# C_2021431EN.01001201.xml

| 25.10.2021 | EN | Official Journal of the European Union | C 431/12 |
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25.10.2021

EN

Official Journal of the European Union

C 431/12

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Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 26 August 2021 — M.D. v Országos Idegenrendészeti Főigazgatóság Budapesti és Pest Megyei Regionális Igazgatósága

(Case C-528/21)

(2021/C 431/11)

Language of the case: Hungarian

Referring court

Fővárosi Törvényszék (Budapest High Court, Hungary)

Parties to the main proceedings

Applicant: M.D.

Defendant: Országos Idegenrendészeti Főigazgatóság Budapesti és Pest Megyei Regionális Igazgatósága (Budapest and Pest Regional Directorate of the National Directorate of the Immigration Police, Hungary)

Questions referred

| 1. | Are Articles 5 and 11 of Directive 2008/115/EC (1) and Article 20 TFEU, in conjunction with Articles 7, 20, 24 and 47 of the Charter, to be interpreted as precluding a practice of a Member State which extends the application of a legislative amendment to fresh proceedings initiated by virtue of a court order made in previous proceedings, where, as a result of that legislative amendment, a third-country national who is a family member of an EU citizen is made subject to much less favourable procedural rules, such that that person loses the status of a person who may not be returned even on grounds of public policy, public safety or national security, which that person had attained on account of the duration of his residence up to that point; that person’s application for a permanent residence card is then refused on the basis of that factual situation and on grounds of national security; and that person has the residence card issued in his favour withdrawn and is subsequently made subject to an entry and residence ban without consideration of his personal and family circumstances in any of the proceedings (particularly, in this context, the fact that the person concerned also has a dependent minor child who is a Hungarian citizen), as a result of which either the family unit is broken up or the EU citizens who are family members of the third-country national, including his minor child, are required to leave the territory of the Member State? |
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1.

Are Articles 5 and 11 of Directive 2008/115/EC (1) and Article 20 TFEU, in conjunction with Articles 7, 20, 24 and 47 of the Charter, to be interpreted as precluding a practice of a Member State which extends the application of a legislative amendment to fresh proceedings initiated by virtue of a court order made in previous proceedings, where, as a result of that legislative amendment, a third-country national who is a family member of an EU citizen is made subject to much less favourable procedural rules, such that that person loses the status of a person who may not be returned even on grounds of public policy, public safety or national security, which that person had attained on account of the duration of his residence up to that point; that person’s application for a permanent residence card is then refused on the basis of that factual situation and on grounds of national security; and that person has the residence card issued in his favour withdrawn and is subsequently made subject to an entry and residence ban without consideration of his personal and family circumstances in any of the proceedings (particularly, in this context, the fact that the person concerned also has a dependent minor child who is a Hungarian citizen), as a result of which either the family unit is broken up or the EU citizens who are family members of the third-country national, including his minor child, are required to leave the territory of the Member State?

| 2. | Are Articles 5 and 11 of Directive 2008/115 and Article 20 TFEU, in conjunction with Articles 7 and 24 of the Charter, to be interpreted as precluding a practice of a Member State pursuant to which the personal and family circumstances of a third-country national are not examined before the imposition on that third-country national of an entry and residence ban, on the grounds that residence by that person, who is a family member of an EU citizen, presents a real, immediate and serious threat to the country’s national security?
  In the event of an affirmative answer to questions 1 or 2: |
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2.

Are Articles 5 and 11 of Directive 2008/115 and Article 20 TFEU, in conjunction with Articles 7 and 24 of the Charter, to be interpreted as precluding a practice of a Member State pursuant to which the personal and family circumstances of a third-country national are not examined before the imposition on that third-country national of an entry and residence ban, on the grounds that residence by that person, who is a family member of an EU citizen, presents a real, immediate and serious threat to the country’s national security?

