Visa free travel for Residence Card holder Case refer to ECJ

[G4B3R]

Dear acme4242,

Thank you so much you have made my day, i really appreciate all your effort

[tebee]

Well that's good news for us, as we are due to be travelling April 8th from Calais to Dover and are not bothering to get family permits.

So we should have no problems unless we meed an official not aware of the new regs. Be interesting to see if they stamp my wife's passport though.

[backtouk]

Two hours ago,I successfully entered UK with EU community resident card (issued in Spain ) before April 5.

[alazani28]

Two hours ago,I successfully entered UK with EU community resident card (issued in Spain ) before April 5.

Thank you for your post,
can you please give more details:
What nationality is your partner & also how did you travel to UK etc.

Many Thanks again

[alazani28]

I JUST RECEIVED THIS E-MAIL FROM SOLVIT (EUROPEAN ADVICE).
AS I SENT THIS REGARDING BEING MARRIED TO NON-EU WITH FAMILY MEMBER OF EU CITIZEN RESIDENCY CARD FROM GERMANY AND THAT I AM BRITISH CITIZEN.


Thank you Mr ....... for contacting Your Europe Advice.

When you travel with your wife to an EU country, her family member residence card should exempt her from the need to obtain a visa.

Under Article 5(2) of Directive 2004/38, a residence card issued to the family member of an EU citizen exempts them from the need to have an entry visa when travelling with their EU relative to another EU country.

This was confirmed last year by the EU Court of Justice in case C-202/13 McCarthy. In this case, the Court ruled that Member States are, in principle, required to recognise a residence card issued under Article 10 of Directive 2004/38, for the purposes of entry into their territory without a visa. This exemption applies to the family members of an EU citizen who travel together to an EU country other than the EU citizen s country of nationality (Article 3).

In addition, we consider that this exemption would also apply to the situation of EU citizens returning home to the UK after exercising free movement rights in another EU country in line with C-202/13 McCarthy and Case C-456/12 O & B.

Firstly, in C-202/13 McCarthy, the EU Court of Justice held at paras 41-42:
41 … there is nothing at all in Article 5 indicating that the right of entry of family members of the Union citizen who are not nationals of a Member State is limited to Member States other than the Member State of origin of the Union citizen.
42 Accordingly, it must be held that, pursuant to Article 5 of Directive 2004/38, a person who is a family member of a Union citizen and is in a situation such as that of Ms McCarthy Rodriguez 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 Union citizen s Member State of origin.

Secondly, in Case C-456 O & B, the Court also held that when an EU citizen returns home after exercising free movement rights in another EU country, Directive 2004/38 will apply by analogy. The Court indicated that the only conditions needed for a the family members of an EU citizen to be able to claim the benefit of Directive 2004/38 when returning home are as follows:
(1) genuine residence of an EU citizen and their family members in the Member State from which they have come, which means meeting the conditions of Article 7 of the Directive; and
(2) during this residence the EU citizen created or strengthened his family life.

As a result, we consider that the visa exemption in Article 5(2) of Directive 2004/38 applies to the situation of non-EU family members returning to the UK with their British relative after exercising free movement rights in the UK.

However, as a practical matter, you will also be aware that, at present, the UK authorities also require to show that you worked and have transferred the centre of your life to another EU country before returning to the UK, under regulation 9 of the Immigration (EEA) Regulations 2006. While, the EU Court of Justice s judgment in Case C-456/12 O & B casts doubt upon whether the UK s transfer of the centre of life test is lawful, regulation 9 has not yet been amended to reflect this development.

While the UK authorities are under a duty to give effect to this judgment, we understand that the UK authorities have taken the view that the transfer of the centre of life test is compatible with Case C-456/12. The European Commission is reported not to share this view and is expected to raise the issue with the UK authorities. This issue will therefore take some time before being resolved.

It follows that, at present, UK Border Force officials are still operating on the basis of regulation 9 of the Immigration (EEA) Regulations 2006 and will require you to demonstrate that you worked in another EU country before returning home and that you had transferred the centre of your life to that EU country. Given the relative complexity of making a determination on this point, Border Force officials are likely to refrain from making such a decision and instead to refuse entry to non-EU family members of British citizens returning home who seek to enter the UK using only a residence card issued under Article 10 of the Directive.

A refusal would lead to the family member being refused entry to the UK and sent back to the country they are travelling from. The person would then need to remain outside the UK while making an appeal, which can take around six months for a determination by the First Tier Tribunal and can involve significant costs.

