M.D. (Interdiction d'entree en Hongrie) (Area of freedom, security and justice - Third-country national staying illegally on the territory of a Member State - Opinion) French Text [2022] EUECJ C-528/21_O (24 November 2022)

M.D. (Interdiction d'entree en Hongrie) (Area of freedom, security and justice - Third-country national staying illegally on the territory of a Member State - Opinion) French Text [2022] EUECJ C-528/21_O (24 November 2022)

Directive 2008/115/EC does not apply to entry bans imposed on third-country nationals not present in the Member State and not subject to a return decision; such bans are governed by national law. However, Article 20 TFEU requires Member States to examine the personal and family circumstances of the individual,...

Source-derived case information.

Citation
[2022] EUECJ C-528/21_O
Parties
Applicant: M. D.; Respondent: Országos Idegenrendészeti Főigazgatóság Budapesti és Pest Megyei Regionális Igazgatósága
Jurisdiction
European Union
Procedural Posture
Preliminary Reference / Opinion of Advocate General
Outcome
Opinion delivered; recommends partial inadmissibility of Directive 2008/115/EC and affirms obligation to consider family circumstances under Article 20 TFEU.
Legal Topics
Interdiction of Entry, Third Country Nationals, Citizenship of the Union, Family Life, Security and Public Order, Schengen Information System
European Union Law Immigration Law Human Rights Law Interdiction of Entry Third Country Nationals Citizenship of the Union Family Life Security and Public Order +1 more

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Parties

M. D.

Applicant

Országos Idegenrendészeti Főigazgatóság Budapesti és Pest Megyei Regionális Igazgatósága

Respondent

Procedural Posture

Preliminary Reference / Opinion of Advocate General

  1. 1 Applicability of Directive 2008/115/EC to entry bans imposed on third-country nationals not present in the Member State
  2. 2 Obligation to consider personal and family circumstances before imposing entry bans, especially where the individual is parent to a minor Union citizen
  3. 3 Proportionality and procedural requirements for Schengen Information System alerts

Ratio Decidendi

Directive 2008/115/EC does not apply to entry bans imposed on third-country nationals not present in the Member State and not subject to a return decision; such bans are governed by national law. However, Article 20 TFEU requires Member States to examine the personal and family circumstances of the individual, especially where the individual is parent to a minor Union citizen, before imposing entry bans, to ensure the rights of the Union citizen are not unduly affected.

Court Disposition

Opinion delivered; recommends partial inadmissibility of Directive 2008/115/EC and affirms obligation to consider family circumstances under Article 20 TFEU.

Orders

  • Directive 2008/115/EC does not apply to entry bans imposed on third-country nationals not present in the Member State and not subject to a return decision.
  • Before imposing entry bans on parents of minor Union citizens, Member States must examine personal and family circumstances and the impact on Union citizenship rights.