter the United Kingdom without a visa. If, therefore, the card that Mr Alibegovic presented to the UK Border Force on his arrival at Stansted Airport satisfied the requirements of article 5(2), there can be no question of Ryanair being liable to a charge under section 40 of the 1999 Act.
- Judge Wulwik did not consider the card held by Mr Alibegovic to be a "valid residence card" for the purposes of article 5(2) of the Directive. He gave several reasons for this in his judgment:
i) There was no evidence that the card was issued pursuant to article 10. As to this, the Judge said (in paragraph 30 of his judgment):
"No one suggested that the document produced by Mr Alibegovic was an Article 10 residence card. It did not bear the words referred to in Article 10 or refer to EU rights or EU citizenship in any other way. There is no evidence that when Mr Alibegovic applied for the residence card he did so under Article 10 or that when the Austrian authorities issued the card they did so under Article 10";
ii) Only a card bearing the words "Residence card of a family member of a Union citizen" can be a valid article 10 residence card, and those words were not to be found on Mr Alibegovic's card (see paragraphs 24 and 31 of the judgment); and
iii) With regard to article 20, the Judge said:
"There was no argument raised in Ryanair's grounds of appeal that Mr Alibegovic had an Article 20 residence card and certainly no argument that he had an Article 20 residence card which contained the wording referred to in Article 10(1)."
- Disputing the Judge's views, Miss Smith submitted that (a) a residence card does not need to bear the words "Residence card of a family member of a Union citizen" to satisfy article 5(2) of the Directive, (b) a residence card issued under article 20 can be a "valid residence card" for the purposes of article 5(2) and (c) it was Ryanair's case before the Judge that Mr Alibegovic's card was issued pursuant to article 20.
- With regard to the first of these contentions, Miss Smith argued that to require a residence card to carry the words "Residence card of a family member of a Union citizen" would run counter to the purposes of the Directive and, in particular, to the objective of "facilitating the free movement of family members who are not nationals of a Member State" (to quote from recital (8) to the Directive). She pointed out, moreover, that some Member States issue what are intended to be article 10 cards without including the words "Residence card of a family member of a Union citizen". In fact, as she stressed, cards issued by the United Kingdom did not include these words until quite recently.
- Mr Colton, in contrast, maintained that a card must contain the words "Residence card of a family member of a Union citizen" if it is to satisfy the requirements of article 5(2) of the Directive. Under article 5(2), he said, it is possession of a "valid residence card referred to in Article 10" that removes the need for a visa, and article 10 provides for a family member's right of residence to be evidenced by a document "called 'Residence card of a family member of a Union citizen'". That an article 10 card must bear that wording (in the appropriate language) is, Mr Colton argued, consistent with the Directive's purposes, since it allows a border agent to tell quickly and with certainty whether someone has a relevant residence card, in line with recital (7) ("formalities … should be clearly defined"). The fact that certain Member States issue cards without the prescribed words is, Mr Colton submitted, irrelevant and, in fact, is seen as a problem by the European Commission. In this connection, Mr Colton referred us to a 2008 report from the Commission to the European Parliament and the Council in which this was said:
"A serious problem is that in a number of Member States the residence card is not called 'Residence card of a family member of a Union citizen', as required by Article 10. Family members concerned may find it difficult to prove that their situation falls under the Directive, and not under the more restrictive national rules on aliens."
Mr Colton also relied on the explanatory memorandum that the Commission presented on a draft of what became the Directive in which this was said in relation to article 10:
"the residence card clearly indicates that the holder is a family member of a Union citizen, so as to make it clear that the holder has an entitlement under Community law".
This, Mr Colton suggested, confirms that the use of specific wording in article 10 was deliberate.
- I accept Mr Colton's submissions. It seems to me that an article 10 residence card must bear the words "Residence card of a family member of a Union citizen" (in whatever language) and, hence, that a "valid residence card" within the meaning of article 5(2) of the Directive must also do so. A card purportedly issued without the requisite words may 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). I agree with the Judge, however, that a card that does not carry the specified wording will not of itself satisfy article 5(2).
