Visa free travel for Residence Card holder Case refer to ECJ

[rosebead]

@martiner99, under MRAX, you should be allowed in with your wife with just the production of passports and marriage certificate. The UK has incorporated this case law, so you should be fine, unless you come across some idiot immigration officer who doesn't know. Regulation 11(4) in effect states the same.

@twhyonline, thank you for your story. I agree with you that the UK is still not implementing McCarthy in a way that is fully compliant with EU law. If they were, they would be following exactly what Ireland does with holders of Article 10 residence cards and just let couples in on production of their passports and the RC without further checks. The UK immigration officer should also not have stamped the non-EEA national's passport as that is not compliant with Article 5 of the Directive (but what can you do ).

@daddy, I got confused with that issue too about the family member of a Spanish national possessing a Spanish RC, but it appears that Member States can and do issue Article 10 residence cards to family members of their nationals if they wish to. This is because Article 37 of the Directive allows Member States to be generous if they want to and to apply EU law instead of domestic law to their nationals.

[tebee]

The Fact that they stamp the passports seems curious as their own regulations seem to say they should not - see http://www.eearegulations.co.uk/Archive/V20150406 section 11 subsection (3) which says

(3) An immigration officer must not place a stamp in the passport of a person admitted to the United Kingdom under this regulation who is not an EEA national if the person produces a residence card, a derivative residence card, a permanent residence card or a qualifying EEA State residence card.

On the other hand they give people 6 months, when the only need to give 3 - is this a rare example of the British Government being generous or just an excuse to let them put the stamp in ?

Two minor questions - what are the regulations refereed to in the "Admitted to the UK Under EEA Regulations 2006" and is this new stamp - it's not one I've heard of before ?

[twhyonline]

@Daddy it seems you have not been following our discussion from the get go when i first stated that some EU member states issues article 10/20 Family Member Residence Card to non -EEA Nationals Married to their Nationals Of that Same Countries without travelling outside to work to give effect to why the card may be issued in the first place,it all depends on the EU country and to how they treat their nationals/family members .like i said earlier in Spain same law is been applied and the same residence card is been issued to both family member of their Nationals/Family members of other EU member state residing in Spain.someone on this forum posted a link on these as of now it is 14 EU Member states that dose that and 13 doesn't.
https://irelandsreversediscrimination.w ... imination/
Mind you the officer checked the back of my residence card to confirm when i first stated i had an EU Family Residence Card same reason i didn't bother getting the visa which he understood correctly secondly i wasn't surprised when he asked to see our marriage certificate as these was also on their official website that when flying in with an article 10 /20 residence card you still need to demonstrate to the border agency to be admitted under EU Law,if you read closely as well it said if you posses an article 10/20 residence card you may travel without an EEA Family Permit(https://www.gov.uk/government/publicati ... dence-card ) .read between the line bro the EEA Permit was implemented to check sham marriages in other EU Member states and that UK also don't trust the authenticity of member states residence cards,so the point is this when you show up at their boarders with article 10/20 residence card they will run a check on you to their satisfaction before they let you in,is like shifting their embassies to their borders with issues relating to Family permit/EU Family Residence Cards,mind you,If you don't want to be questioned at the boarder you can as well apply for a family permit from your host country where the questioning will be done before they issue you one (which is pointless)when you can do that getting to their borders.this is the practise on ground now i tell you my friend as i passed through filling the special landing card plus our marriage related documents and the questions been made to me as to tell you UK is not fully implementing EU Free Movement Law Like Ireland were i didn't spend up to half a minute at the border with no questions been asked or filling of landing card. I hope you get my point cheers mate
@Rosabed & @Tebee the stamp surprised me too,well i believe it's an equivalent to the first Family Permit they give you at their embassies as its 6 months as well .

[rosebead]

The stamp that UK immigration officers are putting on the passports of non-EEA family members sounds like the on-the-spot entry visa that officers normally issue to non-EEA family members who come to the border without a visa. It used to be called a Code 1A stamp but now I think it's called an EEA Dependant stamp. It is the equivalent of an EEA Family Permit but issued at the border. This goes to highlight how incorrectly the UK is applying EU law, because an Article 10 RC is in effect a visa so there should be no need to issue another one at the border!

