Free Travel to UK with Residency Card

I JUST RECEIVED THIS E-MAIL FROM SOLVIT (EUROPEAN ADVICE).
AS I SENT THIS REGARDING BEING MARRIED TO NON-EU WITH FAMILY MEMBER OF EU CITIZEN RESIDENCY CARD FROM GERMANY AND THAT I AM BRITISH CITIZEN.

Therefore does you think I should just risk it and travel because I have work contract and all centre of life documents.

---------------------------------------------------

Thank you Mr ....... for contacting Your Europe Advice.

When you travel with your wife to an EU country, her family member residence card should exempt her from the need to obtain a visa.

Under Article 5(2) of Directive 2004/38, a residence card issued to the family member of an EU citizen exempts them from the need to have an entry visa when travelling with their EU relative to another EU country.

This was confirmed last year by the EU Court of Justice in case C-202/13 McCarthy. In this case, the Court ruled that Member States are, in principle, required to recognise a residence card issued under Article 10 of Directive 2004/38, for the purposes of entry into their territory without a visa. This exemption applies to the family members of an EU citizen who travel together to an EU country other than the EU citizen s country of nationality (Article 3).

In addition, we consider that this exemption would also apply to the situation of EU citizens returning home to the UK after exercising free movement rights in another EU country in line with C-202/13 McCarthy and Case C-456/12 O & B.

Firstly, in C-202/13 McCarthy, the EU Court of Justice held at paras 41-42:
41 … there is nothing at all in Article 5 indicating that the right of entry of family members of the Union citizen who are not nationals of a Member State is limited to Member States other than the Member State of origin of the Union citizen.
42 Accordingly, it must be held that, pursuant to Article 5 of Directive 2004/38, a person who is a family member of a Union citizen and is in a situation such as that of Ms McCarthy Rodriguez is not subject to the requirement to obtain a visa or an equivalent requirement in order to be able to enter the territory of that Union citizen s Member State of origin.

Secondly, in Case C-456 O & B, the Court also held that when an EU citizen returns home after exercising free movement rights in another EU country, Directive 2004/38 will apply by analogy. The Court indicated that the only conditions needed for a the family members of an EU citizen to be able to claim the benefit of Directive 2004/38 when returning home are as follows:
(1) genuine residence of an EU citizen and their family members in the Member State from which they have come, which means meeting the conditions of Article 7 of the Directive; and
(2) during this residence the EU citizen created or strengthened his family life.

As a result, we consider that the visa exemption in Article 5(2) of Directive 2004/38 applies to the situation of non-EU family members returning to the UK with their British relative after exercising free movement rights in the UK.

However, as a practical matter, you will also be aware that, at present, the UK authorities also require to show that you worked and have transferred the centre of your life to another EU country before returning to the UK, under regulation 9 of the Immigration (EEA) Regulations 2006. While, the EU Court of Justice s judgment in Case C-456/12 O & B casts doubt upon whether the UK s transfer of the centre of life test is lawful, regulation 9 has not yet been amended to reflect this development.

While the UK authorities are under a duty to give effect to this judgment, we understand that the UK authorities have taken the view that the transfer of the centre of life test is compatible with Case C-456/12. The European Commission is reported not to share this view and is expected to raise the issue with the UK authorities. This issue will therefore take some time before being resolved.

It follows that, at present, UK Border Force officials are still operating on the basis of regulation 9 of the Immigration (EEA) Regulations 2006 and will require you to demonstrate that you worked in another EU country before returning home and that you had transferred the centre of your life to that EU country. Given the relative complexity of making a determination on this point, Border Force officials are likely to refrain from making such a decision and instead to refuse entry to non-EU family members of British citizens returning home who seek to enter the UK using only a residence card issued under Article 10 of the Directive.

A refusal would lead to the family member being refused entry to the UK and sent back to the country they are travelling from. The person would then need to remain outside the UK while making an appeal, which can take around six months for a determination by the First Tier Tribunal and can involve significant costs.

In addition, we understand that the changes made to the Immigration (EEA) Regulations 2006 have not yet been communicated to airlines and other transport companies. This is also likely to lead to a possible denial of boarding by those airlines which are not yet aware of the changes.

To minimise the risk of being refused entry to the UK, we therefore recommend that the non-EU family members of British citizens returning home should apply for an EEA Family Permit.

We hope this answers your query.

We remain at your disposal, should you require further information.

Hi , does the British citizen has a residence cards in Germany ?If yes, how long is it valid ?

According to Solvit , British citizen will need to continue apply for the EEA family permit.

Well, if the UK decide to take that stance with returning UK citizens, then they would still be contravening the free movement Directive by not allowing all Article 10 residence cards for visa-free entry. If UK citizens wish to return to settle after exercising Treaty rights abroad, their non-EU family members are going to have to apply for a UK residence card eventually and so their eligibility for a right of residence would be tested then. Entry into the UK with an EEA residence card doesn't automatically guarantee a right of UK residence, so I don't know what the UK authorities have to worry about.

Exactly my interpretation, right of entry is not subject to Reg 9, Reg 9 deals with residency rights, it's just not arguable, it will soon fall to pieces, of that there can be no doubt.

Manutd19 wrote:Hi , does the British citizen has a residence cards in Germany ?If yes, how long is it valid ?

According to Solvit , British citizen will need to continue apply for the EEA family permit.

Yes My wife has German Residency card which is 5 years.
But the surrinder singh states returning home i.e. back to UK, but in our case it is just visiting for couple of weeks.
and they do say that by law we are allowed. The thing is we are getting the YES & NO, but nothing solid so still i doubt.