European Court of Justice ruling re Family Visitors to the UK

[kieran2698]

The European Court of Justice has ruled British citizens should be able to bring non-EU family members into the UK without a travel visa.

It means the UK's borders could be open to large numbers of foreign migrants from outside the European Union, and will intensify pressure on David Cameron to tackle freedom of movement rules.

The landmark ruling centres on the case of Sean McCarthy, who has dual British and Irish citizenship, and his Colombian wife Patricia McCarthy Rodriguez.

Mrs McCarthy Rodriguez, who has two children with her husband - both with British citizenship, had to get a "family permit" every six months to visit the UK with her family.

She and her husband took their case to court under the freedom of movement rules claiming she should be able to travel without the visa because she had an EU Residence Card issued by the Spanish government.

http://news.sky.com/story/1393951/brits-can-bring-foreign-family-to-uk-ruling

Edited, to reflect Forum Rules regarding fair use of copyrighted publications.

Heading also edited to reflect the fact that nothing new has been reported, apart from the EU Ruling.

[kieran2698]

Early days, we will just have to see how this one pans out, no doubt it is going to cause a bit of a hoo-ha.

[7by7]

One very important point missed by the article in the OP.

The ruling does not, as the article and this topic's heading suggest, mean that anyone from anywhere can enter the UK without a visa provided they have a British spouse or partner.

This ruling only applies if the non EEA national is living in another EEA state with their EEA national family member.

If that EEA national family member is British, then that British family member has to be exercising an economic treaty right in the state where they are living. The McCarthy's only won because they live in Spain and Mrs McCarthy holds a Spanish residency card.

This report from the BBC gives a less hysterical account of the judgement.

The court is only confirming what was already in the regulations, regulations which the UK has been ignoring for years.

So any Brits living in Thailand thinking that they and their Thai spouse can now come to the UK without first getting a visa for them; sorry, you can't.

BTW, Kieran, fair use and copyright mean that you should provide a link to the source of the article you have posted, and only quote part of it, not the whole thing in full.

Edited December 18, 2014 by 7by7

[Donutz]

He was living in Portugal was it not? With UKVI denying rights clearly spelled out in Directive 2004/38 on freedom of movement and which the UK failed (refused) to incooperate into their national law thus far. The Directive is very clear that those who have a residence card under the directive (" family member of a citizen of the EU/EEA" ) can enter visa free. Not just family of Brits but also other EU nationals who did the SS/EU route and have such a residence card.

Not to be confused with regular residence card holders, those still need a visa. Although it should be free of charge, issued ASAP and with minimum hassle for family of EU nationals (not being Brits) traveling to the UK. My Thai wife will still need a free "EU/EEA family permit" visa as I am a Dutchy traveling to the UK while she holds a regular Dutch residence permit. Sadly the UK doesn't make/insert such a visa at the embassy, rather it's outsourced: the passport would go to the UK, be processed and returned. The visa would be free but they do charge service costs for the external party. This is not allowed either, it should be entirely free. Easier to travel to Dover-Calais and gain entry at the UK border. Or not visit the UK at all and spend the holiday money elsewhere since Cameron does not welcome non-EU family tourists apparantly.

BBC: http://www.bbc.com/news/uk-30528189

A Downing Street spokesman said Prime Minister David Cameron disagreed with the ruling.

Cameron is a tool. A previous administration agreed on EU directive 2004/38 so one must respect that. The directive isn't rocket science, it's all very clear so there is nothing to disagree with. Pathetic that administrations (in the UK, NL etc.) blaim the EU for shoving regulation down their throats while it were these member state's administrations that agreed upon all this in the past.

[makescents]

My interpretation is that this re-opens the illegally closed right of movement for UK nationals to move back to the UK with their non-EU spouses and children. The only muddled fact is that the guy is British and Irish so does the ruling affect only Irish citizens, British or both.

That being said moving to Ireland prior to the UK which is allowed with only a marriage certificate, obtain an Irish residency card and then moving to the UK looks like an option once again, as should be allowed by EU Directive 2004/38/EC.

[Donutz]

Britain's borders could be open to large numbers of non-EU nationals in the wake of a European Court of Justice ruling.

