Brits Can Bring Foreign Family To UK - Ruling

[fred]

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

The European court has now ruled in the couple's favour, saying the rules did not allow the British government to stop family members entering the country if they did not have a visa.
The Government said it was "disappointed" with the ruling.
The Prime Minister has come under increasing pressure to take on the EU over the impact of freedom of movement rules on immigration.
Last month he announced a block on EU migrants claiming welfare for the first four years after they arrive in the country, suggesting that if the EU blocked the move he would campaign for Britain to leave the union.
Responding to the European ruling, Conservative MEP Timothy Kirkhope, spokesman on justice and home affairs, said: "Of course the UK should have an immigration system which is fair, and does not disadvantage the right of British citizens to be with their family.
"However, we are disappointed with this judgment as we believe that the UK's visa system is both fair and lawful, and does an important job in meeting this country's migration needs.
"Britain will always be best placed to decide and deal with its own immigration needs - not a judge in Luxembourg."
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."

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

[irishman12]

Should be and could be doesn't make can--

[grahamw48]

It will be interesting to see how this pans out. :Erm:

[joebloggs]

They already have to be in the EU. Getting into the EU is a different story :wink:

[Pete/London]

They already have to be in the EU. Getting into the EU is a different story :wink:

I thought it was easier to get into Spain or Ireland, I am sure I have read about it before

[joebloggs]

Each country interprets its own version of EU rules. I don't see a problem with this ruling, as the non-EU citizen has to already be in the EU. John Carr in Spain will be happy his wife will not need a visa.

I wonder how many visas the UK refuses for non-EU family members of EU citizens. It must be small, as they have virtually a legal right to come here..

[London_Manila]

It will be interesting to see how this pans out. :Erm:

Expect new laws to snuff this one out

[johncar54]

Thanks Joe.

[Trefor]

Isn't this about a visit visa though, not permanent residence. So she is skipping whatever the opposite of a Schengen Visa for us is? This isn't a big hurdle for any Euro resident (not that I've tried to get an EU visit visa for the UK).

[johncar54]

Isn't this about a visit visa though, not permanent residence. So she is skipping whatever the opposite of a Schengen Visa for us is? This isn't a big hurdle for any Euro resident (not that I've tried to get an EU visit visa for the UK).


I parallel that case except my wife is Filipino.

At present if we want even to go to say Gatwick and transfer to Heathrow, my wife needs to make a 600 mile round trip to Madrid, to obtain a visa.

That's a pretty big hurdle believe me

[johncar54]

Fred, I have been trying to find the ECJ case reference number. I have left a message with the newsroom at the Daily Mail, and I am waiting for a reply. Do you have the ref No. please?

Thanks,
John

[fred]

Sorry...I do not John.

I wouldn't even know where to start searching with that kind of bureaucratic machine either!

Watch this space though..I`m sure someone like Joe will chime in!

[johncar54]

Thanks Fred.

I found it on line using :- http://curia.europa.eu/juris/recherche.jsf?language=en

It is Case C-202/13

But the ruling has not yet been published so we will have to wait to see the exact wording.

[Terpe]

Thanks Fred.

I found it on line using :- http://curia.europa.eu/juris/recherche.jsf?language=en

It is Case C-202/13

But the ruling has not yet been published so we will have to wait to see the exact wording.

Hi John,
Take a look here (http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-12/cp140182en.pdf )

[johncar54]

Terpe, don't know how you do it. Thanks so much.

John


PS Having now read that through it would appear the 'door is now open' for me to take my wife to UK for a family visit, or transfer from one airport to another.

A very Happy Christmas present to all those affected.

And, if you read this, thank you Sean McCarthy for taking the Action.

[grahamw48]

Hi John,
Take a look here (http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-12/cp140182en.pdf)

Looks like the second page of that document/statement deals with what I would call the 'tarring with the same brush principle'. Interesting. :smile:

[johncar54]

From this extract it would seem that the family member may be able to travel alone, as now within the Schengen Area.

The Court of Justice confirms that Directive 2004/38 is applicable to the situation of the McCarthy family. The directive applies to any EU citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national and to his family members.
There is nothing in Directive 2004/38 indicating that the right of entry of family members of the EU citizen who are not nationals of a Member State and the exemption, laid down in the first sub paragraph of Article5(2) of the directive, from the requirement to have a visa are limited to Member States other than the Member State of origin of the EU citizen. Thus, where a family member of an EU citizen who has exercised his right of freedom of movement is in a situation such as that of Ms McCarthy Rodriguez, that family member is not subject to the requirement to obtain a visa or an equivalent requirement in order to be able to enter the territory of that EU citizen’s Member State of origin

[Trefor]

I parallel that case except my wife is Filipino.