[daddy]

Thanks twhyonline for your explanation around reverse discrimination addressed in Spain and other eumember states. Indeed the directive says that if a particular member state feel that foreign EU nationals's non eu family members enjoy better treatment based on the Directives, that particular member state should also apply same treatment to the non eu family members of their own nationals.

Issue about stamping your passport is illegal and should not have happened at the first place.

Could you please tell us about your boarding, what airline did you use? and did the airline know about the recent changes made by UK, did they give you hard time before you boarded?

Thanks Bro.

[357mag]

It will be interesting to see if anyone gets hassle or turned away if they come through without a marriage certificate, for instance if they got their residence certificate as a durable relationship or as the child of a partner in a durable relationship.
You will have had your relationship checked before being issued the residence certificate so I think another state asking you to prove it is not in the spirit of free movement.

[twhyonline]

@Daddy i used Ryan Air from Malaga to Stansted Airport London same airline i used to Dublin Ireland.at first the lady at the counter desk where i have to get my boarding pass stamped before check in said i needed a visa for Stansted London and i said no i don't have to that the law has changed,she then asked me to wait she went in, i guess to ask her supervisor and later came out with a print out saying that she's very sorry that there has been a notification on paper been passed to them as at 6th Of April stating my claims that they are currently making amendments..she asked if i was travelling with my eu spouse, i said yes then they requested for her boarding pass too,checked both names and returned our boarding passes with mine stamped to proceed for checking in that was all ...cheers Bro

[rosebead]

It will be interesting to see if anyone gets hassle or turned away if they come through without a marriage certificate, for instance if they got their residence certificate as a durable relationship or as the child of a partner in a durable relationship.
You will have had your relationship checked before being issued the residence certificate so I think another state asking you to prove it is not in the spirit of free movement.

I agree. I think it would be outrageous if for instance unmarried partners had to prove 2 years of co-habitation before they will be allowed in with an Article 10 RC. It would totally be against the concept of free movement. The RC is in effect a visa and the UK should simply be letting people in with proof of ID and the RC without other nonsense checks if they were being compliant with EU law, just like other Schengen states do.

[357mag]

Yes Rosebead, I was thinking on the lines of a Brit with a durable relationship living in another state with a non EEA, who has a child from a previous relationship, who wanta to take child on trip to UK. Child would be a dependant of the Brit but no easy way to prove a relationship. Child would have a residence card so by rights that should be enough for them to travel anywhere within the EU on their own if they wanted, anything less is discriminatory.
The directive requires that a family member of an EEA citizen should be treated as an EEA citizen.
I guess the let out clause is durable relationship is classed as extended family member so a lesser entity.

[rosebead]

^ A right of entry with a Article 10 residence card is different to a right of residence, so if the UK expects people to satisfy Chapter III of the Directive (right of residence) before they will allow them to enter, that would be grossly out of keeping with Community law. The Directive does not exclude certain family member holders of Article 10 RCs from using the RC to travel. It says that all Article 10 RCs give a visa exemption.

[Obie]

^ A right of entry with a Article 10 residence card is different to a right of residence, so if the UK expects people to satisfy Chapter III of the Directive (right of residence) before they will allow them to enter, that would be grossly out of keeping with Community law. The Directive does not exclude certain family member holders of Article 10 RCs from using the RC to travel. It says that all Article 10 RCs give a visa exemption.

I would have thought the Right of Entry and the initial right of Residence under regulation 11 or Article 6 of the Directive works hand in hand.

A person cannot be allowed to enter unless they have the unconditional right of residence of 3 months.

I accept of course that the right of 3 months residence is different from the right to travel without a visa.

We have to remember that under the frontier protocol, the UK is entitled to examine a person who has a right of entry under community law, to establish their entitlement to enter.

What they cannot do, is to require an EEA family permit, stamp those people's passport. That is wholly unlawful.

