Personal Immigration

Court of Justice Gives Opinion on Entry Visa Requirements

An Advocate General of the Court of Justice of the European Union has recently given his opinion in a case (Case C‑202/13) concerning the requirement for a person to obtain a visa to enter a Member State when they already hold a residence card issued by another Member State.

An EU directive provides that possession of a valid residence card exempts third-country nationals who are members of the family of an EU citizen, from having to obtain an entry visa. However, Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure must be proportionate and subject to the procedural safeguards provided.

The case in question concerned Sean McCarthy, who has dual British and Irish nationality. He is married to a Colombian national with whom he has a daughter. Since 2010 the family has lived in Spain, where they own a house. Mr and Ms McCarthy also own a house in the United Kingdom, to which they regularly travel.

Helena McCarthy is the holder of an EU family member’s residence card (‘residence card’) issued by the Spanish authorities. Under the UK provisions on immigration, in order to be able to travel to the United Kingdom, holders of those cards must apply for an entry permit (‘the EEA family permit’), valid for six months. This family permit may be renewed, provided that the holder personally attends a United Kingdom diplomatic mission abroad and fills in a form containing details of the applicant’s finances and employment.

The McCarthy family thought that these requirements were in breach of their rights to freedom of movement, and in 2012 they brought proceedings before the High Court in England. This court referred the case on to the Court of Justice, asking whether third-country nationals may, generally, be obliged to obtain a visa in order to be allowed to enter the territory of the United Kingdom when they already have a residence card.

Advocate General Maciej Szpunar has now given his opinion, which is in favour of the McCarthys. He said that a Member State may not make a third-country national’s right of entry subject to the prior obtaining of a visa, when he already holds a ‘Residence card of a family member of a Union citizen’ issued by another Member State.

However, it is important to point out that the Advocate General’s Opinion is not binding on the Court of Justice. The Judges of the Court are now beginning their deliberations in this case and will give their judgment at a later date.

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