ILR residence card = 2004/38 Art 10 card?

[panyatna]

Is a UK ILR residence permit classed as a “Residence card of a family member of a Union citizen” under Art 10 of the Free Movement Directive 2004/38/EC? What about if it is accompanied by a marriage certificate to a UK citizen? Thanks.

[zimba]

Is a UK ILR residence permit classed as a “Residence card of a family member of a Union citizen” under Art 10 of the Free Movement Directive 2004/38/EC? What about if it is accompanied by a marriage certificate to a UK citizen? Thanks.

No. ILR is a specific status granted under UK immigration rules and has no legal standing outside the UK. So ILR cannot be used for travel to the EU

[panyatna]

Is a UK ILR residence permit classed as a “Residence card of a family member of a Union citizen” under Art 10 of the Free Movement Directive 2004/38/EC? What about if it is accompanied by a marriage certificate to a UK citizen? Thanks.

No. ILR is a specific status granted under UK immigration rules and has no legal standing outside the UK. So ILR cannot be used for travel to the EU

Thanks for your reply. It states on https://europa.eu/youreurope/citizens/t ... dex_en.htm that:

“However, if they arrive at the border with their passport but without an entry visa, the border authorities should give them the opportunity to prove by other means that they are family members of a mobile EU citizen. They can do so by providing proof of their identity and family ties with an EU citizen (for example a marriage or birth certificate) and, proof that they are joining or accompanying the EU citizen (for example, proof that the EU citizen is already living in the country where entry is sought). If they manage to prove it, they should be issued with an entry visa on the spot.”

This seems to be based on article 5(4) of the directive:
“Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence.”

We cannot apply for an Irish visa as the embassy is closed due to a Covid-19. Assuming we managed to get on a flight to Ireland, the non-EU spouse (travelling with EU spouse) simply has to present passport and marriage certificate at Irish border control, and an entry visa is automatically granted? How long would that visa be for?

[zimba]

An airline will refuse boarding a passenger on a flight to Ireland if they are a non-visa national without a valid visa or residence permit. In a rare situation where you end up there, it is up to Irish authorities to grant entry. This is not recommended at all.

[secret.simon]

Is there any reason that you want to travel right now?

The rights that you have mentioned above kick in when you can get to an immigration officer.

However, if your spouse requires a visa to travel to either Ireland or the Schengen Zone, airlines and/or ferry companies will likely not allow them to board in the first place.

[panyatna]

Hi again, after the ECJ decision in http://curia.europa.eu/juris/document/d ... id=8210597 the UK permanent residence card is now equivalent to the 2004/38 Art 10 card. So my wife with UK PR card should now be able to enter Ireland without a visa.

As I understand it, she should also no longer have entry or exit stamps placed in her passport under 2004/38 Art 5(3).

I wonder however how this affects the Schengen 90/180 rule. This does not apply to holders of the 2004/38 Art 10 card when travelling with EU spouse, does it? In which case, the ECJ decision could disapply the 90/180 rule from the holder of a UK PR card when travelling with EU spouse?

Sorry to the last poster, I missed your message.

[secret.simon]

Hi again, after the ECJ decision in http://curia.europa.eu/juris/document/d ... id=8210597 the UK permanent residence card is now equivalent to the 2004/38 Art 10 card. So my wife with UK PR card should now be able to enter Ireland without a visa.

You've misunderstood the judgement. The ECJ has ruled that a person holding a Permanent Residence Card issued under Article 20 of EU Directive 2004/38/EC has the same rights as a person holding a Residence Card issued under Article 10 of the same Directive.

An ILR BRP is NOT a Permanent Residence Card for the purposes of EU law. A Permanent Residence Card is only issued for family members of non-UK EEA citizens living in the UK or for UK citizens who resided with their family members in another EEA member-state for more than three months and returned with them to the UK.

As I understand it, she should also no longer have entry or exit stamps placed in her passport under 2004/38 Art 5(3).

If she has ILR issued under the UK Immigration Rules, while she is within the UK, she is subject to the same rules as those determined by her passport. She will need to be stamped in when entering the UK.

[panyatna]

Hi again, after the ECJ decision in http://curia.europa.eu/juris/document/d ... id=8210597 the UK permanent residence card is now equivalent to the 2004/38 Art 10 card. So my wife with UK PR card should now be able to enter Ireland without a visa.

You've misunderstood the judgement. The ECJ has ruled that a person holding a Permanent Residence Card issued under Article 20 of EU Directive 2004/38/EC has the same rights as a person holding a Residence Card issued under Article 10 of the same Directive.

An ILR BRP is NOT a Permanent Residence Card for the purposes of EU law. A Permanent Residence Card is only issued for family members of non-UK EEA citizens living in the UK or for UK citizens who resided with their family members in another EEA member-state for more than three months and returned with them to the UK.

As I understand it, she should also no longer have entry or exit stamps placed in her passport under 2004/38 Art 5(3).

If she has ILR issued under the UK Immigration Rules, while she is within the UK, she is subject to the same rules as those determined by her passport. She will need to be stamped in when entering the UK.

Looks like I have indeed misunderstood it. Got over excited. Back to the drawing board. Thanks for the clarification. Is the only difference between an Art 10 and an Art 20 residence permit that the former is temporary and the latter is permanent?

[CR001]

Looks like I have indeed misunderstood it. Got over excited. Back to the drawing board. Thanks for the clarification. Is the only difference between an Art 10 and an Art 20 residence permit that the former is temporary and the latter is permanent?

Correct. Although still not applicable you anyway.

https://www.gov.uk/government/publicati ... dence-card