In addition, we understand that the changes made to the Immigration (EEA) Regulations 2006 have not yet been communicated to airlines and other transport companies. This is also likely to lead to a possible denial of boarding by those airlines which are not yet aware of the changes.

To minimise the risk of being refused entry to the UK, we therefore recommend that the non-EU family members of British citizens returning home should apply for an EEA Family Permit.

We hope this answers your query.

We remain at your disposal, should you require further information.

[backtouk]

My wife is Swedish and we are living in Palma. We arrived at heathrow airport .

[CheGuevara]

My wife is Swedish and we are living in Palma. We arrived at heathrow airport .

What Airline?

[KJS]

Hi There

Please can someone can clarify visa free travel, I am Indian National living and residing with my British Wife In Netherlands. Recently I have received my Resident Card stating Family member of EU/EEA Citizen. We wish to travel to UK:
1.Do I require Visa and
2 Am I allowed to work there on Code 1A Stamp.

There is lot of confusion, regarding this matter.

Thanks
KS

[rosebead]

^ If you want to be sure, you'd probably have to wait for the Home Office to release guidance or reveal the answer in a Freedom of Information request before attempting travel. It's not completely clear yet what stance the UK will be taking with returning British nationals and their family members.

[tebee]

As a matter if interest, if they do refuse entry when they should not have done, are they liable for the extra costs incurred ?

I say this as some one who will be trying this a week today.....

[alazani28]

As a matter if interest, if they do refuse entry when they should not have done, are they liable for the extra costs incurred ?

I say this as some one who will be trying this a week today.....

Can you please tell us your Citizenship & Also your partners and please can you update us once you try this route.

Many thanks

[tebee]

I'm British, but have lived in France for 10 years. I run a small manufacturing business here and my wife is Chinese born, but now has Thai nationality from a previous marriage. She has a 5 year French residence card.

We are only doing a short 2 week trip - taking in a friends wedding and I have a stall booked at an exhibition where I will sell my wares. It's also for my wife to see the UK which she has never visited - we are also looking a business , currently owned by a distant relative who is looking to retire as he's now 72. If my wife likes it and we manage to sell the rental houses we still have in Bangkok, we may buy it and move back permanently, but not for another year or so.

I know Family permits would be a certain solution, but it's a 8 hour drive each way to get one, not to mention the expense and the hassle of filling in prying forms.

[alazani28]

I'm British, but have lived in France for 10 years. I run a small manufacturing business here and my wife is Chinese born, but now has Thai nationality from a previous marriage. She has a 5 year French residence card.

We are only doing a short 2 week trip - taking in a friends wedding and I have a stall booked at an exhibition where I will sell my wares. It's also for my wife to see the UK which she has never visited - we are also looking a business , currently owned by a distant relative who is looking to retire as he's now 72. If my wife likes it and we manage to sell the rental houses we still have in Bangkok, we may buy it and move back permanently, but not for another year or so.

I know Family permits would be a certain solution, but it's a 8 hour drive each way to get one, not to mention the expense and the hassle of filling in prying forms.

Yeah I am exactly in same position as you, I am a Doctor working in Germany ( British Citizen ) My wife non-eu with German Family Permit. We have a daughter ( British Citizen) we only want to visit UK for like a week or 2 and it is a big hassle to drive back and forth for the Permit Visa.

Can you please Update us on how it goes because I am really interested in the outcome and I really hope it goes well for you and ur wife.
Good Luck.

[tebee]

If your wife has a German residence card I thought this was already recognized under the 2014 amendments as a valid visa?

I must admit I'm not sure how they apply this to returning British citizens using the Surinder Singh ruling, but surly the whole point of that ruling was that you couldn't discriminate against British citizens exerting the EU rights over other EU nationalities exercising the same rights.

[alazani28]

If your wife has a German residence card I thought this was already recognized under the 2014 amendments as a valid visa?

I must admit I'm not sure how they apply this to returning British citizens using the Surinder Singh ruling, but surly the whole point of that ruling was that you couldn't discriminate against British citizens exerting the EU rights over other EU nationalities exercising the same rights.

I thought the same thing but not had any concrete or official guidance yet.
So please we are kinda relying on your experience once you do travel, for it to go well with no problems and to let us know the feedback.

Thanks once again

[Haadi83]

Hi All,

I am non-eu Ex-Family Member of EEA with PR Card;

can i travel to any country of europe without visa ?