At present if we want even to go to say Gatwick and transfer to Heathrow, my wife needs to make a 600 mile round trip to Madrid, to obtain a visa.

That's a pretty big hurdle believe me

That is a bit of a pain. Is there no multi-entry visa so just the one trip to Madrid?

[johncar54]

Going a bit further, Does this mean that if family members can travel freely, then they could go to live in UK as a right, like an EU citizen ?

[johncar54]

Maybe we will have to wait to exercise this 'right'.

http://www.ibtimes.co.uk/uk-government-dealt-blow-eu-supreme-court-deems-family-visa-rule-illegal-1480074

As the case is still to return to the UK's High Court for a final judgement, it would be inappropriate to comment further at this time."

http://www.telegraph.co.uk/news/uknews/immigration/11300829/European-court-ruling-threat-to-Britains-borders.html

The Government would wait to hear the outcome of a related case in the High Court which had been awaiting the ECJ decision before coming to a conclusion, the spokesman added.

[Michael Parnham]

Maybe we will have to wait to exercise this 'right'.

http://www.ibtimes.co.uk/uk-government-dealt-blow-eu-supreme-court-deems-family-visa-rule-illegal-1480074

As the case is still to return to the UK's High Court for a final judgement, it would be inappropriate to comment further at this time."

http://www.telegraph.co.uk/news/uknews/immigration/11300829/European-court-ruling-threat-to-Britains-borders.html

The Government would wait to hear the outcome of a related case in the High Court which had been awaiting the ECJ decision before coming to a conclusion, the spokesman added.

Interesting :Erm:

[Terpe]

Maybe we will have to wait to exercise this 'right'.

http://www.ibtimes.co.uk/uk-government-dealt-blow-eu-supreme-court-deems-family-visa-rule-illegal-1480074

As the case is still to return to the UK's High Court for a final judgement, it would be inappropriate to comment further at this time."

http://www.telegraph.co.uk/news/uknews/immigration/11300829/European-court-ruling-threat-to-Britains-borders.html

The Government would wait to hear the outcome of a related case in the High Court which had been awaiting the ECJ decision before coming to a conclusion, the spokesman added.

My guess is delaying tactics whilst their legal teams look into how this could be used to circumvent the current 'centre of life' for folks considering SS routes.
Such a lot of resources focussed on a very small occurrence by British Citizens :doh

Should be case of providing assistance

[johncar54]

I have just had a reply from British Airways. I had asked in the light of the ECJ Finding, if they would now permit my Filipino wife, to check in on a flight to UK with just her passport and Residencia.

I had asked them a couple of years ago relying on the Suringer Singh Route.

Their reply was the same as before, No.

QUOTE
Dear Mr xxx
Thank you for your email.
Please check the offical UK government page if a Visa is required:
http://www.ukba.homeoffice.gov.uk/

I hope you will find this helpful and that you will enjoy your trip.

Best regards
Tina Sengstock
British Airways Customer Relations

I have written back:

The info you pointed me to has not been up-dated since the ECJ made the Finding I have copied below. Thus to require any documentation in addition to a Residencia and a Passport is illegal (i.e. if you require it).

Please answer my question.

Will you now permit my Filipino spouse, who has Permanent Spanish Residencia, to check-in without any other paperwork?



Watch his space, but don't hold your breath

[johncar54]

I have just had this reply.

Thank you for your email.

We are very sorry you remain unhappy with the UK regulations regarding VISA requirements. As already explained last year British Airways has to follow offical rules published by the UK government.

We sorry to have to disappoint you.



Best regards


Tina Sengstock
British Airways Customer Relations
Your case reference is:11666979




This is my response:-

Re your email "We are very sorry you remain unhappy with the UK regulations regarding VISA requirements. As already explained last year British Airways has to follow official rules published by the UK government."

As I explained in my last email, whilst last year I had no legal finding to support my argument , the law has changed. ECJ has found that the practice which had been adopted by the UK Government is illegal. See the attachment on my earlier email. Thus as you now know, you will be in breach of EU law if you implement the illegal practice. You cannot avoid your legal responsibilities by quoting out of date information. The fact that the UK government may not have changed their published information, is at the most an excuse, but certainly no defence for BA if they break the law.

