Thursday, December 18, 2014

No more Family Permit visas for non-EU family members, European Court Judges rule against UK Home Office

European Union judges at the European Court of Justice (ECJ) have ruled the UK Home Office cannot prevent non-EU family members entering the country without a travel permit as long as they are settled in another EU country.

The Luxembourg based ECJ ruling means that EU citizens or EEA nationals will be able to bring their non-EU national family members into the UK without applying for a Family Permit visa.

The UK government has effectively been ordered by European judges to change its own Immigration Rules by European Union judges following the ECJ decision on a controversial case allowing Britons to enter the UK with their foreign relatives.

The controversial case involves a Spain-based dual British and Irish national Sean McCarthy and his Colombian wife. The couple argued she should be able to travel to the UK to see her British family without applying for a visa or travel permit.

McCarthy, lives and works in Spain with his Colombian wife Patricia McCarthy Rodriguez, lodged a legal action against the Home Office. The couple argued that Rodriguez should be free to travel to the UK with her British family without having to obtain a UK visa on the basis that she holds an EU residence card issued by the Spanish government.

The Home Office had forced her to obtain a "family permit" visa every six months if she wanted to enter UK borders.

But the ECJ ruled in the McCarthys' favour stating that freedom of movement rules do not allow measures which prevent family members from entering a member state without a visa.

The court ruling stated: "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."

The McCarthy’s two young children are both British citizens, yet their mother had to travel from the family's home in Marbella to the British Embassy in Madrid to be fingerprinted and complete detailed application forms every time she wanted to travel to the UK. Her lawyers claimed that the expensive and cumbersome process took several weeks to complete.

The Home Office had brought in its own visa regime due to concerns that other EU member states' residence cards fell short of international security standards and could lead to an abuse of EU freedom of movement rules.

A UK Government spokesman said: "The UK is disappointed with the judgment in this case.
"It is right to tackle fraud and the abuse of free movement rights.

"As the case is still to return to the UK's High Court for a final judgment, it would be inappropriate to comment further at this time."

Free movement rules have been at loggerheads with UK Immigration laws since the EU expansion into Eastern Europe when millions of Poles, Romanians and Lithuanians have settled in the UK.

However, Britain has imposed 7 year restrictions on newest EU member citizens of Croatia from working in the UK without a work permit or yellow card.

In a recent speech, the UK Prime Minister David Cameron, said he would introduce tough new laws to restrict the wave of EU citizens entering Britain, as well as ending EU migrants right to claim welfare benefits for the first four years after arriving in the country.

There are other anomalies in the UK and EEA rules which work to the disadvantage British citizens wishing to bring their spouse or unmarried partner into the UK. Unlike EEA nationals or Britons living within the EEA their partners must pass the Home Office tests on English language and minimum income requirements, which often force families to live apart. 

The right wing UKIP party condemned the latest snub to Britain saying: "The ECJ, like every other EU institution, is determined that Britain will never take back control of its borders."
MEP and spokesman on immigration Steven Woolfe said:

"Britain will be forced to recognise residence permits issued by any EU member state, even though the system of permits is wide open to abuse and fraud.

"This ruling extends the so-called 'right to free movement' to millions of people from anywhere in the world who don't have citizenship of any country of the EU.

"This is yet more proof that Britain can never take back control of its borders as long as it remains in the European Union.”

Speaking to the BBC, Mr McCarthy said he was "overjoyed" by the ruling:

"As a British national I had expected my country to play by the rules, and now the court has finally forced the UK to respect British and European citizens' free movement rights."

There are many non-EU nationals, such as Filipino care workers and domestics, who have been living in EU countries like Spain, Italy and Greece for over 10 years as residents, but are unfairly denied full citizenship.

In another case this month the court ruled that gay and lesbian asylum seekers must not be asked to prove they are homosexual in order to stay in Britain.

Judges ruled that asking refugees detailed questions about their sexual habits in order to establish whether they are at risk of persecution at home is a breach of their fundamental human right to a private life.

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