Practical implication of Judgment in Case C-754/18 to family members of EU citizens according to EU 2004/38/EC

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I have read the decision a couple of times, although not very closely, and I do not think that it eliminates the possibility for border officers to seek to establish that the bearer of an Article 20 card (or an Article 10 card, for that matter) is traveling with or to join the EU family member.

That condition is more fundamental: it is established in Article 3(1), which provides that the directive applies to family members who "accompany or join" the Union citizen. If the family member is not accompanying or joining the Union citizen, the directive does not apply.

Unfortunately, that question seems not to have arisen in this case. Certainly, the court did not consider it. The most significant finding in this case is that an Article 20 card must be treated as equivalent to the purpose of an Article 10 card for the purpose of enabling the visa exemption. The directive is oddly ambiguous on that question: Article 5(2) establishes the visa exemption but mentions Article 10 only, which I presume was the result of a careless revision or some other drafting error.

Let us for the sake of argument assume a French person has moved to Ireland with a Senegalese spouse, who has obtained a residence card. There is certainly an argument to be made that the Senegalese spouse, having joined the French spouse in Ireland, is a beneficiary of the directive and should therefore be allowed to use that residence card to travel to any EU country without a visa. If this principle were firmly established, there would be no basis for questioning whether a third-country family member is joining the EU family member. However, I am not aware of that argument being made anywhere, so that practice will probably continue.

The UK certainly takes the opposite position, requiring the EU spouse to be in the UK or traveling with the third-country family member in order to qualify for a visa exemption.

Since the court did not consider this question directly, the ruling is not likely to have any impact on it.

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