The European Court of Justice said last week that the United Kingdom cannot prevent people from non-EU countries, who hold a valid EU residence card based on family membership, from entering Britain without a visa. The ruling was given in a case involving a British-Irish national and his Columbian wife, who have been living in Spain since 2010.
The couple – Sean McCarthy and Helena Rodriguez – also have a house in the UK and travel there frequently. Though Helena held an EU residence card, she had to apply for an entry permit (valid only for six months) every time she had to visit the UK.
Dissatisfied with the UK visa requirements, the couple felt that it infringed on their right to free movement within the EU and thus took the matter to British High Court in 2012. The British court referred the case to the European Court of Justice, asking them whether as per Directive 2004/381 and Protocol No 20, non-EU nationals holding an EU residence card should be required to apply for a visa in order to enter the UK.
The EU court ruled that in cases where third-country nationals hold a “residence card of a family member of a Union citizen”, the UK cannot impose a visa requirement in order to let them into the country.
“The directive on free movement of Union citizens does not allow measures which, in pursuit of an objective of general prevention, preclude family members from entering the territory of a member state without a visa,” the court statement read.
The European Court of Justice has now confirmed that Directive 2004/38 applies to the McCarthy couple. “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 subparagraph of Article 5(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,” the court said.
The court further said that certain countries in the EU may decide to refuse entry to a person if they suspected fraud or any other abuse, but this needed to be decided on a case by case basis, and a blanket visa requirement on a particular group of people was not needed. The court said that the UK had full rights however to check the authenticity of the documentation submitted.
“On the other hand, it is not permitted to determine the conditions for entry of persons who have a right of entry under EU law or to impose upon them extra conditions for entry or conditions other than those provided for by EU law,” read the court statement.