(...)

UKIP MEP and spokesman on immigration Steven Woolfe said: "This ruling extends the so-called 'right to free movement' to millions of people from anywhere in the world who don't have citizenship of any country of the EU "This is yet more proof that Britain can never take back control of its borders as long as it remains in the European Union."

The press are incompetent too. Rather then checkign the Directive or asking somebody who understands the ruling or Directive yuo should quote a politcal party (UKIP). Those statements of large numbers, millions, is simply nonsense. How hard could it be for the press to check facts?? Taking the time for a quick call or mail to an immigration lawyer or UKVI to comment on this is too difficult?

This simply means EU national who are or have excersized freedom of movement in an other EU country then their own and whi have non-EU family can enter visa free. Those would be the small number of SS/EU route people. Various cuontries such as the UK and NL counted the number of SS/EU route applications and those were far from significant. Shouldn't be too hard to dig those articles up either, certainly not when you are a reporter.

Pathetic fail on the side of the UK administration, UKIP and British press. It's the same stuff you see here in NL, incompeten press quoting political parties and members of the administration who do not exactly give a complete, factual/neutral few on migration facts. If migration, integration, naturalisation is such an important topic, why are there so few members of the press/media that have some decent knowledge?

[Morakot]

Non-EU family members don’t need visa to enter UK, says European court

• The Guardian, Thursday 18 December 2014 10.31 GMT

EU judges have ruled that the UK cannot block non-EU family members from entering the country without a travel permit in a decision that potentially opens Britain’s borders to large numbers of non-EU nationals.

The complicated case centres on Sean McCarthy, a dual British and Irish national living and working in Spain, and his wife, Patricia McCarthy Rodriguez, a Colombian citizen. They have two young children who are both British citizens.

Mrs McCarthy claimed she should be allowed to travel to the UK with her British family without having to obtain a British visa as she holds an EU residence card issued by the Spanish government.

http://www.theguardian.com/uk-news/2014/dec/18/non-eu-family-members-visa-uk-european-court

[7by7]

He was living in Portugal was it not?

Spain

My interpretation is that this re-opens the illegally closed right of movement for UK nationals to move back to the UK with their non-EU spouses and children. The only muddled fact is that the guy is British and Irish so does the ruling affect only Irish citizens, British or both.

I was unaware that free movement rights under Surinder Singh had been closed by the UK!

As I read it, the illegal part was that the UK insisted on those benefiting from the judgement had to apply for a visa, albeit a free one, when they were living in another EEA country with their British spouse and only wanted to visit the UK.

Which this judgement seems to have corrected.

In a different case, confusingly also brought by a dual British/Irish citizen named McCarthy (the same?), the court ruled in 2011 that a dual national cannot use nationality A for freedom of movement purposes for their non EEA family to country B unless they had at some time lived in country A. So in that case the plaintiffs, Mr and Mrs McCarthy, lost.

See here.

[kieran2698]

Here is the link to the original article.

http://news.sky.com/story/1393951/brits-can-bring-foreign-family-to-uk-ruling

[makescents]

My interpretation is that this re-opens the illegally closed right of movement for UK nationals to move back to the UK with their non-EU spouses and children. The only muddled fact is that the guy is British and Irish so does the ruling affect only Irish citizens, British or both.

I was unaware that free movement rights under Surinder Singh had been closed by the UK!

As I read it, the illegal part was that the UK insisted on those benefiting from the judgement had to apply for a visa, albeit a free one, when they were living in another EEA country with their British spouse and only wanted to visit the UK.

Which this judgement seems to have corrected.

In a different case, confusingly also brought by a dual British/Irish citizen named McCarthy (the same?), the court ruled in 2011 that a dual national cannot use nationality A for freedom of movement purposes for their non EEA family to country B unless they had at some time lived in country A. So in that case the plaintiffs, Mr and Mrs McCarthy, lost.

See here.

Not closed exactly. Bad choice of words. Made difficult.

Moving into another EU country that is not your own for 90 days no longer satisfies the UK border agency that you are entitled to enter with your non-EU spouse/children.

