Visa free travel for Residence Card holder Case refer to ECJ

[dalebutt]

Irish transposition doesn't require an holder of article 10 card to be accompanied by sponsor, although i do not think it's written anywhere, that an holder can visit Ireland unaccompanied, it doesn't stipulates that an holder should be accompanied by sponsor either.

[Rolfus]

Cyprus doesn't require the holder of a residence card to be accompanied, and recognises all residence cards, whether as EEA family member or not. But they exclude British and Irish residence cards, presumably because the opt-out is reciprocal.
See http://www.mfa.gov.cy/mfa/mfa2006.nsf/0 ... enDocument

Additional categories of persons who do NOT require visa
14. All persons who possess a valid residence permit issued by another Member State of the European Union (with the exemption if UK and Ireland) including Switzerland, Iceland, Norway and Liechtenstein.

France doesn't require family members to be accompanied. See http://www.diplomatie.gouv.fr/fr/venir- ... sommaire_3

Certains étrangers sont dispensés de visa
Les membres de famille d’un citoyen de l’union...qui sont titulaires d’une carte de séjour de membre de famille d’un citoyen de l’union ne sont pas soumis au visa d’entrée et de séjour, quelle que soit la durée du séjour

[toofan]

many thanks for clarification about Ireland . and about any country which is in Schengen zone they give entry to residence card /permit holders issued under any category from any Schengen state its like Schengen visa if you have from one state so you can travel to all Schengen zone.

[Obie]

The Advocate General did not agree with the UK court and the government decision to suspend article 5(2) of the citizen directive.

Opinion in the case of McCarthy

[rogerlongships]

I read the Advocates General summary this morning, and later read the entire document. Its a great result for Sean and his family. What happens now? The Home Office have been in breach since 2004, and have no real intention of following 2004/38. Whats the next step, how long do the UK have to respond to the opinion, and how soon could we see the Home Office forced to change policy?? We have been looking forward to the day when we can arrive at an airport and fly to the UK without EEA FP.

[neep]

This seems to be current formulation in law:

http://www.legislation.gov.uk/uksi/2013 ... 032_en.pdf

‎The Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013 :
[...]
Regulation 11 (right of admission to the United Kingdom):
...
"(2) A person who is not an EEA national must be admitted to the United Kingdom if he is —

(a) a family member of an EEA national and produces on arrival a valid passport and a qualifying EEA State residence card, provided the conditions in regulation 19(2)(a) (non-EEA family member to be accompanying or joining EEA national in the United Kingdom) and (b) (EEA national must have a right to reside in the United Kingdom under these Regulations) are met; ...."

[rogerlongships]

Note the use of the words "qualifying resident permits", currently that means only those issued by Germany and Estonia are accepted....

[Rolfus]

This is a very interesting AG opinion. I see three areas that will doubtless continue to give rise to confusion.

1) Paragraph 96 restates that only Art 2.2 Family Members have rights of entry. This continues to leave the position of Art 3.2 Other Family Members uncertain. They have the right to facilitation, in accordance with the state's own national legislation. Will the UK recognise that an Other Family Member is a Family Member when that facilitation has been carried out by another state in accordance with non-UK national legislation? Paragraph 138 supports the proposition that the other state's facilitation must be recognised.

2) Paragraph 88 gives comfort to the restriction that the family member must be accompanying or joining the citizen. But paragraph 153 part 1 does not mention it. Neither does Article 5 of 2004/38/EC. Paragraph 90 reinforces that 2004/38/EC 5.1 establishes a "sole basis". Won't 5.2 equally establish as a "sole basis" that "possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement"?

3) The arguments in paragraphs 63 to 73 are compelling. But if the court follows that route, won't it be just a matter of time before a citizen of, say, the UK, born and having lived in, say, France all his life, will not be regarded as having exercised free movement rights?

It will be very interesting to see how the ECJ rules.

[rosebead]

Rolfus, I think this issue of joining/accompanying with regards to both visas and RCs must arise from Article 3(1) of the Directive which states: "This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them."

[daddy]

How long would it take the ECJ to give judgement in this case after the advocate general's opinion?
Thanks.

[daddy]

Does anyone know how long it would take the ECJ to give judgement on McCarthy case, regarding travelling to UK with RC issued under article 10. The advocate general gave his opinion on 20th of May 2014. Any idea pls.
Daddy.

[Obie]

I think this thread is wholly unnecessary. I have therefore merged it.

I have opened a thread dealing with this issue. You have posted a query on when the judgement is expected, but there has been no response, because no one knows the precise time the judgement will be released.

It is envisaged it will be out in the Autumn. When it is out, you can be rest assured that I will update the forum appropriately.

[kye]

If I understand correctly, a "Residence Card" is different from a card that says "Residence Permit". The information given in this discussion applies, only, to "Residence Cards" that contain text stating "family member of Union citizen". Is my understanding correct?

