Court of Justice Rules on UK EEA Family Permit Provisions

The Court of Justice of the European Union has recently given its ruling in a case that questioned the UK’s EEA family permit provisions.

The case involved Sean Ambrose McCarthy, who has dual British and Irish nationality, and his wife, Helena Patricia McCarthy Rodriguez, who is a Colombian national. The couple have a daughter and have been resident since 2010 in Spain where they have a house.

They also own a house in the United Kingdom and travel there regularly. Ms McCarthy Rodriguez holds a ‘residence card of a family member of a Union citizen’ (‘residence card’) issued by the Spanish authorities.

UK immigration provisions say that in order to be able to travel to the UK, holders of such a card must apply for an entry permit (‘EEA family permit’), which is valid for six months.

This family permit can be renewed provided that its holder goes in person to a British diplomatic mission abroad and fills in a form setting out details relating to his or her finances and employment.

The family believed that these provisions infringed their rights of free movement, and so in 2012 they brought an action before the High Court in England and Wales. The High Court then asked the Court of Justice whether third-country nationals may be required, generally, to obtain a visa in order to be able to enter UK territory when they already hold a residence card.

The Court of Justice has now ruled that where third-country nationals hold a ‘residence card of a family member of a Union citizen’, the UK cannot make their right of entry subject to the requirement that they must first obtain a visa.

It says that 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.

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