Personal Immigration

Do Non-EU Family Members Require a Visa to Enter UK?

The European Court of Justice (ECJ) has decided that non-EU family members of EU Citizens can enter freely into the UK without a visa, if they are settled in another EU member state.

The case was brought to the UK courts by a dual British/Irish national, Mr McCarthy, who was living in Spain with his wife, Ms Rodriguez, who is a Colombian national but holds Spanish permanent residency. Ms Rodriguez was forced to travel from Marbella – where the couple live – to Madrid in order to have fingerprints taken at the British Embassy and complete a visa application every time they wished to visit the UK. Mr McCarthy and Ms Rodriguez also have two sons, both of whom are UK nationals.

The UK High Court then referred the case to the ECJ for their judgment. Mr McCarthy argued that the freedom of movement rule should apply to his wife, allowing her to gain entry to the UK without a visa.

The ECJ held in Mr McCarthy's favour, concluding that 'where a family member of an EU citizen who has exercised his right of freedom of movement is in a situation such as that of Ms McCarthy Rodriguez, that family member 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 EU citizen's member state of origin.'

However, with increasing concerns in the UK regarding the levels of EU immigration, a Government spokesperson stated they were 'disappointed' with the ECJ's judgment, but would make no further comment until after the case had returned to the UK High Court for reconsideration.

That being said, UK Immigration has raised concern about the possible consequences of this decision, arguing that in a number of EU countries, there are insufficient safeguards in place compared to in the UK for attaining residence. A spokesperson for Prime Minister David Cameron said: "The reason why we have a system where we seek visas is because there is not a uniform consistency across other EU countries on the residence cards that are sometimes the issue here, so that's why we think that it is right to be able to apply a system that ensures consistency.

Instead, the Government feels that rather than allowing full access through the free movement principle, a 'family permit' visa for non- EU spouses – such as Ms Rodriguez – would be more appropriate, and would better control the number of non-EU immigrants entering the UK.

The Conservative Party have promised an "in/out" referendum on British membership of the EU in 2017, if they win a majority the General Election later this year.

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