[Praha]

Dear,
Thnak you for this topic.

I am from Morroco and my wife is Czek. I have a Czek residence permit and live and work in Prague.
I am planning a trip to the Uk, please, do I need a visa or not?
If not, can I have the exact law article which says that in order to print it and take it with me to show it to the immigration officer just in case.
Thanks.

[rogerlongships]

How are you intending to travel to the UK? Most airlines use a system that will tell them you need a visa to enter the UK, even if under EU law, thats not required. A lot of people turning up at port even with the relevent law documented have been known to get turned away,in France for example. If you can arrive at the UK border inside the UK with the relevent EU law, you stand a greater chance of entry, especially if travelling with your wife.

[Praha]

To Roger:

I am planning to travel from Bratislava airport to Luton airport.
Any advice?

[rogerlongships]

Ask the airline that you are travelling with, they may refuse to let you board without a visa due to the information they get from their database, which is not inline with the relevant EU law. I believe Easy Jet does not use the same system, has told me in the past my wife could travel without a visa, though i did have a written document from an Embassy saying i had the right to enter the UK with my wife without a visa....due to circumstances we didnt fly anyway. Send the airline an email requesting confirmation that they will allow you to tavel under 2004/38/ec as a resident permit issued as a family member,under article 10. You might get lucky. If they say no, you can send the email in a petition to the European Court, as they have no legal basis to stop you boarding an aircraft if you have a valid passport, this has already been tested in a case. The usual excuse is that the airline will be fined, but under a freedom of information act request, there has been no fines issued to any carrier that landed a family member at the border with rights to travel with/or joining their spouse in the UK. Good luck

[Praha]

If I understood it well, the major problem is the airline company and not the Immigration officers at the Uk airports, right?
Does it mean that if once in Uk airports, there will be no problems to get in UK territory?

[rogerlongships]

Biggest hurdle is getting a carrier to get you to the border. Once there, if you take a copy the relevent EU law with you and you get a border officer who understands your rights, you should get entry. Grounds for denial are based on public health and being a danger to the general public, however i have read that people have been turned away at the eurotunnel on the grounds that the officer made an assumption of a sham marriage. You should make it absolutely clear that you are seeking to enter under EU law, not the immigration rules. If the first officer brings up an issue, ask for the head duty officer.You have the right to have any refusal clearly documented with a clear explanation of why they are refusing entry. Always remain polite. You have the right to enter for up to three months without any kind of questions regarding savings or work, though it seems to be normal procedure for them to ask. We have experienced officers that (seem) unaware of EU entry law, and they are encouraged not to allow entry under EU system. Our first trip to the UK without a EEA Family Permit took around 12 weeks to arrange with a lot of emails and phone calls to UKBA. It would have been far less hassle to have just got a family permit, but the rights we have should be excercised even if some people make it very difficult.

[Praha]

Than you Roger for your explanation.
Still I have another question, do you think if the fact that I travel alone without my wife would change anything to what you previously wrote?
Even though I´ll have with me the weeding certificate and the RC of course.

[rogerlongships]

You have the right to travel if you are joining your spouse, or your spouse will be joining you after your arrival. I would expect for you to be questioned far more and a higher risk of having entry denied if travelling alone, unless you can provide copies of tickets for your wife that have been booked for the near future. UKBA have refused entry to people on the grounds that they do not believe that the EU spouse will be travelling to or joining the third country national in the UK. Always better to travel with your wife if possible.

[Praha]

In case the entry will be denied, do you think that they will put a stamp on my Moroccan passport to mention that an entry has been denied?

[rogerlongships]

Its quite possible. My wifes passport was stamped with a refusal when a EEA family permit was applied for and refused. Their reason being lack of the EU citizen providing evidence of excercising rights in another EU country. I dont believe the the paperwork supplied with the application was even read. A refusal in a passport is not a great thing to have, especially if unfairly issued.

[Praha]

Yes, British consulates stamp passports in case of refusal of visas. However I don´t know if it´s the case at airports when trying to enter the Uk territory with only an RC and the entrance will be refused.

I was wondering, in case that my entrance will be refused at Luton airport and that my return ticket will be for a week later, how is it going to be?

[rogerlongships]

You will be better off contacting the airline that you are travelling with to confirm that they will let you board. If they refuse, you can contact the head immigration officer at the airport you will be leaving from and report that the airline is refusing you leave of the country when you have a valid passport. It has been proven in court that not having a visa is not a reason to deny leave of country, meaning the airline is in breach of law. Best to sort this out before arriving at the airport, keep all emails, contact names etc.
You say your return ticket is for a week later, but you do not say if your wife is travelling with you. If you arrived at Luton without your wife and had a return ticket for a week later, that may seem unusual, as your right to enter the UK depends on your wife coming to the country.