- The next question is whether a residence card issued under article 20 of the Directive can be a "valid residence card" for the purposes of article 5(2). Miss Smith argued that it would be absurd if the position were otherwise. It would make no sense, she said, if a family member who has obtained a right of permanent residence, and so been granted a permanent residence card under article 20, had to obtain a visa when someone with merely a short-term right of residence could claim exemption through an article 10 card. Miss Smith noted, moreover, that recital (8) to the Directive speaks simply of a "residence card" (without referring to article 10) and that the European Commission has said in a handbook for the processing of visas that visa exemption:
"must be extended … to those family members who hold a valid permanent residence card issued under Article 20 of the Directive (replacing the 5-year residence card issued under article 10 of the Directive)".
- These submissions have a good deal of appeal, but I cannot accept them. While EU legislation is to be interpreted by reference to its purpose (or "teleologically"), I cannot see how the Directive can be construed in the way Ryanair proposes. Although, as Miss Smith pointed out, recital (8) does not mention article 10, neither does it refer to article 20, and article 5(2) specifically states that "possession of the valid residence card referred to in Article 10" provides visa exemption. In a similar vein, article 5(3) speaks of presentation of "the residence card provided for in Article 10". Further, as is expressly recognised in its foreword, the Commission's handbook for the processing of visas "neither creates any legally binding obligations upon Member States nor establishes any new rights and obligations for the persons who might be concerned by it". There may, moreover, be a good reason not to accord automatic visa exemption to holders of article 20 cards. After all, the circumstances of the holder of an article 20 card may change, and the right of free movement be lost, over the lengthy period for which such a card can last.
- Once again, the position seems to me to be that possession of a card (here, one issued under article 20 of the Directive) may potentially afford strong evidence of a right of free movement. I do not think, however, that a bare article 20 card counts as a "valid residence card" for the purposes of article 5(2).
- Turning to Miss Smith's submission that it was Ryanair's case before the Judge that Mr Alibegovic's card was issued pursuant to article 20 of the Directive, she drew our attention to this passage from Ryanair's skeleton argument for the County Court hearing:
"If the Secretary of State's position is that the immigration document held by Mr Alibegovic is not a valid Article 10 or 20 residence card then the Secretary of State must prove this."
While, however, that may mean that Ryanair did not accept that Mr Alibegovic's card was not issued under article 20, it did not advance a positive case that the card was so issued and the Judge was justified in saying that Ryanair's grounds of appeal did not raise any argument that Mr Alibegovic had an article 20 residence card. In any case, there was no evidence before the Judge that the card Mr Alibegovic held was applied for or issued under article 20. Since such cards are typically issued by Member States other than those of the Union citizens (see paragraph 15 above), the fact that Mr Alibegovic's card was issued by the Member State of which his son was a national tends to confirm that the card was in fact issued pursuant to Austrian domestic law rather than article 20.
- In all the circumstances, this ground of appeal fails.
Ground of appeal (i): Liability arising on failure to produce documents
- This ground of appeal was framed on the basis that Judge Wulwik had held that liability under section 40 of the 1999 Act arose simply upon a failure by a passenger to produce the proper documents to the carrier. This was a misconception. What the Secretary of State had submitted, and the Judge accepted, was that liability arose when a passenger failed to produce appropriate documentation to the immigration officer.
- That, however, is not the end of this ground of appeal, since Miss Smith contended that that conclusion was itself erroneous. Miss Smith focused here on article 5(4) of the Directive. It is not enough, Miss Smith said, for an immigration officer to determine that a passenger lacks the documentation required under article 5(2). Article 5(4) (especially taken in conjunction with article 25(1)) means that it is incumbent on the immigration officer to give the passenger "every reasonable opportunity" "to corroborate or prove by other means that they are covered by the right of free movement and residence". Unless and until that has been done and proved fruitless, there can, on Ryanair's case, be no liability under section 40 of the 1999 Act. Here, the "perfunctory interview conducted by the Home Office (which did not raise the issue of dependency despite Mr Alibegovic having referred to an EU spouse or child) did not give him such reasonable opportunity" (to quote from Miss Smith's skeleton argument). (Dependency mattered, of course, since Mr Alibegovic could not be a "family member" within the meaning of article 2(2) of the Directive unless he was "dependent" on his son – see article 2(2)(d).)