But the Frontier Protocol, indeed permit the UK to examine a person's entitlement to enter and reside for an unconditional period of 3 months, as provided for in EU law.

[rosebead]

^ I meant more in the context of an extended family member who is travelling (as opposed to planning to reside) with an Article 10 residence card, as in the case that 357mag presented. It would be grossly disproportionate if that extended family member would only be allowed to travel at the discretion of the Member State or had to satisfy the Member State that they were in a 2-year long durable relationship before they will be allowed to travel with their Article 10 residence card.

[Obie]

The person can travel visa free and the UK will be entitled to do the Extensive examination of their personal circumstances at Port.

[rosebead]

But how is that "free movement" in that case? I thought the whole point of the McCarthy ruling was that the UK could not use the Frontier Protocol to obstruct family member holders of Article 10 RCs from travelling?

[357mag]

But, but, the residence card is not a visa of course, its a proof of residence, now the EEA holds that a non EEA family member is to be treated as if they were an EEA citzen. I as an EEA citizen am free to travel anywhere in the EU for up to 90 days and all I need show is proof that I am an EEA citzen, nothing more. For the non EEA that residence should have the same effect and to ask for anything more is discrimination and a barrier to free movement.
To put it another way does Ms McCarthy have to join or accompany Sean? Or can she go to another state to visit on her own.

[twhyonline]

Guys Y'all Might Find This Interesting Boarder Force Operation Manual For EEA Nationals & their Family members (General Guidance ) http://docslide.us/documents/eea-nationals.html

[Obie]

But how is that "free movement" in that case? I thought the whole point of the McCarthy ruling was that the UK could not use the Frontier Protocol to obstruct family member holders of Article 10 RCs from travelling?

I think you misunderstood McCarthy then. What the UK sought to do, was require EEA family permit pre-entry, and justify that by using the Frontier Protocol.

The court said the UK cannot do so.

For family members the directive requires automatic entry and residence, for OFM, the directive requires an Extensive Examination of their personal circumstances.

Therefore at port, the UK is entitled to examine if a person is a family member, and that there is no public policy issue preventing them entering.

For Extended Family member, they are entitled to examine if they are extended family members, and if within the meaning of their National legislation, they are eligible for entry.

[acme4242]

http://curia.europa.eu/juris/liste.jsf? ... m=C-157/03

1. The requirement for an immigration visa
26. That national of a non-Member State should not be required to show any
independent reason for entering into the territory. His right, as a matter of
Community law, is derived from the right enjoyed by the Community national, so
that to require that person to fulfill formal conditions prior to entry into
national territory constitutes not only a restriction on his (derived) right but
also a restriction on the principal right of the Community national.

31. It is therefore apparent from the provisions of the directives on the
entry of members of the family, as interpreted by the Court, that entry
formalities must be restricted to the expressly specified documents and that any
further immigration procedure is not permissible.

"a document issued by the competent authority of the State of origin
or the State whence they came, proving their relationship"

Are we saying the UK now require you re-verify your eligibility at the port, so you already have a "document issued by the competent authority of the State of origin or the State whence they came, proving relationship" but you must re-prove relationship again at the port

[Obie]

61 Those controls are carried out ‘at frontiers’ and are intended to verify whether persons seeking to enter the United Kingdom have a right of entry under provisions of EU law or, in the absence of such a right, whether they should be granted permission to enter the United Kingdom. The controls therefore have the objective in particular of preventing the United Kingdom’s borders with other Member States from being crossed unlawfully.

62 Thus, in the case of family members of a Union citizen who are not nationals of a Member State and who seek to enter the United Kingdom in reliance upon a right of entry provided for by Directive 2004/38, verification, for the purposes of Article 1 of Protocol No 20, consists, in particular, in checking whether the person concerned is in possession of the documents prescribed in Article 5 of that directive. In this regard, even though the Court has held that residence permits issued on the basis of EU law, by nature, declare and do not create rights (judgments in Dias, EU:C498, paragraph 49, and O. and B., EU:C135, paragraph 60), the fact remains that, as has been established in paragraph 53 of the present judgment, the 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.

