McCarthy ruling

The McCarthy judgment was delivered yesterday by the ECJ  facilitating entry of Article 10 Residence Card holders.

The judgment is great news as demonstrates UK's breaking the law is not being overlooked by the authorities despite the anti-migrant sentiment permeating British society, worsened by the media through for example the very irresponsible claims that this ruling is going to radically ease the process of settling in the UK.  It's not.  I'd go as far as to say it is going to make no real difference and certainly not lead to an increase in numbers of people settling here.

Additionally, we still need to wait for the UK courts to implement this ruling - while it is expected they will abide by the ECJ decision, until it is actually implemented it isn't in force.  However, if assumptions are realised and the ECJ determination is translated in its entirety into UK regulations, what does this mean?


It means for entry into UK (or indeed other Member States) by non-EEA family members who hold a Residence Card issued by any Member State, this RC and a passport, is all that is required as long as the trip involves accompanying or joining the EEA citizen-sponsor.  That is, there can be no additional requirements in relation to obtaining any other visa or permit, where the Article 10 Residence Card is genuine, for entry purposes only.  

This ruling is of most benefit to those holding a Residence Card and who frequently visit other member states for a short duration; they will no longer need to go through a Family Permit application which although free is cumbersome, requiring submission of biometric data such as fingerprints, or an expensive visa application in place of a Family Permit (though I see no advantage to applying for a visa over a Family Permit where latter is permissible).

For those who may be coming to the UK to settle as British citizens with non-EEA family under the Surinder Singh route - as I suspect most readers of this post are, you are likely to face a choice.  To apply or not apply, for a UK Family Permit. The decision can only really be yours, though there are pros and cons which each family will need to weigh up themselves.  Bear in mind this post is based on application forms and processes at the moment, which may well be different at the time you need to make this decision.

Why apply for a Family Permit?

1) It is a good trial run for the subsequent UK Residence Card application.  If the Home Office approve a FP application, it's unlikely they will then refuse a RC, given the wording in the current RC application form.

2) If you are refused a UK FP, then you can do something about the issues HO has before you leave your job and home in the other country in order to return to the UK.  The last thing you want once in the UK is to find your time in the other member state was too short for Surinder Singh purposes as accepted by the UK authorities.

Why not apply for a Family Permit?

1) Fewer dealings with the UK authorities

2)  The UK FP application form is quite intrusive, asking questions which are not even on the RC application, and some to which answers do not have to be provided according to EEA regulations.  Whilst some are comfortable answering these questions, and others confident in putting 'not applicable' under those which are not relevant (e.g. what was the purpose of your move to Ireland?), others may asnwer the questions and the responses could be used against you.

The UK authorities can ask whatever they want to - you're not under obligation to answer all these questions.  But it's a matter of knowing which questions you must answer and which are not relevant.

Which route you opt for depends on your circumstances and confidence. 

If the British citizen has lived and worked in (say) Spain for 12 months, earning a decent salary, they may feel confident that the UK RC process will not bring up any issues for their non-EEA family members holding a Spanish RC.

However someone who has been living and working in Spain for 3 months, earning minimum wage, could well be less confident and therefore may prefer to apply for a UK FP for their family. 

McCarthy judgment does not impact Centre of Life - although infringement proceedings against the UK have begun on its COL requirement, COL, wrongly in my view, is still implemented by the HO

This ruling also does not impact the £18,600 income requirement which is the key subject of the MM case.  The income requirement is entirely related to UK's immigration rules whilst McCarthy relates to UK's interpretation of European regulations.

UPDATE: On 20 January, UKVI responded to a member query on their view of the McCarthy ruling. This can be read here

UPDATE 19/03/15: 
Home Office in its response to our FOI request stated that it will apply the McCarthy judgement from 6th April 2015.  Clarification on the situation for Brits is here.

Related documents:

Official press release 

Full judgment

Blog post by Steve Peers, Professor of EU Law & Human Rights Law, University of Essex
Home Office response on 20 January 2015