The so-called 'centre of life' test is being used to prevent people entering the UK. They want proof that your 'centre of life' moved to the country you are moving from and that you didn't move purely to gain entry into the UK. This should be thrown out, but I believe a test case hasn't been brought forward.

Thanks for clearing up the dual national thing. That would imply that this affects UK citizens then.

Edit: More info on this 'centre of life' horse manure...

https://www.whatdotheyknow.com/request/foi_request_for_definition_of_ce

https://www.freemovement.org.uk/eu-to-investigate-uk-interpretation-of-surinder-singh/

Edited December 18, 2014 by makescents

[Donutz]

He was living in Portugal was it not?

Spain

In a different case, confusingly also brought by a dual British/Irish citizen named McCarthy (the same?), the court ruled in 2011 that a dual national cannot use nationality A for freedom of movement purposes for their non EEA family to country B unless they had at some time lived in country A. So in that case the plaintiffs, Mr and Mrs McCarthy, lost.

See here.

A Spain, I was close enough.

Unless mrs. Shirley McCarthy from the 2011 devorced her Jamaican husband, had a sex and name change to Mr. Sean McCarthy and then married a Colombian, this McCarthy would be a different person then the previous McCarthy case.

2011 case: http://curia.europa.eu/juris/document/document.jsf?text=&docid=82119&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first∂=1&cid=6164

2014 case: http://curia.europa.eu/juris/document/document.jsf?text=&docid=160942&pageIndex=0&doclang=en&mode=req&dir=&occ=first∂=1&cid=225905

Edited December 18, 2014 by Donutz

[happydude303]

So if I was to move to Europe form England get a job for over 3 months , could I also marry her in Europe with not to much hassle then move straight back to my messed up country and give the finger to mrs may ...I do earn enough any way but I'd do it just to piss her off if it's possible

[Donutz]

@Happy: no, you would need to actually live in an other EU member state for atleast 3 months. Though UKVI disagrees with that too, being *****. A short holiday back to the UK would be possible if your non EU wife got a residence card ("family member of a citizen of the EU/EEA"), but that too could take a while since your and her migration application would need to be processed . In some countries a few weeks, or a few months.

@Krisb: don't be silly, the number of EU/SS routers is not significant and all and the rule only applies to them. They are now finally able to visit the UK (for a holiday) without visa if they have the proper type EU/EEA residence card (a regular residence permit from an other EU member won't work). The UK (under Tony?) agreed to these rules themselves but the British authorities were being c***ts untill now and denying proper application of the rules (treaty) they agreed upon!

And if they wish to settle, they cannot just start claiming benefits if that is what you are worried about. EU immigrants and their family are only allowed to settle if they are not an unreasonable burden for the state.

So I hope you don't believe nonsense from (UKIP?) fools/liars that cry out that thousands of families will now come to the UK without the British being able to do anything about it except for paying them bucket loads of wellfare money. Or just wait and see for yourselve in a year or so to see that there was no tsunami if the contents of the Directive 2004/38 are not clear and convincing enough.

Edited December 19, 2014 by Donutz

[theoldgit]

A couple of posts removed, this is an important issue to many so please let's keep posts sensible and on topic.

[Donutz]

Continued from the other topic:

Key element is that the wife already lives inside the EU. The rulling does not apply to persons with a foreign spouse that doesn't live in a EU-country.

For people living with a spouse in Thailand for instance the ruling does not have any effect.

Not even that, only those who are doing the SS/EU route (EU nationals currently living in an other EU country and their non-EU spouse or other direct family having the EU/EEA type residence card that comes with that) are covered, as per the directive 2004/38 who clearly spells that out and which the UK has willingly refused to apply/incooperate in the UK even thuogh the UK has signed that agreement!

So it wil only be a relative small number of people who will be able to make short visits visa free, god forbid them visiting the UK without visa delays to spent money in the UK. Ofcourse they could decide to settle in the UK but then they would need to apply for immigration (under the directive, so they would basically be able to live here without many requirements except for not being a burden to the state or treat to national safety).

