Visa free travel for Residence Card holder Case refer to ECJ

[n2o]

I'm wondering after this, whether Mrs McCarthy is in the UK, did she simply waltz through without a stamp in her passport arriving with only the residence card?

And, whether the Home office visa & immigration (UKVI) from this day forward will allow folks with the 'residence card' from the member state accompanied by the Brit, who are coming in from Spain or other member states (where the centre of life is outside the UK), to have unrestricted access into the UK & that these folks can simply settle, obtain a NI card, NHS etc?

response from ukvi* (source Britcrits)



Given the media following

headlines in the Guardian newspaper

"Non-EU family members do not need visa to enter UK, says European court"

http://www.theguardian.com/uk-news/2014 ... pean-court

and the BBC

http://www.bbc.co.uk/news/uk-30528189

[tebee]

Well this is the reply I got from Solvit on this

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]

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

[n2o]

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

interesting comment about ignoring everything including the UKBA/UKVI

But I suppose you're right

https://www.whatdotheyknow.com/request/ ... r.pdf.html

http://www.immigrationboards.com/eea-ro ... 69701.html

[tebee]

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

Ah ! a man after my own heart......

I must admit I'm disappointed in the Solvit response, they are saying that the UK should let us in, but have not bothered to change their laws to comply with European law and until they do tough titty!

So the UK could just drag this out indefinitely ?

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

[n2o]

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

Do let us know the outcome - then if & when you arrive if you apply for for the RC without a family permit.

The success of using the new 129 page RC application form & getting the RC is assured ... right?

And please report back on that also

[tebee]

We are only going there for a short trip - a friends marriage, visit to my home town, meet the family. I have a stall at exhibition the next week-end, then she flies back to Thailand from Manchester, so if the do stop us I can sue then for all my losses and costs.....

Next year will be for real though - this is a bit of a trail run.

[Obie]

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

But in any event, on the basis of MRAX Judgement, a family member will be be refused entry at the border, even if the UK were to reject McCarthy, you will still be able to gain entry at Calais.

Also see McCarthy and EU family Permit

[twhyonline]

Hi Guys
I have been following this forum for about 2 weeks now,and i want to say its quite impressive the things you get to learn on here.On this topic particularly i want to know if the UKBA have started accepting RC reading (Family Of an Eu Citizen) non-British issued by other eu member states for entry into Uk while travelling with spouse or if there has been any success story on this matter please share.I'm currently holding a Spanish resident card called (comunitario) 5years given to those married to Spanish Nationals/European citizens (EU law terms in Spain) as i'm a third country national ,and the resident card clearly reads (familiar ciudadano de la union) in Spanish language (Family of an eu Citizen) in English.
Please if any one could be of help as me and my wife intend visiting Ireland(dublin) and London (Uk) next month to spend 1 week in each city/country.i have tried checking information online about this, i only found that of Dublin on the embassy official website stating someone in my position is visa free to the country but on that of the uk there seems to be no information regarding this even after the ECJ Rulings over the Mccarthy Family.Thanks

[logical_1]

Good news for EU family members:
blogs.kent.ac.uk/eu-rights-clinic/2015/03/5/uk-government-to-recognise-family-member-residence-cards-from-april-2015/

[Obie]

As soon as Legislation is laid before parliament and comes into effect, i shall notify the forum accordingly.

[Obie]

EEA Regulation 2015 is going to come into Effect on the 06-04-2015

[Rolfus]

This implementation excludes family members of British nationals (including dual nationals and Surinder Singh cases). They will apparently still need an EEA FP. This arises from the definition of EEA National in paragraph 2. The fact that Mr McCarthy who won the eponymous case at the EUCJ is a dual British national...
EDIT - Sorry, paragraph 9 brings in Family Members of British nationals, but with a lot of 'centre of life' restrictions. But it completely excludes Extended Family Members. I wonder whether this will cause problems at the immigration barrier.