63 In accordance with its objective of preventing borders from being crossed unlawfully, verification, for the purposes of Article 1 of Protocol No 20, may include examination of the authenticity of those documents and of the correctness of the data appearing on them as well as examination of concrete evidence that justifies the conclusion that there is an abuse of rights or fraud.

That is what the court said about the Frontier protocol.

[rosebead]

Yes the principle behind McCarthy is the UK should not demand an EEA FP for entry but when there is a RC available. I personally felt the CJEU made it clear that the UK cannot use the Frontier Protocol to justify not accepting RCs for entry:

64 It follows that Article 1 of Protocol No 20 authorises the United Kingdom to verify whether a person seeking to enter its territory in fact fulfils the conditions for entry, including those provided for by EU law. On the other hand, it does not permit the United Kingdom to determine the conditions for entry of persons who have a right of entry under EU law and, in particular, to impose upon them extra conditions for entry or conditions other than those provided for by EU law.

65 This is precisely the case here. By requiring an EEA family permit to be obtained in advance, the national legislation at issue in the main proceedings prescribes, for family members of a Union citizen who are not nationals of a Member State and who are in possession of a valid residence card issued under Article 10 of Directive 2004/38, a condition for entry which is additional to the conditions for entry provided for in Article 5 of the directive, and not simply verification of those conditions ‘at frontiers’.

From my interpretation of the above, RC holders are in fact "persons who have a right of entry under EU law", because that phrase refers to RC holders in paragraph 65. So, I take from that to mean that RC holders establish a right of entry just by holding a RC. Plus from my reading of the above, the UK cannot justify using the Frontier Protocol to impose extra conditions on the holder's entry outside of the remit of Article 5, although they can use the Protocol to check whether there is a genuine RC and whether the holder and his EEA relative are actually present which is what I understood by "verification of those conditions [in Article 5]". So it follows from that, to me anyway, that the UK cannot force a RC holder to undergo any further checks like proving that they are in a durable relationship, especially as mentioned by acme4242 a RC in effect already proves they have that relationship.

Plus I concur with 357mag, the residence card is in principle more than in effect a visa; it also signifies that the family is already resident within the EEA. Thus in the spirit of free movement, it seems wrong that a family member with RC cannot travel freely with his EEA relative throughout the EEA territory. Recital 8 of the Preamble of the Directive seems to support this idea:

(8) With a view to facilitating the free movement of family members who are not nationals of a Member State, those who have already obtained a residence card should be exempted from the requirement to obtain an entry visa ...

[Obie]

I wish I could agree with you.

The directive does not give automatic right of entry and residence to OFM/Extended family members. It is subject to national legislation. Therefore their position is not that straight cut.

I accept that in the case of Family Members, there is force in your argument.

[rosebead]

The beneficiaries of the Directive are however OFMs once it has been accepted by their host State. Since OFMs are beneficiaries of the Directive, shouldn't they then also be able to "benefit" from the privilege of visa-free travel that the Directive bestows with Article 10 RCs?

[clnsen]

dear community,

I am german, my wife is non-eu national but has a german residence permit ( AUFENTHALTSTITEL ).

We want to travel to/trough london ( with stopover ). Do we need a VISA for my wife ?

We want to travel from Frankfurt to London with British Airways.

[wegiwegi]

We want to travel to/trough london ( with stopover ). Do we need a VISA for my wife ?

We want to travel from Frankfurt to London with British Airways.

From the 6th of April, RCs from EU countries should be able to travel without visa in Europe, you should contact BA and ask them, they should be well aware now of the requirements

[gjm]

Not strictly speaking correct

The ECJ judgement referred to family members holding residence cards issued under article 10 of the free movement regulations.

This normally applies where the EEA national is living outside his own country and exercising treaty rights elsewhere.

The spouse of a German living in Germany is unlikely to have an article 10 card so would normally need a family permit to get on a plane to the UK