We, me being a Dutchy in NL with and Thai wife (regular residence permit holder) still need to get her a (free, prioritized, minimum hassle) UK visa in advance, type EU/EEA. A Brit in the UK with a non EU spouse still needs a regular visa for the UK or other EU countries. But a Brit or Dutchy living in say France, won't need a visa for the spouse to visit any other place in the EU. They are EU/SS routers, the spouse having a "family member of an EU/EER national" residence card rather then a regular residence permit. And yes a Brit living in France or Spain with their spouse who olds an EU/EEA residence card won't need a visa either, they don't hold a regular residence permit after all.

So the comments of the court opening the floodgates (by making the UK properly apply the directive they agreed upon in 2004 and who spells this all out clearly) is total b*ll*cks. Thank you incompetent press and politicians with an (anti migration/visitor) agenda...

This is topic number 4 on this item... Ofcourse it's exciting news that the UK finally is forced to abide the rules (treaty) they themselves agreed upon but particulary when a great newsitem is announced it's rather likely that a topic has been made already, not?

See: http://www.thaivisa.com/forum/topic/785187-european-court-of-justice-ruling-re-family-visitors-to-the-uk/

Perhaps ToG can merge/move your posts/close this topic.

Maybe,maybe not?

The topic you mention seems to be written from the point that there will be mass immigration to the UK.

My point is rather more focused on Spain and my situation.

Up to the mods to decide.

It's the very same discussion, though UK media doesn't seem to understand what the ruling means and rather then quoting/consulting an expert such as an immigration lawyer they decide to quote/consult UKIP. That is like quoting the Green party when there is a ruling by a court over enviromental polution laws/treaties and how a government applies it. Fair enuogh to get an opinion but for entirely factual information hardly the most reliable source..

The topic further discusses what the ruling actually means for EU/SS routers such as you.

Edited December 19, 2014 by Donutz

[laislica]

I left the UK in 2000, travelling in Europe and finally settled in Spain and became resident there in 2004.

Sold UK property, bought in Spain, been there ever since with no wish to return full time to the UK.

I took my Thai wife to Spain and it took only 5 months to jump the hoops and get her issued with a Spanish ID for Foreigners.

Different from mine which is just a number.

She has a proper ID Card with photo, fingerprint and my details on the back.

We spend more than 180 days per year in Spain to maintain her residency.

Other friends with Thai wives took up to a year to complete this requirement.

Good job we are all retired as it was very time consuming.

So yes, a Brit man could go to another EU country and get residency and bring his wife there. Then go through the hoops.

(5 - 12 months later and not free by any means, translations, authentications, recognition by a Brit Consul - oaths to swear - documents to be sealed, interviews in person etc.

not to mention the time and cost in Thailand to get the police clearance, health certificate etc to get the free EEA visa in the first place)

Once she gets her ID she can visit, lot live in the UK.

Like big deal!

How will this open the flood gates?

I am hoping that this ruling sticks and we can visit in the future without feeling like outcasts.

We had our first attempt at getting a visit visa for her refused already!

Their grounds were "On the balance of probabilities" - she would overstay and need financial help.

Utter BS!

Their BS prevented us from seeing our first grandchild as a baby!

A breach of human rights if nothing else.

[Donutz]

I am hoping that this ruling sticks and we can visit in the future without feeling like outcasts.

We had our first attempt at getting a visit visa for her refused already!

Their grounds were "On the balance of probabilities" - she would overstay and need financial help.

Utter BS!

Their BS prevented us from seeing our first grandchild as a baby!

A breach of human rights if nothing else.

It will stick, it has been EU legislation since 2004 (and perhaps before, I don't know what previous agreements on Freedom of movement for capital, people, goods etc. within the EU/EEA said) but the UK thus far refused to incorporate this into their national laws. Not the only nation who only incorporated the bits they like and illegally leaving out the bits they don't like, Spain for instance also has not 100% incorporated the 2004/38 directive (minimal documentation is required, a legal marriage certificate of a genuine marriage from any country should be sufficient but as you experienced the Spaniards want a lot documents and fancy stamps more which technically they are not allowed to ask for!).

