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/br...y-to-uk-ruling

[irishman12]

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

[grahamw48]

It will be interesting to see how this pans out.

[joebloggs]

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

[Pete/London]

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

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.

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

[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

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

[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-governme...llegal-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/ukne...s-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-governme...llegal-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/ukne...s-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

[Terpe]

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

http://www.ibtimes.co.uk/uk-governme...llegal-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/ukne...s-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

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 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.