REQUIREMENT FOR ENTRY PERMIT TO THE UK FOR EU FAM RESIDENCE CARD HOLDERS

Many of our clients are lawfully resident in the State as the family members of EU citizens pursuant to Directive 2004/38, the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended). According to the EU Directive, such persons are entitled to travel to other EU Member States without the requirement to first apply for a visa. Article 5 (2) of the Directive makes this very clear;

“Possession of a valid residence card referred to in Article 10 shall exempt such family members from the visa requirement”

However, in practice, many clients experience difficulties in entering the UK without a visa. We have heard of a number of cases in which the EU family member was not permitted entry despite carrying the EU Fam residence card. Many complaints have been made to the European Commission against the UK in this regard.

Recently, the European Court of Justice has had an opportunity to hear a case directly on this point:

Sean Ambrose McCarthy and Others v Secretary of State for the Home Department 

(Case C-202/13)

The judgement is very helpful to all those EU Family members travelling between UK and Ireland.

The applicant, Mr McCarthy, is an EU citizen holding dual Irish and British nationality. His wife is a Columbian national who holds a valid ‘residence card of a family member of a Union citizen’ (‘residence card’). This card was issued by the Spanish authorities, the State in which the couple and their daughter have been resident since 2010. The family also own property in the United Kingdom and travel there frequently. The legal issues in this case arose from the UK’s requirement that holders of such a residence card must apply for an entry permit (‘EEA family permit’) before they are permitted to enter the State. These family permits are valid for six months and must be renewed in person at a UK diplomatic mission, necessitating Ms McCarthy to travel from their home in Marbella to the diplomatic mission in Madrid.

The family argued that the provisions in UK law infringed their rights of free movement. They brought a case to the High Court of Justice of England and Wales, who in turn referred a number of questions to the ECJ; namely whether Directive 2004/28 requires family members from non-Member States to obtain an entry visa prior to travel.

In a decision issued on the 18th December 2014, the ECJ held that the above Directive was applicable in the current case, given that it applies to any EU citizen exercising their right to freedom of movement in another State. The Court further held that by requiring family members to obtain an entry permit in addition to their residence card, the UK was imposing “a condition for entry which is additional to the conditions for entry provided for in Article 5 of the directive”. The Court ultimately found that the provisions could not be interpreted as to allow this additional burden, even if the objective is the prevention of borders being crossed illegally. In that instance, Member States may have a right to examine the authenticity of documents or data, but are not permitted to determine the conditions of entry for persons covered by the necessary provisions in EU law. 

Additional Reading:

Judgment in Case C-202/13: http://curia.europa.eu/juris/document/document.jsf?text=&docid=160942&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=216851

Court of Justice of the European Union Press Release:

http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-12/cp140182en.pdf

Karen Berkeley

Brophy Solicitors