The European Court of Justice has declared that a British-Irish citizen is permitted to bring his Colombian wife to the UK from their home in Spain sans her requirement of a travel visa.

The EU’s supreme court ruled that UK government could no longer demand entry visas in advance for non-EU citizens who are family relatives of EU citizens and hold residence rights in other EU states.

The ruling was made following the case of Colombian woman, Helena Patricia McCarthy Rodriguez who is married to Sean McCarthy, a man of British and Irish citizenship.

The McCarthy’s two children are both British citizens.

The court stated that EU rules disallowed the government from insisting on advance application for an entry visa when Helena McCarthy Rodriguez relocated from Spain to Britain.

Mrs McCarthy maintained that she has the right to travel freely to the UK with her British family without needing to obtain a visa as she holds an EU Residence Card issued by the Spanish government.

Until now, the British government previously required Mrs McCarthy to obtain a “family permit” visa every six months if she wished to travel to the UK.

Every time Mrs McCarthy wishes to travel to the UK, she must go to Madrid’s British Embassy from Marbella to be fingerprinted and fill out detailed application forms. Her lawyers stated that the process takes several weeks, even months.

Under the European Union’s freedom of movement rules, the McCarthys challenged the requirements of the British government.

The ECJ in Luxembourg, which interprets EU law, ruled in the McCarthys’ favour. Following an objective of general abuse prevention, the court declared that freedom of movement rules do not sanction measures that prevent family members from entering a member state without a visa.

The UK instated the visa regime due to its concerns about the residence cards of other EU member states, as some reportedly fall short of international security standards and could be exploited to abuse EU freedom of movement rules.

However, even when authorities do not consider that an EU citizen’s family member may be involved in an abuse of rights or fraud, legislation requires the obtainment of an entry permit before entry into the UK.

Court of Justice judges declared that just because a member state might be faced with a large volume of cases of fraud or rights abuse committed by non-EU nationals – as claimed by the UK – the fact cannot justify a general agenda to reject family members of EU citizens.

The judges stated that UK government has the power to assess documentation for signs of abuse or fraud at the border. If fraud is proven, they are able to exclude an individual.

But the judges added that the UK 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.”

A UK government spokesman announced: “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.”

Britain is bound by the ruling of the EU Court.

From Alcantara Consultancy Services:  this opens up another avenue to explore for families of EEA nationals who find it difficult to obtain EEA Residence Cards in the United Kingdom.

EUROPE: EU Court of Justice deems British visa rule unlawful
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