[tebee]

Well it looks like people will be able to fly with KLM with just their residence card.

https://www.timaticweb.com/cgi-bin/tim_ ... ser=KLMB2C

I note it does not mention the exceptions the UK has in the new guidelines for Surinder Singh and when the RC is issued by EEA national's home country.

[alazani28]

Well it looks like people will be able to fly with KLM with just their residence card.

https://www.timaticweb.com/cgi-bin/tim_ ... ser=KLMB2C

I note it does not mention the exceptions the UK has in the new guidelines for Surinder Singh and when the RC is issued by EEA national's home country.

Therefore when you are presented to the check in at the airport they wouldn't ask any information i.e. about being British as they will just see if you have the Family meber residency Permit?
and when you are at Boarder Control in UK as long as you show them that you have work contract they cannot refuse you entry unless it is some kind of Health Hazard or anything in that sense, am I right??

Thanks

[tebee]

I would appear so

Government has issued issued their advice on entering the country with a residence card

https://www.gov.uk/government/publicati ... dence-card

I note it says you need to bring you marriage licence along too !

Good news for some people is it also also says - Another document, “Permanent Residence Card of a Family Member of a Union Citizen” issued under Article 20 of the Directive is also acceptable.

[alazani28]

I would appear so

Government has issued issued their advice on entering the country with a residence card

https://www.gov.uk/government/publicati ... dence-card

I note it says you need to bring you marriage licence along too !

Good news for some people is it also also says - Another document, “Permanent Residence Card of a Family Member of a Union Citizen” issued under Article 20 of the Directive is also acceptable.

Yeah, exactly my interpretation as it doesn't actually say that it will reject or decline British Citizens with their spouses.
So are you still travelling this week with this route?

[rosebead]

This bit in the Home Office guidance worries me though in relation to Surinder Singhers:

However, in order to be admitted to the UK you will need to demonstrate that you have a right of admission under EU law. Without evidence that you have a right of admission, you will not be allowed to enter to the UK on the basis of your residence card.

[alazani28]

This bit in the Home Office guidance worries me though in relation to Surinder Singhers:

However, in order to be admitted to the UK you will need to demonstrate that you have a right of admission under EU law. Without evidence that you have a right of admission, you will not be allowed to enter to the UK on the basis of your residence card.

I think that is regarding tavelling for the EU family member or meeting them their. But not sure.
It is kinda bizarre that British Citizens and their partners who exercise rights abroad don't actually get mentioned in the Legislation.

[acme4242]

Government has issued issued their advice on entering the country with a residence card
https://www.gov.uk/government/publicati ... dence-card
Good news for some people is it also also says - Another document, “Permanent Residence Card of a Family Member of a Union Citizen” issued under Article 20 of the Directive is also acceptable.

Yes, TIMATIC the airline passport/visa requirement checking manual is updated and mentions it.
e.g.
https://www.timaticweb.com/cgi-bin/tim_ ... user=GFB2C

Visa required, except for Holders of a "Family Member" Residence Card marked
"Permanent Residence Card of a Family Member of a Union Citizen
or
Residence Card of a Family Member of a Union Citizen
issued by Sweden to family members of an EEA national or national of Switzerland, if
traveling with or traveling to join the EEA national or national of Switzerland.

Timaticweb Version 1.3
06 April 2015

[rosebead]

This bit in the Home Office guidance worries me though in relation to Surinder Singhers:

However, in order to be admitted to the UK you will need to demonstrate that you have a right of admission under EU law. Without evidence that you have a right of admission, you will not be allowed to enter to the UK on the basis of your residence card.

I think that is regarding tavelling for the EU family member or meeting them their. But not sure.
It is kinda bizarre that British Citizens and their partners who exercise rights abroad don't actually get mentioned in the Legislation.

That's true, although "right of admission under EU law" in the UK's interpretation of EU law could possibly cover a whole multitude of areas than just the joining/accompanying rule. I agree, the Home Office should have mentioned British sponsors in their guidance. They more than any other EEA citizens are more likely to be popping in and out of the UK for visits.

[tebee]

This bit in the Home Office guidance worries me though in relation to Surinder Singhers:

However, in order to be admitted to the UK you will need to demonstrate that you have a right of admission under EU law. Without evidence that you have a right of admission, you will not be allowed to enter to the UK on the basis of your residence card.

I sort of wonder about that - does't EU law, reinforced by McCarthy , say that the residence card should be accepted as evidence of that right? These things can be hard to prove at the border yet here they are asking for extra proof. I wonder how long it will be to the next legal challenge to UK .

I'm still planing to come to the UK on Wednesday.