Opinion of the Advocate General — ECLI:EU:C:2022:933
Date: 2022-11-24
Language of the case: Hungarian
Subject matter: Asylum policy;Citizenship of the Union;Justice and home affairs;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Hungary

Summary C-528/21 – 1 
Case C-528/21  
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
26 August 2021 
Referring court: 
Fővárosi Törvényszék (Budapest High Court, Hungary) 
Date of the decision to refer: 
19 July 2021 
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) 
  
Subject matter of the main proceedings 
Judicial review of the lawfulness of an entry and residence ban ordered on 
grounds of national security against a third-country national who has been legally 
resident in Hungary for a long time and who is a family member of an EU citizen 
(specifically, an ascendant relative of a Hungarian citizen who is a minor). 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of Articles 5, 11 and 13 of Directive 2008/115/EC and of Article 20 
TFEU, in conjunction with Articles 7, 21, 24 and 47 of the Charter. 
Legal basis: Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING— C-528/21  
 
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Questions referred for a preliminary ruling 
1) Are Articles 5 and 11 of Directive 2008/115/EC 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: 
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 
M.D. 
 
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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? 
Provisions of European Union law relied on 
Article 20 of the Treaty on the Functioning of the European Union (TFEU) 
Articles 7, 20, 21, 24 and 47 of the Charter of Fundamental Rights of the 
European Union (‘the Charter’) 
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, in particular recitals 22 and 24 
and Articles 5, 11 and 13 
Provisions of national law relied on 
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’), Articles 33, 42 and 94 
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’), Articles 43, 44 and 45 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING— C-528/21  
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 In 2002, the applicant, a Kosovo Serb national, arrived in Hungary, where he lives 
with his mother, his partner who is a Hungarian national, and his son, a minor of 
Hungarian nationality who was born in 2016. The applicant speaks good 
Hungarian. His lifestyle, family relationships and friendships connect him to the 
country. He is the head of the family. He owns a business, a property and several 
vehicles. He has also set up a business in Slovakia. 
2 From 31 May 2003, the applicant held a residence permit which was renewed a 
number of times; he was subsequently issued with a residence card, valid until 
20 May 2021, because he has a minor child of Hungarian nationality. 
3 On 12 June 2018, the applicant applied for a permanent residence card which the 
defendant refused to grant, stating that the applicant’s right of residence had 
expired. The defendant based its decision on an opinion of the Alkotmányvédelmi 
Hivatal (Constitutional Protection Office, Hungary), according to which the 
applicant’s conduct – a previous (suspended) prison sentence for committing the 
offence of encouraging illegal immigration by offering assistance to cross the 
border without permission – presented a real, immediate and serious threat to 
national security and he should therefore leave the country. 
4 The court before which the appeal was brought annulled the decision, including 
the first-tier decision, and ordered the immigration authorities to conduct a new 
procedure, stating that those authorities could not base their decision on the 
decision of the Constitutional Protection Office which had not acted in the matter 
as a specialist authority. The court ordered that, in the context of the new 
procedure, the immigration authorities should weigh up all the circumstances of 
the case, taking account primarily of the fact that the applicant and his partner live 
in Hungary in a home with their son, who is a minor of Hungarian nationality. 
5 By the decision it gave in the new procedure, the defendant withdrew the 
applicant’s residence card. The defendant stressed that, in the light of the 
legislative changes that had taken place on 1 January 2019, the new procedure had 
been conducted under Article 94(4)(b) of Law I of 2007, which is a mandatory 
provision. The defendant also pointed out that it could not diverge from the 
content of the opinions of the specialist authority and that it had no margin of 
discretion. 
6 The Fővárosi Törvényszék (Budapest High Court, Hungary), which heard the 
applicant’s appeal, dismissed that appeal by a judgment which was confirmed by 
the Kúria (Supreme Court, Hungary), stating that, given that, in the applicant’s 
case, there were grounds of national security, the immigration authorities had no 
margin of discretion when they acted. 
7 On 24 September 2020, the applicant left Hungarian territory. The defendant 
imposed an entry and residence ban on him for a period of three years and ordered 
that a description of that ban be entered in the Schengen Information System (SIS 
M.D. 
 
