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Visa free travel for Residence Card holder Case refer to ECJ

Posted: Thu Dec 20, 2012 4:12 pm
by Obie
After nearly 6 years, the UK high court, has reluctantly decided to refer the case of the UK, refusing to allow holders of Residence card issued by other member state from entering the UK without EEA Family Permit, in accordance with Article 5(2) of the Citizens Directive.

It appears that the UK will in principle allow holders of Residence Card issued by Estonia and Germany to travel to the UK without the EEA family permit, although changes to the EEA regulations has not yet been made to achieve this.

This matter was long overdue indeed. Shame it took 6 years.

See Case

Posted: Thu Dec 20, 2012 6:59 pm
by Obie
I think you are missing the point here.

The UK has only recently changed its position, which in itself looks suspicious.

For 6 years the UK gave a definition of Article 5(2) in Regulation 11(2) which is at variance with the letter and the spirit of the directive, and intention of the European Legislator.

If the nature of the Residence Card issued by other memberstates was an issue, the UK should have brought it us all along, rather than giving erronous definition and construction of that provision.

The UK is entitled to verify a Residence Card produced to an immigration officer. No one is saying they cannot do that.

What they cannot do, is preventing holders of a "VALID RESIDENCE CARD" issued under article 10 from being used in place of a visa.

Posted: Fri Dec 21, 2012 8:39 am
by kyky
As Mr Facenna informed the Court, on 5th November 2012, the Secretary of State decided, in principle, to recognise EU residence cards issued by Germany and Estonia because the UK Government was satisfied that they met appropriate security standards and complied with the formal requirements of the Directive as regards, in particular, bearing the heading "Residence card of a family member of a Union Citizen" as required by Article 10 of the Directive. The change will not be brought in immediately, however, since an amendment to the regulations is needed.
It may be that Residence Cards issued in Germany recently do satisfy the imagination of the British Government, because they changed the design completely and made the RC to look like an ID, although it is not an ID. However older RC look completely different and some designs are written only in German. But they are still valid. Some RC don't even have an expiration date and will be valid forever.
I read somewhere that the EC intentionally didn't extablish a standard layout for the RC, because it is not an ID and should never become one. It is only a way to confirm before the authorities that a person can execute certain rights, but the RC itself is not a prerequisite to obtain those rights. In theory one should be able to confirm his rights under the Directive also by other means, like a Marriage certificate.

I can't see how Article 10 of the Directive is demanding for the title "Residence card of a family member of a Union Citizen". And what if this is written in Bulgarian or Greek?

Posted: Fri Dec 21, 2012 4:30 pm
by EUsmileWEallsmile
I note that the UK fails to issue residence cards bearing the heading "Residence card of a family member of a Union Citizen".

It is open to all member states including the UK to issue cards based on the secure format specified in Regulation 380/2008.

Ad-hoc query by UK to other MS

Posted: Fri Dec 21, 2012 7:08 pm
by EUsmileWEallsmile
This may be of interest and is relevant to some of the issues raised in the case.

http://www.emnnorway.no/EMN-News/Ad-Hoc ... ly-permits

Re: Ad-hoc query by UK to other MS

Posted: Fri Dec 21, 2012 10:20 pm
by ccccp
EUsmileWEallsmile wrote:This may be of interest and is relevant to some of the issues raised in the case.

http://www.emnnorway.no/EMN-News/Ad-Hoc ... ly-permits
Thank you this is very interesting and useful for those getting divorce

5. In the UK registration and application for a residence card is not mandatory. The holders of residence cards are not required to inform
our authorities if there are any changes which affect their status under the Directive, however we do advise holders of residence cards
to inform us of any changes in their circumstances in the standard letter accompanying their vignette/ISD when issued.

Posted: Sat Jan 12, 2013 5:22 pm
by neep
[color=indigo][quote]" .. The holders of residence cards are not required to inform
our authorities if there are any changes which affect their status under the Directive, however we do advise holders of residence cards
to inform us of any changes in their circumstances in the standard letter accompanying their vignette/ISD when issued."[/quote][/color]

This does not seem like a faithful report of their practice. The UKBA letter (dated 2 December 2012) accompanying my wife's residence card states:

"This Directorate should be notified immediately if your family member decides to leave the United Kingdom, or ceases to exercise a Treaty right here, or if you cease to be a family member."

Is this just 'advice'? Would the recipient of this letter understand that they are "not required" to inform the "Directorate"?

Posted: Sun Apr 14, 2013 9:25 pm
by rogerlongships
I have not been keeping track with recent changes for the last few months. I have 2 petitions one of which has been upheld, in regard to travel with Residence Permits. Im a UK citizen living in Sweden with a Russian wife. I dont understand how and why they are accepting r.p. from Germany and Estonia and no others, the Swedish r.p. is almost like a driving liscence with photo id.

