Ryanair Ltd v Secretary of State for the Home Department

A carrier sanction under section 40 of the Immigration and Asylum Act 1999 is compatible with EU free-movement rights where a passenger has neither the documents required by Directive 2004/38/EC nor proof by other means of entitlement to enter. The relevant failure is failure to produce documents to the immigration officer, not merely to the carrier. A visa exemption under article 5(2) requires a valid article 10 residence card bearing the prescribed designation; a bare article 20 permanent residence card is insufficient. Article 5(4) requires every reasonable opportunity to establish entitlement before turn-back, but does not impose a general duty to explain that opportunity. The Secretary of State need not prove that the passenger in fact lacked free-movement rights.

Ryanair challenged a £2,000 charge imposed under section 40 of the Immigration and Asylum Act 1999 after a passenger travelling from Germany to the United Kingdom was refused entry for failing to produce the required visa. He had presented an Austrian residence card describing him as a family member with permanent residence.

The County Court at Central London dismissed Ryanair’s appeal. Before the Court of Appeal, Ryanair challenged the basis of liability, the compatibility of section 40 with EU free-movement law, the effect of article 5(4) of Directive 2004/38/EC, and the validity of article 10 and article 20 residence cards. The Court also considered whether points not pleaded below could be raised on appeal.

Permission to appeal was granted, but the appeal was dismissed.

1. The Court distinguished pure points of law from new factual contentions. It was fair to consider legal arguments not fully captured by the County Court grounds where no additional evidence was required. It was unfair to allow a new factual allegation that the passenger had not been given a sufficient opportunity under article 5(4), since the Secretary of State might have adduced further evidence, particularly from the interviewing immigration officer.
2. An article 10 residence card must bear the prescribed words Residence card of a family member of a Union citizen, in the relevant language. A card lacking that designation might be evidence supporting proof by other means under article 5(4), but it does not itself satisfy article 5(2). A bare article 20 permanent residence card likewise does not constitute the valid residence card referred to in article 5(2). The text of the Directive controlled despite the teleological approach to EU legislation, and the Commission handbook was not legally binding.
3. Liability under section 40 arises from failure to produce the required documents to the immigration officer, not simply from failure to produce them to the carrier. The Secretary of State may impose the charge where the passenger neither produces the documents required by articles 5(1) and 5(2) nor, after an adequate opportunity, proves by other means that he or she is covered by free-movement rights. She need not prove that the passenger actually lacked those rights. The Court referred to [2018] QB 103 as supporting the general principle that a person relying on an EU right must establish it.
4. The duty under article 5(4) to provide every reasonable opportunity does not create a general obligation for Border Force officers to tell every inadequately documented person that proof by other means is possible. On the available evidence, the passenger’s interview appeared to provide a sufficient opportunity, although he did not establish that his son had exercised free movement rights or that he was dependent on him within article 2(2)(d).
5. Section 40 must be read consistently with article 5. It does not apply where a passenger demonstrates an entitlement to enter without a visa through a valid article 5(2) residence card or by other means under article 5(4). On the facts, the passenger had established neither route, so the Secretary of State was entitled to impose the £2,000 charge.

1. Court of Appeal (Civil Division). Granted permission to appeal and dismissed the appeal: [2018] EWCA Civ 899.
2. County Court at Central London. His Honour Judge Wulwik dismissed Ryanair’s appeal against the charge on 6 January 2017.