I do not want to put this to the test and take action again BA, thus I request that you forward this to your legal department so that they may advise BA on its future conduct.

I also wish to tell you that I will be publishing my concern and your subsequent response. That may result in others also testing your failure to comply with EU law.

John Carrington

[fred]

Sounds like from the tone of their reply they seem to be getting a bit sarky..
I`d be interested in how they decide to reply to your latest email John!
Keep the buggers on their toes.

[johncar54]

Sounds like from the tone of their reply they seem to be getting a bit sarky..
I`d be interested in how they decide to reply to your latest email John!
Keep the buggers on their toes.

Hi Fred, I just hope that others will also contact BA

Of course, I am just taking a punt in the dark that the law has been 'automatically' amended following the finding. Although I suspect the UK courts or the government will need to accept it.

This is rather like the Stewart ruling about allowances for disabled which was judged by the ECJ as incorrect, and as a result the DWP changed the rules on Winter Fuel Allowance without any court obliging them to do so.

[Dedworth]

Keep at them :xxgrinning--00xx3: I liked this bit

"You cannot avoid your legal responsibilities by quoting out of date information. The fact that the UK government may not have changed their published information, is at the most an excuse, but certainly no defence for BA if they break the law."

I wonder if the faceless BA bureaucrat will just stab the standard reply template button this time

[malolos]

I asked immigration at Gibraltar Airport about this rule and their reply was my filipina wife is free to travel, we will put it to the test on January 31st.
If B.A. refuse to let her board I will force the issue by arresting them for breaking the law.
Watch this space.

[johncar54]

A couple of years I exchanged emails with the Immigration service in Gibraltar regarding taking my wife to Gib.

I have Irish and UK nationality (2 passports). If I did not disclose my UK nationality I was permitted to take my wife to Gib. I did that several times.

However, as a UK national I was permitted to take my wife to Gib only if I could show I had worked in Spain.

I had been a voluntary translator with the National Police for around 15 years. I asked the Immigration, ‘what constituted work ? ’ i.e. did it require that one had been paid?

I have copied the last email, which said I could take my wife to Gib. I have done that once using my UK passport. I took a copy of the email as I anticipated problems, but I was not questioned when we entered: I showed my UK passport, my wife her Filipino PP and Spanish Residencia.

I do not know if maybe as a result of my exchanges, or otherwise, if there was a change of interpretation in Gib , or if it only related to my circumstances i.-e. that I proved I had worked in Spain.


Now back the last post.

Immigration's powers would be confined to a person's right to enter Gib. The immigration service I understand would have no power to intervene with regard to a carriers right to permit a person to fly. Thus it would be solely BA who decide.

As I said, I do not know if a judgement in the ECJ instantly changes the law upon which they have pronounced, but I suspect it does not. Thus until the UK Government announce a change in their practice, I suspect any carrier will refused to check-in passengers whom they understand need a visa.

It is my understanding, that if a passenger is refused entry to any country, the carrier is required to return them ON THE NEXT FLIGHT to the country from which they flew. That is so even it means bouncing another passenger, they cannot delay until they find a seat. Thus the airlines are very careful not to be in such a situation.

On the point of ‘arresting them’. I do not have any knowledge of Gib law but I do not believe there is any common law right to arrest (even in UK) and certainly no statutory power to do so. It would I believe be a matter for civil not criminal proceedings.

Malolos, I would not recommend you attempt any unlawful act as it may land you in the courts in Gib. But I will be ‘watching this space’ to see how it goes, and I wish you success.


Emails to and from from Gib Immigration dated 30.9.13

Sent: 29 September 2013 09:42
To: Austin Viagas
Subject: entry to Gibraltar

I am a British national living in Spain with my non EU wife. She has permanent Resident Status.

I understand that if I have worked in Europe (outside UK ) my wife can accompany me to visit Gibraltar without requiring a visa (Surinder Singh ? )

I have been a voluntary worker with the National Police, for 15 years and for a while with the Guardia Civil, although of course without payment.

I have a an official ID issued by the National Police showing that I am a 'Colablrador-Interprete'

Does that permit me to take my wife with me to visit Gibraltar ?


Thank you.

30.9.1
Dear Sir

Thank you for your enquiry. Your wife may enter Gibraltar if accompanied by yourself with her Spanish residency card which should state that she is a family member of an EU National.