- On the facts of the present case, there is an air of unreality about this submission. Mr Alibegovic had come to the United Kingdom for just a day, and it is unlikely in the extreme that he had brought with him materials allowing him to demonstrate not only that he had a son who was an Austrian national, but that (a) his son had exercised his right of free movement and (b) he was dependent on his son despite being only 42 years of age. Since his own right of free movement would have depended on (a) and (b) both being the case, I cannot see how he could have hoped to prove "by other means" that he was covered by the right without evidence being brought to Stansted Airport from Austria. Yet there can surely have been no prospect of that happening when Mr Alibegovic was anyway due to leave the United Kingdom the following morning.
- Mr Colton argued for a relatively narrow interpretation of article 5(4) of the Directive. He said this in his skeleton argument:
"Article 5(4) provides an exception to this rule [i.e. that laid down by article 5(1) and (2)], if it should happen that an EU citizen of family member has arrived at the border without the right paperwork. But it only applies if the person is at the border – and about to be turned back. The language of the provision is: 'the Member State concerned shall, before turning them back, give such persons every reasonable opportunity…". This is a right which might be engaged, for example, if a passenger's passport were to be stolen while they were travelling. It is not a right to travel without documents, and certainly does not require Member States to encourage travel without proper papers nor, indeed, prohibit Member States incentivising carriers not to carry inadequately documented passengers."
- Mr Colton further submitted that it was not alleged in Ryanair's grounds of appeal to the County Court that Mr Alibegovic had not been given an adequate opportunity to prove his right of free movement "by other means" in accordance with article 5(4) of the Directive, with the result that the Secretary of State had seen no need to put in evidence bearing on the point (notably from the immigration officer who interviewed Mr Alibegovic). In any event, Mr Colton said, (a) the "Record of Interview" indicates that Mr Alibegovic was given such an opportunity and (b) Ryanair (on whom, according to Mr Colton, the burden lay) made no attempt to show that Mr Alibegovic was in fact covered by the right of free movement (because his son had exercised his right of free movement and he was himself dependent on his son and so a "family member" within article 2(2)(d)).
- For her part, Miss Smith disputed that it was for Ryanair to show that Mr Alibegovic had a right of free movement. The position was rather, she said, that it was for the Secretary of State to prove that Mr Alibegovic required leave to enter the United Kingdom.
- In my view, however, there is no question of the Secretary of State having had to prove that Mr Alibegovic did not have a right of free movement. Subject to the ground of appeal considered in paragraphs 52-57 below, the Secretary of State must be entitled to impose a charge under section 40 of the 1999 Act wherever a passenger neither produces the documents required by article 5(1) and (2) of the Directive nor, despite having been given an opportunity to do so, proves by other means that he is covered by the right of free movement. Even supposing that the Secretary of State bears the burden of proof, she can 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 are not apt to impose such a requirement and, as Mr Colton pointed out, someone wishing to rely on an EU right must generally establish that he has it (see e.g. Case C-133/15 Chavez-Vilchez v Raad van bestuur van de Sociale verzekeringsbank  QB 103, at paragraphs 72-76 of the judgment).
- Further, I do not think that the duty to give someone "every reasonable opportunity" to "prove by other means" that he has a right of free movement (in accordance with article 5(4) of the Directive) means that the UK Border Force must always tell a person lacking appropriate documentation that he can seek to establish a right of free movement in some other way. Perhaps there may be circumstances in which providing "every reasonable opportunity" to prove a right of free movement necessarily involves drawing the relevant individual's attention to the fact that he has that opportunity, but there is, as I see it, no general rule to that effect.
