The Mouvement contre le racisme, l'antisémitisme et la xénophobie ASBL (Movement to combat racism, anti-semitism and xenophobia; "MRAX") applied to the Belgian Conseil d'État (Council of State) for annulment of a 1997 circular of the Ministers for the Interior and for Justice relating to obtaining a visa for the purpose of contracting a marriage in Belgium or of reuniting a family on the basis of a marriage contracted abroad.

MRAX maintains that the circular is incompatible with the Community directives on movement and residence within the Community.

The Belgian Council of State has asked the Court of Justice whether a Member State may adopt the following measures in relation to nationals of a non-member country married to a Community citizen:

-    send them back at the border when they seek to enter the Member State without being in possession of a valid identity document and, if necessary, a visa;

-    refuse to grant them a residence permit and issue an expulsion order against them if their status is irregular because:

    -    they entered the Member State unlawfully; or

    -    they entered it lawfully but have applied for issue of a residence permit after expiry of their visa.

The Council of State has also asked whether foreign nationals married to Community nationals are entitled to the procedural guarantees provided for by Community law where they are refused a residence permit or an expulsion order is made against them on the ground that they are not in possession of an identity document or a visa or their visa has expired.

In this judgment the Court rules on situations presenting a link to freedom of movement. The judgment concerns the rights regarding access to Member States' territory and grant of a residence permit enjoyed by nationals of non-member countries who are married to Community citizens making use of their freedom of movement as workers, freedom of establishment or freedom to provide services. Community legislation on freedom of movement for workers, freedom to provide services and freedom of establishment cannot be applied to the situation of persons who have never exercised those freedoms.

Exceptions to the principle of freedom of movement can be founded only on grounds of public policy, public security or public health.

- Ability to send back at the border

The Court begins by noting the importance which the Community legislature has accorded to protecting the family life of Community citizens in order to eliminate obstacles to exercise of the fundamental freedoms guaranteed by the Treaty.

Nevertheless, under Community legislation, the Member States may demand an entry visa from members of the family of a Community citizen who are not nationals of a Member State. If they do not have a visa or a valid identity document, sending them back at the border does not appear to be precluded.

The Court points out, however, that the applicable directives state that the Member States are to accord to such persons every facility for obtaining any necessary visas. This means that a visa must be issued without delay and, as far as possible, at the place of entry into national territory.

In any event, where a national of a non-member country married to a Community citizen is able to prove his identity and the conjugal ties, to send him back at the border is disproportionate and therefore prohibited, provided that he does not represent a risk to the requirements of public policy, public security or public health.

- Ability to refuse issue of a residence permit to a national of a non-member country who is married to a Community national and whose status is irregular

The Court finds that the right of residence of nationals of non-member countries married to Community citizens derives directly from rules of Community law irrespective of issue of a residence permit by a Member State. Issue of a residence permit is a measure serving to record the individual position of the person concerned with regard to Community law.

However, a Member State may make issue of a residence permit conditional upon production of the document with which the person entered its territory. The competent national authorities may impose penalties for failure to comply with provisions concerning the control of foreign nationals so long as the penalties are proportionate. Also, a Member State may take measures derogating from freedom of movement if grounds of public policy, public security or public health are involved, but they must be based exclusively on the personal conduct of the individual concerned.

On the other hand, a decision refusing a residence permit, or ordering expulsion, based exclusively on a failure to comply with the legal formalities relating to the control of foreign nationals - such as entering a Member State without a visa - is a disproportionate measure and therefore contrary to the Community rules where the person concerned is able to furnish proof of his identity and of his conjugal ties with a Community national.

With regard to applications for a residence permit after a visa has expired, the Court observes that the Community provisions do not require the visa still to be valid in order for a residence permitto be issued. Furthermore, an order of expulsion from national territory on the sole ground that the visa has expired would constitute a penalty manifestly disproportionate to the gravity of the breach of the national provisions concerning the control of foreign nationals.

- Procedural guarantees

Community law provides a minimum procedural guarantee for persons to whom freedom of movement applies and their spouses where they are refused a residence permit or their expulsion is ordered before the issue of a permit (under the guarantee, the person concerned can, at his request, have the decision considered by a competent authority before which he may submit his defence in person). The Court observes that the guarantee is complementary to the system of appeals to a court of law. The requirement for judicial review reflects a principle stemming from the constitutional traditions common to the Member States which has been enshrined in the European Convention on Human Rights.

The Court accordingly holds that a foreign national married to a Member State national is entitled to the minimum procedural guarantees laid down by the Community legislation. If that entitlement were excluded in the absence of a valid identity document or visa, the guarantees would be rendered redundant.

Unofficial document for media use only; not binding on the Court of Justice. Available in Dutch, English, French, German, Italian and Spanish. For the full text of the judgment, please consult our Internet page www.curia.eu.int  at approximately 3pm today. For further information please contact Reinier Van Winden: Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731 Pictures of the hearing are available on "Europe by Satellite" European Commission, Press and Information Service, L-2920 Luxembourg Tel: (00 352) 4301 35177; Fax: (00 352) 4301 35249, or B-1049 Brussels, Tel: (00 32) 2 2964106, Fax: (00 32) 2 2965956, or (00 32) 2 301280