Court of Appeal Finds Ryanair Liable for Carrying Non-EU Citizen without Correct Documentation

Background

Under the Asylum Act 1999 a penalty can be imposed on an airline where it has allowed a passenger to board a flight to the UK without appropriate proof of the right of entry.

Facts

A, a non-EU citizen flew from Germany to the UK on a Ryanair flight with his son, an Austrian national, for what was intended to be a one-day tourist trip.

Prior to the flight, A had presented himself at Ryanair's visa check desk and produced a card issued by Austrian authorities bearing the words “family member – permanent residency” and was allowed to board the flight to the UK.

Upon arrival, the UK Border Force refused A leave to enter the UK, on the basis that A had “failed to produce a visa of the required kind”.  This was said to be required in the absence of either a valid residence card, within the meaning of Art 5(2) of Directive 2004/38 (the "Directive"), or some other means of verifying his entitlement to free movement rights, pursuant to Art 5(4) of the Directive.  A argued that he had been told by the German authorities that he did not need a visa if he had an EU spouse or child.

The UK Border Force ordered Ryanair to take A back to Germany and the Home Office charged Ryanair with a £2,000 penalty under section 40 of the 1999 Act.

Decision

On appeal the Court of Appeal held that, for A to qualify for the Art 5(2) visa exemption, A would need a valid residence card issued under Art 10 of the Directive bearing the words “Residence card of a family member of a Union citizen”. A card without such language was likely to provide powerful evidence of the holder's right of free movement and possibly enable him to prove his entitlement by "other means", pursuant to Art 5(4). However this would not, of itself, satisfy Art 5(2). In this case, A did not have sufficient evidence to demonstrate a right to freedom of movement by other means.

Further, possession of a permanent residence card (for family members who are not nationals of an EU Member State issued under Art 20 of the Directive) was said to potentially afford strong evidence of a right of free movement. However, A had no such evidence to show the card was issued under Art 20. 

As a result the Home Secretary was entitled to impose the £2,000 penalty on Ryanair.       

Comment

Liability was held to arise when A failed to produce appropriate documentation to the immigration officer, not the carrier. The obligation to provide an individual "every reasonable opportunity" to "prove by other means" that they had a right of free movement, pursuant to Art 5(4), did not necessarily mean that the UK authorities were obliged in every case to tell an individual without appropriate documentation that they could try to demonstrate that right in some other way. It was highly unlikely that A, as a one-day tourist to the UK, had brought documentation establishing that he had a son who was an Austrian national, that he was dependent on that son, and that the son had exercised his right of free movement. In addition, A had been provided sufficient opportunity to prove he was covered by the right of free movement, but had made no specific reference to his son.

Airlines need effective systems to avoid penalties for failure to check that passengers have sufficient and adequate documentation to travel to their intended destination. On the other hand it is bad business to prevent passengers from taking full advantage of free movement of rights within the EU. The case illustrates how it can prove difficult to make the correct judgment in the case of passengers from non-EU countries who are family members of Member State nationals. This may of course become more complex in the UK following Brexit.