The Mouvement contre le racisme, l’antisémitisme et la xénophobie ASBL (Movement to combat racism, anti-semitism and xenophobia; “MRAX”) applied to the Belgian Council of State for annulment of a 1997 Ministerial Circular requiring a visa for the purpose of contracting a marriage in Belgium or of reuniting a family on the basis of a marriage contracted abroad. MRAX argued that the Circular was incompatible with the Community Directives on free movement and residence. The Belgian Council of State asked the European Court of Justice, by way of a preliminary reference, whether a Member State may adopt measures to (a) send back nationals of a non-member country married to a Community citizen at the border without being in possession of a valid identity document or visa, and (b) refuse to grant such people a residence permit and issue an expulsion order against them if their status is irregular because they entered or remained in the Member State unlawfully. The Council of State also asked whether foreign nationals married to Community nationals were entitled to the procedural guarantees provided for by Community law where they are refused a residence permit, or where an expulsion order is made against them for not being in possession of a valid visa.
The Court found that the right of residence of nationals of non-member countries married to Community citizens derives directly from Community law, irrespective of whether a residence permit has been issued by a Member State.The Court held that a Member State may make the issue of a residence permit conditional upon production of the document with which the person entered its territory, and that the competent national authorities may impose penalties for failure to comply with controlling provisions, so long as the penalties are proportionate. The Court also confirmed that a Member State could create measures derogating from freedom of movement on grounds of public policy, public security or public health, but that such measures must be based exclusively on the personal conduct of the individual concerned.
The Court held that a decision refusing a residence permit, or ordering expulsion, based exclusively on a failure to comply with the legal formalities relating to the control of foreign nationals was disproportionate. The Court observed that the Community provisions did not require a visa to be valid in order for a residence permit to be issued, and that an expulsion order from a national territory on the sole ground that a visa had expired was manifestly disproportionate.
The Court held that Community law provided a minimum procedural guarantee for persons to whom freedom of movement applies and their spouses where they are refused a residence permit or their expulsion is ordered before the issue of a permit, and that if such entitlement were excluded in the absence of a valid identity document or visa, the guarantees would be rendered redundant.