We did travel by ship to UK last year without an EEA permit, but it was major hassle.

Posted: Fri May 03, 2013 1:28 am
by ukforever
rogerlongships wrote:I have not been keeping track with recent changes for the last few months. I have 2 petitions one of which has been upheld, in regard to travel with Residence Permits. Im a UK citizen living in Sweden with a Russian wife. I dont understand how and why they are accepting r.p. from Germany and Estonia and no others, the Swedish r.p. is almost like a driving liscence with photo id.

We did travel by ship to UK last year without an EEA permit, but it was major hassle.
would u explain what happened when u traveled by ferry..??how was it a major hassle?thanks.

Posted: Fri May 03, 2013 2:41 pm
by Directive/2004/38/EC
rogerlongships wrote:I have 2 petitions one of which has been upheld, in regard to travel with Residence Permits. Im a UK citizen living in Sweden with a Russian wife. I dont understand how and why they are accepting r.p. from Germany and Estonia and no others, the Swedish r.p. is almost like a driving liscence with photo id.
Can you say a little more about your petitions? Who were they to? What were they about? "Upheld" means?

Posted: Tue May 07, 2013 1:17 pm
by rogerlongships
Sorry for a delayed response.

I had submitted a petition to the European Commitee on petitions several years ago, after we failed to get an EEA Permit within a short period of time, 10 days, and was refused travel with passports, marriage certificate and residence cards for Sweden to the UK, AFTER being told by Ryan Air that having a letter from the UK Embassy in Sweden stating we will not be refused at the border with the documents just mentioned. That started a ball rolling that is still in progress. That petition was upheld and put forward, with others to the ECJ in its issue with UKBA.

When we travelled by ship, the operators wanted an email fom UKBA to ensure they would accept us on landing, as they feared being fined. It took 4 weeks of constant emails and phone calls between the operator and UKBA. At one point the operator refused us leave off Sweden, which in itself is a breach that was quickly confirmed by a Swedish Immigration Officer who just as quickly retracted his "opinion", even though i have his original email confirming an EU breach of law.
I did communicate with 2 open minded people in UKBA, who saw no issues with our travel plans, but it was the boss who had issues and did not want to give clearence. We finally got written confirmation that we could pass onto the Operator 4 days before our ship was due to leave.

On arrival, we was left waiting onboard for 7 hours, much to the disgust of the Captain, as he needed us off the ship as he was on a fast turn-around service.

My wife was surrounded by 4 officials acting in an agressive manner and asking far too many irrelevant questions, which i very quickly put a stop to.

The "boss" finally stamped my wifes passport, but we only realised half way to London that he had stamped her entry date as a month earlier, and was permitted to stay a month only......we had just arrived and technically my wife was already an overstayer.

This led to yet another petition, upheld as legitamate, and is again going forward to the ECJ against UKBA. There was apologies from UKBA after i complained about my wifes treatment and wrong dates being placed in her passport. The "boss" made a huge point about the need for an EEA Family permit next time, even though he conceeded its just a formality.

I would say there are some good people working at UKBA, but also they are having to do more duties not involved in immigration, and are severely snowed under in paper.

Also from a F.O.I search, there is no information held of any carrier being fined for landing people in our circumstances without a visa, but with valid passports and marriage certificate and residence cards. Much of the problem is convincing the operator you have a right to travel in the first place, as in our experience there is a big lack of knowledge in EU travel law.
Cheers

Posted: Tue May 07, 2013 1:43 pm
by rogerlongships
If its not entirely clear, both petitions submitted are to do with the breach by UKBA not accepting EU residence cards issued under sec:10, to be used for travel in leiu of a visa. Although we did travel successfully, it was not without the hassle mentioned above.

There has been a lot of press about Estonian RC being sold off by people who have access to them, which boggles my mind why UKBA will accept those and German over a Swedish RC. Clearly the UKBA wish to drag this out for as long as possible despite constant ECJ judgements, which appear to to very little in bringing UKBA in line with EU law. The fight is on-going.
Cheers

Posted: Fri Jun 14, 2013 8:36 pm
by Obie
The reference in the case of McCarthy has arrived at at the court.

Posted: Fri Jun 14, 2013 9:11 pm
by rogerlongships
Fingers crossed for Sean and family, and everyone else in the same position. How long does this procdure normally take?

Posted: Thu Aug 08, 2013 12:44 pm
by Dim
May I ask a question?

As both a British and Greek national, if my wife gets a residence card/stamp on passport in Greece as my spouse (she currently has a residence card/stamp on passport on her own as she has a work visa), will she be allowed to travel to the UK without needing a family permit? I live and work in the UK.

Posted: Thu Aug 08, 2013 4:50 pm
by wiggsy
Dim wrote:May I ask a question?