Unlike Ireland when they recognised that they had to accept Residence Cards, the UK is still requiring that the EEA national be accompanying or joining. Metock, Aladeselu etc have shown that the EEA family member does not have to travel with the EEA national, and can travel in advance or later. I wonder what proof the immigration officers will in practice require.

A Czech Residence Card for a Family Member of an EU citizen does not specify who that citizen is. Is that the case with other countries? A typical RC holder may have several family members (and Other Family Members), all EU citizens, who might have been the relevant family member for the issue of the RC. This opens the door to another huge bureaucratic exercise at the immigration barrier.

[Obie]

There is no basis for saying that.

Qualifying EEA State residence card does not differenciate the family member who are holders of it.

[Rolfus]

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?

[twhyonline]

At least a breath of fresh air thanks Guys.
is it correct to say that as from 6th of April non-EU family member holding a residence card which identifies them as family member of an EU Citizen issued by EU member states can be used for entry into the UK Without a Family Permit ?
Just to shed in some light:The EU family residence card issued in Spain bears the name of the (EU Citizen)in which the right of residence is given in the case of third country nationals like mine, my spouse name/national id number is written at the back of my card,I don't know how it works in other EU member states,but the law applied here is that of the EU guidance regarding Spanish nationals their family members/European Nationals their Family members (not national Law).that explains why both the EU Citizen /Their Family /Family members of Spanish National holds the same card (Regimen Comunitario)

[Obie]

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.

[G4B3R]

Thanks for the information,
Im British Citizen living Germany with my non-eu wife who has family member of EU residency card from Germany.
We want to travel to UK for holiday and i just contacted the airline in Germany (British Airways) regarding the legislation that were since January 2014 regarding UK recognising Residency cards from Germany and Estonia and they said that I would need confirmation from the British Embassy regarding this information?

I am a bit confused as I am getting different information.
Can someone please Clarify this with some official ruling or citation.

Many Thanks

[acme4242]

As is sadly common, the ones on the phones usually don't know much about where they work

Ask them to check their own database for visa requirements its called TIMATIC
If they don't know what that is, ask for someone else who does.

Check British Airways visa information online
http://www.britishairways.com/en-gb/inf ... as-and-api
this leads to an IATA link
http://www.iatatravelcentre.com/

put in your information, its tells you

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]

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

[acme4242]

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

The OP lives in Germany, their residence cards are already exempt, am I right ?

but strangely TIMATIC says

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

This is strange because of the difference between Article 10 and Article 20 cards.

2004/38/EC gives visa exemption to Article 10 cards
Article 10 card is a Residence Card
Article 20 card is a Permanent Residence Card (technically not exempt, a F up)

[Obie]

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.

[CheGuevara]

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 one question, previously one needed a family permit which states joining or accompanying the EU citizen but after the 6th of April, 2015 the family permit would not be needed whilst joining or accompanying the EU citizen. What would one need if travelling alone? (Would it be a normal visa or Eea family permit)

[G4B3R]

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.

Hello,

I just read this ( https://www.whatdotheyknow.com/request/ ... sponse.pdf )
and on page 4 (number 10) it states:
''10.It should be noted that this judgment does not affect the rights of family members of
British citizens who have exercised Treaty rights in another EEA member state under
the ‘Surinder Singh’ judgment. Such persons should continue to be considered under
regulation 9 of the EEA Regulations.''

The things is that I am dual national (British & Yemeni ) and my wife she is just Yemeni. We are living in Germany for many years to come and my wife has the German Residency card for Family member of an EU Citizen. Therefore as it was implemented for Germany since 2014 it what is stated above correct that the ruling doesn't apply to British Citizens and that we have to apply for Family EEA Visa normally? Because for the past 3 days I have just been constantly reading and it is really confusing me.

Please Help me.

[acme4242]

Text for the 2015 update available here
http://www.eearegulations.co.uk/Archive/V20150406


new 2015

“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;

old 2014

“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;

@G4B3R spouse of British Citizens with RC living in Germany have been exempt since 2014.
Check UK law and Airline visa information database TIMATIC.
The FOI says new update does not affect the rights of family members of
British citizens, this means nothing taken away.