Kind Regards


Austin Viagas
Executive Officer
Immigration Department
Royal Gibraltar Police
Duke of Kent House
Secretary's Lane
Gibraltar

Tel: +350 20061564
Fax: +350 20074198

[malolos]

Hello John, interesting post, B.A. accepted the booking with my wifes passport details, if they refuse to let her board then I will force the issue with arrest as BA would in fact be breaking the law.

[Trefor]

Hello John, interesting post, B.A. accepted the booking with my wifes passport details, if they refuse to let her board then I will force the issue with arrest as BA would in fact be breaking the law.

My concern would be simply that they will not have the authority to make the decision locally in Spain, and need to speak with 'control' in the UK, who would roll out the party line and say their 'policy' is no visa no travel. Whether one is needed or not they can still have an outdated rule about who they choose to accommodate on their planes and come up with an excuse for it being there. Yes you may go to court that your wife was refused travel but their corporate legal team will probably decide it is worth sitting out.

I think I would jump in a car and drive to Calais and deal with UK Border directly.

[grahamw48]

Try Ryanair.

[johncar54]

Thanks for replying.

I will look forward to hearing that all went well.

On the arrest point. I am 100% certain that there is no power for anyone, including the police, to arrested anyone in these circumstances.

If a complaint was made to the police , they might investigate it and then submit it to their legal department for advice on how to proceed. If it was decided to go ahead I am almost 100% certain it would by way of summons. However, as I said, I very much doubt that BA refusing to allow a person to check in could possible be anything but a civil matter, in which case you would have to take any legal actions which you decided were appropriate. As McCarthy did in the ECJ. There is never any power of arrest in a civil case.

(Malolos: Having retired from the police in UK in 1988 I am admittedly a bit rusty, although I try to keep abreast of new legislation. I would advise you 'as a friend' do not do as you suggest no matter what happens. Almost certainly you would be arrested, at the very least for disorderly behaviour or maybe assault if you use any force, even like putting your hand an another person, and end up in court.


PS That BA accepted the booking does not mean they will not ask for other paperwork, say a visa, before they will let her check in. The same applies to everyone. One can book a flight and the airline will never seek to see a visa, passport etc. but on check-in, if to enter the country you are flying to, a particular document is required, they will insist you have it.

I would suggest that you check with BA before the departure date that they will not insist on a visa. Unfortunately I am pretty sure you will get the standard reply that I did, see my previous post.

[johncar54]

I have just had a friend ask me if, as a result of the ECJ finding, a Brit living in UK can take his wife to say, Spain, without having to obtain a Schengen Visa.

Any ideas/experience on this guys?

[Arthur Little]

I have just had a friend ask me if, as a result of the ECJ finding, a Brit living in UK can take his wife to say, Spain, without having to obtain a Schengen Visa?


Doubt it, John ... perhaps it's just my suspicious mind ... :anerikke: ... but, as is so often the case, there's bound to be a "catch" somewhere in that ruling.

Again, though ... :anerikke: ... I have been known to be wrong!

[Terpe]

I have just had a friend ask me if, as a result of the ECJ finding, a Brit living in UK can take his wife to say, Spain, without having to obtain a Schengen Visa.

Any ideas/experience on this guys?

As always it depends....
Anyone who is the holder of a Residence Card can travel within the EU without a Schenghen visa.

Those holders of a Spouse Visa under UK immigration rules have varying stories to tell.
Many bloggers have managed it and many have not. They seem to do these things just for making a point. Wouldn't be the kind of experience I'd want to face anyway.
I much prefer to have some security in my travel plans.

As has been stated before, to the largest extent the 'carriers' have the final say in line with their own organisational policy.
Travel by ferry appears to be offering the best chance of success.
Most 'bloggers' agree that a great deal of care and supporting documents are needed especially if crossing borders within the EU Schengen zone.

[Arthur Little]

Anyone who is the holder of a Residence Card can travel within the EU without a Schengen visa.


:yeahthat:'s true. :doh ... fraid my earlier reply had been based on the Immigration Status of Spouse Visa holders as opposed to naturalised non~European marital partners already in possession of Residence Cards. :icon_sorry:

[johncar54]

A friend, she is the Filipino wife of a UK national (he also has Irish nationality) living with husband in Spain, she has permanent residencia.

Yesterday they went to British Consulate Madrid to get permission to travel together to UK for a holiday.

I thought they would get an EEA permit (free) but they were told she had to apply for a Visa, at cost of £110 plus courier costs when it is approved.

