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Ryanair - carriers’ liability - incorrect visa

11 June 2018

An interesting tale recently emerged from the Court of Appeal.

Mr Mevludin Alibegovic, a national of Bosnia and Herzegovina, flew by Ryanair from Germany to the UK. He was with his son, Haris, who is an Austrian national. Well-informed readers will know that Austria is a member of the EEA but that Bosnia and Herzegovina is not. But they may also know that if a non-EEA family member of an EEA national holds an appropriate European immigration document (issued by any EEA government) they may be able to use it to enter the UK.

Mr Alibegovic was holding an EEA family member permanent residence card, issued by the Austrian authorities on the basis of the family relationship with his son, that allows him to live permanently in Austria.

But the UK Border Force at Stansted Airport were not impressed with Mr Alibegovic’s permanent residence card. They told him that it did not enable him to enter the UK and they refused him leave to enter. Not only that, but he was removed back to Germany the following day.

Now, he had only apparently intended to visit the UK for one day, and it was suggested by the court that he had in fact returned to Germany on the Ryanair flight that he had originally intended to return on and which he had already paid for. So he achieved his objective of staying in the UK for one day - but in rather different circumstances from those he had envisaged.

Apart from Mr Alibegovic’s somewhat spoiled trip you might think there was no other harm done, but the matter did not end there. The Home Office decided to fine Ryanair £2,000 for this misdemeanour - ie allowing somebody to travel to the UK without correct documents. This is something that the Home Office is entitled to do by certain provisions of the Immigration Act 1999.

But Ryanair did not think it was fair and they appealed to the County Court. But the County Court judge thought that it was fair. Ryanair, with remarkable tenacity, then appealed to the Court of Appeal.

The Court of Appeal analysed the most relevant European law: ie the "free movement Directive". Directives are written by the EU authorities, and the national governments of the member states must follow them. As the court explained, if a non-EEA family member holds a residence card issued under Article 10 of that Directive then they may be entitled to come in through the UK border.

But Article 10 is very specific. It says that a qualifying residence card must have the following words on it: "Residence card of a family member of a Union citizen". (There are of course many national languages in the EEA, but these words should be clearly rendered in the relevant language.) So if Mr Alibegovic had had such a residence card he would have been entitled to enter the UK with it.

But here things became difficult for Ryanair. The words on Mr Alibegovic’s document were different from this. They were (translated from German) "family member - permanent residency". This of course is not the same. Unlike a residence card - which entitles the holder to time-limited residence - his residence card entitled him to permanent residence (and, incidentally, was issued under a different Article of the Directive, not Article 10.)

So, you might think, his permanent residence card was better than a residence card. At any rate, Mr Alibegovic said (and evidently accurately) that the Ryanair check-in staff at the airport in Germany had told him that his permanent residence card would allow him to enter the UK. And, as Ryanair’s barrister said to the Court of Appeal, it would be absurd if a permanent residence card had less value than a residence card and if the holder of such a permanent residence card had more difficulty getting through the border than somebody who held a mere residence card.

It seems an attractive argument, but the court did not agree. One interesting observation that the court made was that: "… the circumstances of the holder of [a permanent residence card] may change, and the right of free movement be lost, over the lengthy period for which such a card can last". The court thus felt that there might be good reasons why the Directive said what it said and why a residence card was more effective for these purposes than a permanent residence card.

So the Home Office won and Ryanair lost, and the fine was upheld.

The upshot of this case is that now we know for certain: the Directive means exactly what it says. If you are relying on a document issued by another EEA state only an EEA residence card, not a permanent residence card, is likely to allow the holder to enter the UK (assuming all other requirements are met). So if you hold such a permanent residence document and you want to come to the UK you should take good legal advice.




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