- So far as the present case is concerned, I agree with Mr Colton that Ryanair's grounds of appeal to the County Court did not allege that Mr Alibegovic had not been given sufficient opportunity to prove "by other means" that he was covered by the right of free movement. I also agree with Mr Colton that it would not be fair to the Secretary of State to allow Ryanair to pursue the point now. It is true that Ryanair's skeleton argument for the County Court hearing asserted that there was no evidence that article 5(4) of the Directive had been complied with, but Ryanair did not attempt to amend its grounds of appeal despite the Judge stressing their importance (see paragraph 24 above) and, in any case, the Secretary of State had decided what evidence to file, and done so, at a time when no allegation of failure to satisfy article 5(4) was to be found in the grounds of appeal. It is, moreover, reasonable to suppose that the Secretary of State would have called additional evidence, in particular from the immigration officer who interviewed Mr Alibegovic, if it had been alleged in the grounds of appeal that Mr Alibegovic had not been afforded an adequate opportunity to prove "by other means" that he had a right of free movement.
- That is enough to dispose of this ground of appeal, but I would add that the available evidence tends to suggest that Mr Alibegovic was given sufficient opportunity to prove that he was covered by the right of free movement. The "Record of Interview" plainly does not provide a word-for-word account of what was said during the 15-minute period, but it can be seen from it that Mr Alibegovic was asked about why he did not have a visa and whether he had "any compelling and compassionate information" to give about his visit to the United Kingdom. Mr Alibegovic appears, however, to have made no specific reference to his son, let alone to have said anything to suggest that he was travelling with a son who was a Union citizen who had exercised his right of free movement and on whom Mr Alibegovic was himself dependent notwithstanding the fact that he was only 42 years of age.
- This ground of appeal therefore fails. Mr Alibegovic having neither produced the documents required by article 5(2) of the Directive nor proved by other means that he was covered by the right of free movement, the Secretary of State must have been entitled to impose the £2,000 charge on Ryanair unless the remaining ground of appeal, to which I shall now turn, is well-founded.
Ground of appeal (ii): Free movement rights
- Miss Smith argued that, if it were the case that a carrier incurred liability under 40 of the 1999 Act "simply upon the failure by a passenger to produce the proper documents", then the section contravened EU law relating to freedom of movement and should be disapplied.
- Mr Colton submitted that, since Mr Alibegovic (a) did not have a right of free movement and (b) was in fact able to travel to the United Kingdom, there can be no evidential basis for any argument that anyone with free movement rights has had their rights interfered with as a result of section 40 of the 1999 Act. Mr Colton also said, among other things, that there is nothing wrong with deterring passengers from travelling without documents. In this connection, he noted that Member States who are parties to the Schengen Convention are required to have carrier sanctions regimes. He referred, too, to the Hoverspeed case, where Simon Brown LJ said (at 603) that he thought it "only realistic to assume that Schengen is in essence properly to be regarded as compatible with EC law".
- In the light, however, of the parties' oral submissions, it seems to me that this ground of appeal can be disposed of shortly. Miss Smith explained that she was not contending for a right of free movement going beyond article 5 of the Directive: a passenger, she accepted, must either produce the documents specified in article 5(1) and (2) or "prove by other means that they are covered by the right of free movement" under article 5(4). For his part, Mr Colton 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.
- In my view, that is indeed the position. Section 40 of the 1999 Act empowers the Secretary of State to charge a carrier if a passenger neither produces the documents required by article 5(1) and (2) of the Directive nor, despite having been given an adequate opportunity to do so, proves by other means that he is covered by the right of free movement. If, on the other hand, the passenger does demonstrate pursuant to article 5(4) that he has a right of free movement, section 40 will not apply. In other words, section 40 is to be read consistently with article 5 of the Directive and is not applicable where a passenger shows that he is entitled to enter the United Kingdom without a visa either by dint of a "valid residence card" within article 5(2) or "by other means" under article 5(4).
- On that basis, Miss Smith would not, as I understand it, suggest that section 40 of the 1999 Act is contrary to EU law. In any event, I do not think it is.
- In the circumstances, this ground of appeal cannot assist Ryanair.
- I would grant permission to appeal, but dismiss the appeal. Judge Wulwik was, in my view, correct that the Secretary of State was entitled to impose the £2,000 charge on Ryanair.
Mr Justice MacDonald:
- I agree.
Lady Justice King:
- I also agree.
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