They asked what about the ECJ finding and were told that when/ if that ever became effective it would appear on the UK Gov web page.


I have looked at the page to apply for the EEA permit but it 'leads to' the visa application.

[Dedworth]

A friend, she is the Filipino wife of a UK national (he also has Irish nationality) living with husband in Spain, she has permanent residencia.

Yesterday they went to British Consulate Madrid to get permission to travel together to UK for a holiday.

I thought they would get an EEA permit (free) but they were told she had to apply for a Visa, at cost of £110 plus courier costs when it is approved.

They asked what about the ECJ finding and were told that when/ if that ever became effective it would appear on the UK Gov web page.


I have looked at the page to apply for the EEA permit but it 'leads to' the visa application.

These unaccountable bureaucrats are having a laugh :mad:

[johncar54]

A friend, she is the Filipino wife of a UK national (he also has Irish nationality) living with husband in Spain, she has permanent residencia.

Yesterday they went to British Consulate Madrid to get permission to travel together to UK for a holiday.

I thought they would get an EEA permit (free) but they were told she had to apply for a Visa, at cost of £110 plus courier costs when it is approved.

They asked what about the ECJ finding and were told that when/ if that ever became effective it would appear on the UK Gov web page.



They got the passport back yesterday with the visa.

[johncar54]

I asked immigration at Gibraltar Airport about this rule and their reply was my filipina wife is free to travel, we will put it to the test on January 31st.
If B.A. refuse to let her board I will force the issue by arresting them for breaking the law.
Watch this space.

7.2.15
Malolos: How did you get on ?

8.2.15 PS
I hope your 'no reply' does not mean you had 'serious problems' when booking in !!!

[johncar54]

My wife and I went to Gib yesterday. She was allowed in with her passport and Residencia, and me with my Irish PP. However, this time they took her papers to an office and apparently made a note of her visit. I was unable to establish why that was. They just said the 'system' is always changing !

PS They did not ask me if I wanted to visit Malolos !!!!!

[johncar54]

I am realy surprised there has not been a lot of posts about this. Anybody tried using the ECJ Finding, apart from Malolos (does anybody know where is ) ?

[johncar54]

Tis is an extract from:-
www.gov.uk/government/publications/entering-the-uk-as-the-holder-of-an-article-10-residence-card/entering-the-uk-as-the-holder-of-an-article-10-residence-card

If you are a non-EEA national who holds a valid genuine residence card, issued to you as the family member of an EEA national who is exercising free movement rights in another EEA State (i.e. not your EEA relative’s Member State of nationality) under Article 10 of Directive 2004/38/EC (the ‘Free Movement Directive’), you may use this document for travel to the UK if you are accompanying your EEA national relative here, or joining your EEA national relative in the UK.

Has anybody used this provision ?

[johncar54]

Further.

I have just noticed the web page was updated yesterday, 11th May 2015, thus it must be the most up-to-date info.

I note that the extract I posted 3 days ago was not altered when it was up dated.

[johncar54]

This is an account of a friend who lives with his Filipino wife in Spain. She has permanent residence status.

I had sent them the copies of the advice (email) from the Border Force and from the UK Gov web page, as posted above.

He and his wife arrived in Manchester. She did have a visa as they had been advised by the British Consulate in Madrid she must have one. In an attempt to test if entry would be allowed without a visa, his wife showed her Philippines Passport photo page and her Spanish Residencia Card.

This is part of the email I just received from my friend:-

My wife needed to fill up a form with her details and then she was sent to an immigration office, the immigration officer took her fingerprints and checked her Spanish resident ID on the computer and also asked many questions about everything in the UK and about her visit and previous visits.

I ask if she need a visa to enter the UK, the immigration officer said, yes in case she gets stopped by immigration officers anywhere in the UK and he said it may depend on the border control.
.

[Dedworth]

Interesting ....

[fred]

John.. Wouldn't it be easier for long term foreign residents to apply for Spanish citizenship and become EU cits?

[johncar54]

Fred, my wife applied for Spanish Nationality but after a 3 years process she was refused.

I understand that it has become even harder now to prove that one is integrating into Spanish society, one of the requirements.

[johncar54]

error

[Dedworth]

I understand that it has become even harder now to prove that one is integrating into Spanish society, one of the requirements.

The UK has a lot to learn from Spain - here any Tom, Dick or Abdul isn't required to integrate and they don't. Look at France surrendered to Muslim ideology and now has the largest Muslim population in Europe - we are quickly following