In the event of an affirmative answer to questions 1 or 2:

| 3. | Are Article 20 TFEU and Articles 5 and 13 of Directive 2008/115, in conjunction with Articles 20 and 47 of the Charter, and recital 22 of Directive 2008/115, which states that the obligation to take into account the best interests of the child should be a primary consideration, and recital 24 of that directive, which requires that the fundamental rights and principles enshrined in the Charter must be guaranteed, to be interpreted as meaning that, where, in the event that the national court declares, on the basis of a ruling of the Court of Justice of the European Union, that the law of the Member State or the practices of the immigration authorities based on that law are contrary to EU law, that court may, when examining the legal basis of the entry and residence ban, take into account, as an acquired right of the applicant in the present case, the fact that, under the rules of the a szabad mozgás és tartózkodás jogával rendelkező személyek beutazásáról és tartózkodásáról szóló 2007. évi I. törvény (Law I of 2007 on the entry and residence of persons having the right of free movement and residence; ‘Law I of 2007’), the applicant had achieved what was necessary for the purposes of application of Article 42 of that Law, namely more than 10 years’ legal residence in Hungary, or, when reviewing the grounds for the issue of the entry and residence ban, must that court base the consideration taken of family and personal circumstances directly on Article 5 of Directive 2008/115 in the absence of provisions in that respect in the a harmadik országbeli állampolgárok beutazásáról és tartózkodásáról szóló 2007. évi II. törvény (Law II of 2007 on the entry and residence of third-country nationals; ‘Law II of 2007’)? |
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3.

Are Article 20 TFEU and Articles 5 and 13 of Directive 2008/115, in conjunction with Articles 20 and 47 of the Charter, and recital 22 of Directive 2008/115, which states that the obligation to take into account the best interests of the child should be a primary consideration, and recital 24 of that directive, which requires that the fundamental rights and principles enshrined in the Charter must be guaranteed, to be interpreted as meaning that, where, in the event that the national court declares, on the basis of a ruling of the Court of Justice of the European Union, that the law of the Member State or the practices of the immigration authorities based on that law are contrary to EU law, that court may, when examining the legal basis of the entry and residence ban, take into account, as an acquired right of the applicant in the present case, the fact that, under the rules of the a szabad mozgás és tartózkodás jogával rendelkező személyek beutazásáról és tartózkodásáról szóló 2007. évi I. törvény (Law I of 2007 on the entry and residence of persons having the right of free movement and residence; ‘Law I of 2007’), the applicant had achieved what was necessary for the purposes of application of Article 42 of that Law, namely more than 10 years’ legal residence in Hungary, or, when reviewing the grounds for the issue of the entry and residence ban, must that court base the consideration taken of family and personal circumstances directly on Article 5 of Directive 2008/115 in the absence of provisions in that respect in the a harmadik országbeli állampolgárok beutazásáról és tartózkodásáról szóló 2007. évi II. törvény (Law II of 2007 on the entry and residence of third-country nationals; ‘Law II of 2007’)?

| 4. | Is a practice of a Member State whereby, in proceedings brought by a third-country national who is a family member of an EU citizen, exercising his right of appeal, the immigration authorities do not comply with a final judgment which orders immediate judicial protection against the enforcement of the decision [of those authorities] who claim that they have already entered in the Schengen Information System (SIS II) a description relating to the entry and residence ban, as a consequence of which the third-country national who is a family member of an EU citizen is not entitled to exercise in person the right of appeal or to enter Hungary while the proceedings are in progress before a final judgment has been given in his case, compatible with EU law, in particular with the right to an effective remedy guaranteed in Article 13 of Directive 2008/115 and with the right to a fair trial enshrined in Article 47 of the Charter? |
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4.

Is a practice of a Member State whereby, in proceedings brought by a third-country national who is a family member of an EU citizen, exercising his right of appeal, the immigration authorities do not comply with a final judgment which orders immediate judicial protection against the enforcement of the decision [of those authorities] who claim that they have already entered in the Schengen Information System (SIS II) a description relating to the entry and residence ban, as a consequence of which the third-country national who is a family member of an EU citizen is not entitled to exercise in person the right of appeal or to enter Hungary while the proceedings are in progress before a final judgment has been given in his case, compatible with EU law, in particular with the right to an effective remedy guaranteed in Article 13 of Directive 2008/115 and with the right to a fair trial enshrined in Article 47 of the Charter?

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(1)  Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98).

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