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II). The defendant stated that, in accordance with Law II of 2007, residence by the 
applicant, a third-country national, presented a threat to Hungary’s national 
security, as a result of which it considered his return a proportionate restriction, 
even though he also had a valid Slovakian residence permit. 
The essential arguments of the parties in the main proceedings 
8 The applicant submits that the defendant did not comply with its obligation to 
clarify the facts, to conduct an assessment and to provide reasons when it relied 
solely on the proposal of the Constitutional Protection Office without taking 
account of Article 11 of Directive 2008/115 and Article 45(1) of Law II of 2007, 
which require consideration of personal and family circumstances. 
9 The defendant claims that the appeal should be dismissed, arguing that it adopted 
its decision on the basis of the mandatory provisions of Article 43 of Law II of 
2007, which provides that an autonomous entry and residence ban must be 
imposed on any third-country national who is resident abroad and whose entry and 
residence threaten national security, and which also stipulates that the proposals of 
bodies responsible for national security are mandatory. Furthermore, given that 
the applicant’s residence permit, which had been issued to him in the light of his 
family relationship, had already been withdrawn, the defendant also had no 
statutory obligation to weigh up the applicant’s family circumstances. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 Under Law I of 2007, in force prior to 1 January 2019, third-country nationals 
who were family members of Hungarian citizens who had not exercised their right 
of free movement were entitled to reside in Hungary under the same conditions as 
third-country nationals who were family members of citizens of the European 
Economic Area (EEA) who had exercised their right of free movement. 
11 However, the legislative amendment of 1 January 2019 provided that the 
provisions of Law II of 2007, instead of those of Law I of 2007, were to apply to 
procedures commenced and repeated after the entry into force of the amending 
Law where those procedures relate to the entry and residence of third-country 
nationals who are family members of Hungarian citizens. Accordingly, since that 
time, those family members have been subject to less favourable rules and are 
treated in the same way as third-country nationals who do not have family 
members of Hungarian nationality or the nationality of an EEA Member State. 
12 The legislative amendment also made it possible to order the return, on grounds of 
national security, public safety or public order, of third-country nationals who are 
family members of Hungarian citizens and who have resided in Hungary for a 
long time, without weighing up their family and personal circumstances and thus 
without taking into account the case-law of the Court of Justice of the European 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING— C-528/21  
 
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Union, inter alia the judgment of 11 March 2021, Etat belge (Return of the father 
of a minor) (C-112/20, EU:C:2021:197). 
13 The referring court harbours doubts regarding whether, in the case of third-
country nationals who are family members of Hungarian citizens and who have 
resided for long time in Hungary, the legislative amendment or the way in which 
it is applied are compatible with the guarantee of EU citizens’ right of freedom of 
movement and freedom of residence enshrined in Article 20 TFEU, and of the 
derived right of family members, and with Articles 7, 21, 24 and 47 of the 
Charter, in conjunction with the judgment of the Court of Justice of 8 May 2018, 
K.A. and Others (Family reunification in Belgium) (C-82/16, EU:C:2018:308). 
14 According to the referring court, the application of the amending Law to repeated 
procedures is contrary to EU law but, in the present case, as a result of the case-
law of the Kúria (Supreme Court), it is not possible to disapply national law. 
15 The referring court also asks whether account may be taken of the fact that the 
applicant had been residing legally in the country for more than 10 years in 
accordance with Article 42(1) of Law I of 2007, applicable until 1 January 2019, 
and whether Directive 2008/115 must be interpreted as meaning that, if an entry 
and residence ban has been issued autonomously, that court, for the purposes of 
examining family and personal circumstances, may, in the absence of national 
provisions, base its decision directly on Article 5 of the directive, in addition to 
disapplying national law. 
16 Regard being had to the fact that there are considerable differences in the 
domestic case-law of the national courts in relation to these matters, that is to say 
that, owing to the Member State’s legal practice, the correct application of EU law 
is not so obvious as to leave no room for reasonable doubt; the referring court thus 
considers that an interpretation of EU law is necessary for the purposes of 
adjudicating on the case, in line with the acte clair doctrine. 
17 In view of the fact that the applicant, who is currently in Austria, is unable to 
travel to Hungary due to the entry and residence ban, and regard being had to the 
best interests of his son who is a minor, the referring court requests that the 
questions referred be dealt with under the urgent procedure.