On the 27th of April 2023, the Court of Justice of the European Union (CJEU) ruled in its case C528/21, MD. The case concerned a TCN, M.D., who established himself in Hungary with his mother, partner and their minor child. The latter two have a Hungarian nationality and did not exercise their right to free movement within the European Union (EU). MD’s request for a permanent residence permit was rejected as he received a prison sentence for assisting migrants in the unauthorised crossing of the border, following which he was regarded as a threat to national security. Hungary therefore terminated M.D.’s residence permit and adopted a return decision and a decision banning entry and stay without assessing MD’s personal situation. In the course of the proceedings, M.D. had left the Hungary. The referring court submitted preliminary questions to CJEU.

The CJEU first noted that Article 20 Treaty on the Function of the European Union (TFEU) must be interpreted as precluding Hungary from adopting a decision banning entry into the territory of EU in respect of a TCN who is a family member of a Union citizen, who never exercised their right to free movement, without having examined beforehand whether there is a relationship of dependency which would de facto compel that Union citizen to leave the territory of the EU. If there is such a relationship, a ban on entry and stay based on national security may only be issued after having considered all the relevant circumstances and, in particular, the best interests of the child Union citizen.

The Court furthermore ruled that the entry ban falls within the scope of Article 11 of the Return Directive (RD) even though there was no return decision adopted. It then held that Article 5 of that Directive precludes that a TCN is the subject of a decision banning entry into the territory of the EU, adopted for identical reasons as the withdrawal of residence permit, without considering their state of health, family life and the best interests of their child. National courts must disapply national legislation incompatible with Article 5 RD and where necessary apply that Article directly in the dispute.

Lastly, the CJEU ruled that the Return Directive and the EU Charter preclude Hungary’s practice whereby the administrative authorities refuse to apply a final court decision ordering the suspension of enforcement of an entry ban on the ground the SIS alert