Visa free travel for Residence Card holder Case refer to ECJ

Your wife has been documented by the French authorities with a 5 year residence card, which confirms her status as the family member of an EU citizen resident in France, in accordance with Articles 2, 7 and 10 Directive 2004/38.

Your wife is theoretically entitled to rely on the visa exemption contained under Article 5 paragraph 2 Directive 2004/38; this has recently been upheld by the Court of Justice in the Case of McCarthy Case C 202/13.

However, note that the UK does not accept this as being the correct interpretation of the law, and keeps insisting upon the fact that your wife must process and obtain a UK entry visa, which she can obtain by reference to the Surinder Singh precedent:

1. As the spouse of a UK citizen wishing to enter the UK, your wife does not, in general, benefit from the EU rules on free movement (joined cases 35 & 36/82 Morson and Jhanjan).

2. However, as you have exercised your EU right of free movement to reside in France, your wife may come under the scope of EU right of free movement upon returning to the UK with you or join you in the UK (case C-370/90 Surinder Singh). This means that your wife may enter the UK with you subject to the more generous EU rights, rather than the strict UK immigration rules.

3. The EU rules require that your wife enters the UK subject to a visa (which is available free of charge under an accelerated procedure), known in the UK as an EEA Family Permit; but is exempt from that requirement PROVIDED you have a residence card as a family member of an EU/EEA national. Accordingly, given that your wife holds a French residence card, she is in principle entitled to rely on the visa exemption contained under Article 5 paragraph 2 Directive 2004/38.

4. The UK has, to date, interpreted this exception narrowly (in breach of EU law), as meaning a residence card issued by the UK or, as from this year residence cards issued by Germany and Estonia; however, your wife's French residence card may not be recognized, given that the UK does not accept that the visa exemption applies to the family member of a UK citizen.

5. The recent decision of the Court of Justice of the EU in case C-202/13 McCarthy refutes the UK interpretation expounded above, given that the Court of Justice held that a person in your wife's situation is not obliged to obtain a separate visa and is entitled to rely on her French residence card. Note however, that EU law is not correctly applied by the UK authorities at the moment.

Thus, whilst the case of McCarthy C 202/13 is binding on the UK authorities and your wife is theoretically able to rely on her French residence permit to enter the UK, this is not something that the UK authorities are currently willing to accept;

Currently, your wife is therefore obliged to process a UK visa, irrespective of what the Court of Justice held in the McCarthy case (case C 202/13).

The UK Home Office has not yet issued its response to the Mc Carthy decision, and until it does, we would advise that you and your spouse comply with the UK rules in force at the time in order to avoid problems in relying on your EU law rights. If you have any further issues, please feel free to contact us again.

dalebutt wrote:I would disregard Solvit reply , and the UK immigration rules. I would not be breaking the law, it is the UK who would be breaking the law if they refused me entry and in such situation, a claim will be definitely inevitable. If you aren't ready for a bit of scuffle, better apply for the FP, but for someone like me who likes fighting the establishment at every chance, there is no way I would do anything contrary to the findings in Mc Carthy

dalebutt wrote:............ but for someone like me who likes fighting the establishment at every chance, ............

tebee wrote:
Will try going without an FP - we are going by ferry, and it would be 400km drive each way and an overnight stay to apply for the FP

dalebutt wrote:I would disregard Solvit reply , and the UK immigration rules. I would not be breaking the law, it is the UK who would be breaking the law if they refused me entry and in such situation, a claim will be definitely inevitable. If you aren't ready for a bit of scuffle, better apply for the FP, but for someone like me who likes fighting the establishment at every chance, there is no way I would do anything contrary to the findings in Mc Carthy

Rolfus wrote:Sorry, Obie, which bit have I got wrong? My feeling is that the accompanying and joining provision is completely unworkable. If a RC card holder arrives at immigration and says that the EEA family member will be joining later, either the officer accepts that at face value, or the RC holder has to demonstrate first who the EEA national is, and secondly that they will be joining. How can that be done in practice?

Visa Exemptions

Holders of a "Family Member" Residence Card marked “(Permanent) Residence Card of a Family Member of a Union Citizen" issued by Germany to family members of an EEA national or national of Switzerland, if traveling with or traveling to join the EEA national or national of Switzerland.

Obie wrote:I would not expect to see the changes on the system, as these changes only come into effect on 06 April 2015.

Residence Card marked "(Permanent) Residence Card of a Family
Member of a Union Citizen

Obie wrote:

Rolfus wrote:Sorry, Obie, which bit have I got wrong? My feeling is that the accompanying and joining provision is completely unworkable. If a RC card holder arrives at immigration and says that the EEA family member will be joining later, either the officer accepts that at face value, or the RC holder has to demonstrate first who the EEA national is, and secondly that they will be joining. How can that be done in practice?

Yes you have edited the area where i said you are wrong.

Regulation 9(4) provides that a British Citizen who meets the requirement of Regulation 9, should be treated as holding a valid passport issued by an EEA state.

So family member of British Citizens will benefit also.

Obie wrote:I see. Perhaps it is an attempt to impose more obstacle as more people are likely to have Residence Card than Permanent Residence Card . Furthermore , article 5 (2) refers to article 10 residence Card.

“a qualifying EEA State residence card” means—
(a) a valid document called a “Residence card of a family member of a Union Citizen” issued under Article 10 of Council Directive 2004/38/EC (as applied, where relevant, by the EEA Agreement) by an EEA State listed in sub-paragraph (b) to a non-EEA family member of an EEA national as proof of the holder’s right of residence in that State;

(b)any EEA State, except Switzerland;

“a qualifying EEA State residence card” means—

(a) a document called a “Residence card of a family member of a Union Citizen” issued under Article 10 of Council Directive 2004/38/EC (as applied, where relevant, by the EEA Agreement) by an EEA State listed in sub-paragraph (b) to a non-EEA family member of an EEA national as proof of the holder’s right of residence in that State;

(b)Germany and Estonia;