If you were living in Spain already for atleast 3 months, and better yet, your Thai wife having had her EU/EEA residence card, then she shouldn't have had a need for a visa. Even if there was such a need, it should have been a free visa. The family of EU nationals are entitled to a free visa, issued ASAP with no requirements if they can show that they are indeed family, travel together (or join one an other at the place of destination), and are no threat for public safety. UKVI has the EU/EEA visa for such applications but the UKVI site is terrible. If you don't look under EU/EEA permits you will not find out, the online "what visa, if any, do I need?" tool doesn't guide you their either. Pathetic.

[laislica]

I am hoping that this ruling sticks and we can visit in the future without feeling like outcasts.

We had our first attempt at getting a visit visa for her refused already!

Their grounds were "On the balance of probabilities" - she would overstay and need financial help.

Utter BS!

Their BS prevented us from seeing our first grandchild as a baby!

A breach of human rights if nothing else.

It will stick, it has been EU legislation since 2004 (and perhaps before, I don't know what previous agreements on Freedom of movement for capital, people, goods etc. within the EU/EEA said) but the UK thus far refused to incorporate this into their national laws. Not the only nation who only incorporated the bits they like and illegally leaving out the bits they don't like, Spain for instance also has not 100% incorporated the 2004/38 directive (minimal documentation is required, a legal marriage certificate of a genuine marriage from any country should be sufficient but as you experienced the Spaniards want a lot documents and fancy stamps more which technically they are not allowed to ask for!).

If you were living in Spain already for atleast 3 months, and better yet, your Thai wife having had her EU/EEA residence card, then she shouldn't have had a need for a visa. Even if there was such a need, it should have been a free visa. The family of EU nationals are entitled to a free visa, issued ASAP with no requirements if they can show that they are indeed family, travel together (or join one an other at the place of destination), and are no threat for public safety. UKVI has the EU/EEA visa for such applications but the UKVI site is terrible. If you don't look under EU/EEA permits you will not find out, the online "what visa, if any, do I need?" tool doesn't guide you their either. Pathetic.

Thanks for merging the two threads.

The UK's website for visa's is very difficult to navigate and too easy to get into loops!

There is no way to get a contact detail to allow one to "Talk" directly with an officer.

At least in Spain I can find a phone number and talk to somone in Immigration in Madrid!

On compliance with rules.

If you take your UK car to Spain and re-register it there.

You will have to pay additional VAT based on what they say your car is worth - also totally illegal LOL

Thery are all at it!

[7by7]

It does seem that the UK is not the only country guilty of picking and choosing which parts of the directive to implement and which to ignore!

Hopefully this ruling, and similar ones, will, sooner rather than later, ensure that all EEA countries apply the rules correctly.

Anyone who feels that they have not been treated properly under the rules, by any member country, should make a complaint to SOLVIT.

[Liquorice]

SOLVIT are useless and powerless.

They'll forward your complaint to whoever, then forward whoever's reply to yourself.

They won't personally get involved or take a stance.

[7by7]

I have never had to complain to SOLVIT personally; but know of people who have; including members of this forum, with positive results.

For example, this post in another topic.

Whilst the EU Commission might not act when the French run roughshod over the rules, SOLVIT will help http://ec.europa.eu/solvit/index_en.htm. SOLVIT are facilitators and will intervene to cut through issues, certainly when we complained to them last year the French rolled over pretty quickly.

Presumably you had a different experience?

[theoldgit]

SOLVIT are useless and powerless.

They'll forward your complaint to whoever, then forward whoever's reply to yourself.

They won't personally get involved or take a stance.

That wasn't my experience, I complained to them regarding one of the Consulates here in Bangkok, I put forward a robust argument and they chased until the Consulate backed down, albeit without admitting they were wrong.

I found them to be supportive and offered advice throughout.

[Jay Sata]

SOLVIT are useless and powerless.

They'll forward your complaint to whoever, then forward whoever's reply to yourself.

They won't personally get involved or take a stance.

I have to agree given the experience of a friend of mine.

It is one thing to quote the rules.

Another to try and apply them on the ground and experience the unfairness of the EU and the way nations choose to pick and choose like a buffet.

For example how can hardened criminals from the EU enter the UK without any checks while genuine family members of UK citizens need to jump through hoops to enter Spain, a country that is renowned as a haven for criminals?