As both a British and Greek national, if my wife gets a residence card/stamp on passport in Greece as my spouse (she currently has a residence card/stamp on passport on her own as she has a work visa), will she be allowed to travel to the UK without needing a family permit? I live and work in the UK.
Is the RC in your wifes passport entitled "Residence card of a family member of a Union citizen"? Visa free entry is only for such RC's.

Also, have you worked/lived outside of the UK?, being dual national isnt enough... you must of excersised treaty rights... also british, only british

Posted: Thu Aug 08, 2013 4:53 pm
by rogerlongships
Under EU rules you SHOULD be able to travel WITH your wife and enter the UK,as i have done. However, should your wife be travelling alone, i dont see any chance of entry without an EEA family permit,in fact, you may be seen as a British citizen,resident in the UK and so your wife may even need to apply for a spouse visa. If you have Greek passport,then the EU EEA permit would be a go.

Re: Visa free travel for Residence Card holder Case refer to

Posted: Sun Mar 09, 2014 11:42 pm
by Obie
Well, the case for visa free travel for holder of Residence Card has finally been heard.

http://www.doughtystreet.co.uk/news/art ... ent-rights

The Advocate general, has stated that the opinion will be issued by the 20th May 2014.

It appears that a significant amount of member states and the commission, supports the position taken by Mr McCarthy in that proceedings. In fact the Commission simply adopted Mr McCarthy's view in its entirety.

Re: Visa free travel for Residence Card holder Case refer to

Posted: Mon Mar 10, 2014 8:31 am
by dalebutt
Obie = Brilliant!

Re: Visa free travel for Residence Card holder Case refer to

Posted: Mon Mar 10, 2014 12:53 pm
by chaoclive
Is this the Northern Irish McCarthy family?

Re: Visa free travel for Residence Card holder Case refer to

Posted: Tue Mar 11, 2014 4:33 pm
by el patron
chaoclive wrote:Is this the Northern Irish McCarthy family?
No, the Mrs McCarthy you refer to was married to a Jamaican national as I recall.

Re: Visa free travel for Residence Card holder Case refer to

Posted: Wed Mar 26, 2014 3:22 pm
by Obie
Non-EEA family member of EEA nationals who reside in Germany and Estonia, are reminded that they will no longer be required to apply for an EEA family permit to the UK from 07/04/2014.

It is safe to say that such family member contemplating spending Easter in the UK, need not bother applying for EEA family permit at this time, as it will be unnecessary, and might not be processed before 07/04/2014.

The Opinion of the Advocate General in regards to the general application of this provision is due on the 20/05/2014, and i suspect we will have a judgement before the end of summer or early Autumn.

Re: Visa free travel for Residence Card holder Case refer to

Posted: Thu Apr 03, 2014 10:28 pm
by Rolfus
The way the new rules for TCNs from Germany and Estonia have been implemented, the TCNs must be travelling with or joining their EEA family member.

This echoes the Communication from the Commission of 2nd July 2009, but contradicts the Commission's Report of 10th Dec 2008 and their simplified "Guide on how to get the best out of Directive 2004/38/EC". (see paragraphs 26 to 29 of McCarthy and Ors).

It is not how the Republic of Ireland has implemented 2004/38/EC. TCNs can travel to Ireland unaccompanied without a visa.

I can't find anything in 2004/38/EC that requires TCNs to be accompanied or joining their family member to benefit from visa free travel.

Does anyone know what the basis for this requirement is?

Re: Visa free travel for Residence Card holder Case refer to

Posted: Fri Apr 04, 2014 5:14 pm
by toofan
Rolfus wrote:The way the new rules for TCNs from Germany and Estonia have been implemented, the TCNs must be travelling with or joining their EEA family member.

This echoes the Communication from the Commission of 2nd July 2009, but contradicts the Commission's Report of 10th Dec 2008 and their simplified "Guide on how to get the best out of Directive 2004/38/EC". (see paragraphs 26 to 29 of McCarthy and Ors).

It is not how the Republic of Ireland has implemented 2004/38/EC. TCNs can travel to Ireland unaccompanied without a visa.

I can't find anything in 2004/38/EC that requires TCNs to be accompanied or joining their family member to benefit from visa free travel.

Does anyone know what the basis for this requirement is?

hi Rolfus do you have any link where it states that RC HOLDERS CAN TRAVEL TO Ireland without eu national . it only states no visa required for RC holders but I think non eu national should be accompanied by eu citizen this is what I read on forum

Re: Visa free travel for Residence Card holder Case refer to

Posted: Fri Apr 04, 2014 9:32 pm
by Rolfus
Look at this
http://www.inis.gov.ie/en/INIS/Pages/I% ... 20a%20visa
We checked very carefully before my partner went to Eire unaccompanied. She had no problem. The important thing is that it does not say that there is any restriction on being exempt from the visa requirement, such as having to be accompanied. From memory we got confirmation from the Irish embassy. I can't remember whether that was verbal or in writing.