European Court Rules UK Cannot Block Non-EU Family Members

The European Court of Justice (ECJ) has ruled that the UK cannot demand that family members of EU citizens resident in the EU must have a special visa to come to the UK.

Judges in Luxembourg ruled on the case of Spain-based Sean McCarthy, a dual British and Irish national, and his Colombian wife.

Patricia McCarthy Rodriguez argued she should be allowed to travel to the UK with her British family without having to obtain a UK visa because she holds an EU residence card issued by the Spanish government.

Under UK immigration rules, Mrs McCarthy Rodriguez has been required to obtain a family permit visa, valid for six months, if she has wanted to travel to the UK.

However, the ECJ decided Mrs McCarthy Rodriguez’s Spanish residence card entitled her to travel to the UK without first obtaining a UK visa in Spain.

The UK government argues that because it views the system of residence permits in some EU countries as open to abuse, it is entitled to impose a blanket entry requirement.

But, the ECJ, which delivers guidance for UK courts on how they must interpret EU law, ruled that concerns over abuse of rights and fraud did not justify the general catch-all measures.

The McCarthy ruling only covers cases where the partner from the EU – in this case Mr McCarthy – has exercised their right to free movement within the EU. If a person still lives in their home country, their spouse is not entitled to free movement.

The case will now return to the High Court.

This news alert was prepared by Dearson Winyard International.