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

Daniel & Rachel - Featured Family

"Home Office treats self-employment income like it’s not legitimate, requiring documentation that doesn’t even exist!”

Daniel is a British citizen.  He met Rachel, from the USA in 2009 online. "He had me at 'bats in Honduras," Rachel will say, if asked how their romance started.  

Daniel owns and operates his own cleaning business, works at a health-food store as well and does odd-jobs self-employed on the side. Through this effort, he satisfies the income requirement of £18,600 for both the fiancée visa and the subsequent FLR(M) visa to follow, as the partner of a British person. 

They applied for the fiancée visa in 2012, but were horrified to receive a letter telling them that it was denied for reasons that even now remain unclear. They enlisted a solicitor and, upon appeal, the visa was granted with the same documentation that was provided as part of the original application. Thinking their troubles were over, they put the event behind them and were married in April 2013.

In June 2013, the couple applied for FLR(M) visa.  They used the same solicitor as they had for the fiancée visa, effectively repeating the process.  They even used the same accountant to provide evidence of income.  Eager to get on with their lives, they opted to pay the extra fees for Premium service.

It didn't go according to plan. Despite having the right to exercise judgement, the officer interviewing them refused to accept the credentials of the accountant who had prepared their Statement of Income and Taxes because it wasn't "certified".  They were told that they had ten days to have a "proper" accountant review the financials, obtain payslips (including one which had not yet been received or issued!).  They were assured that they still maintained their "priority" status given they had paid for the Premium service.

Frantic, Rachel and Daniel called every accounting firm in the town they live in, searching for someone who would be willing to complete the daunting task of reviewing two years of financials in 10 days.  Thankfully, there was someone benevolent enough to take on the challenge. This certified accountant, upon interviewing was puzzled as to why the officer had rejected their documentation, saying “The way your accountant did this is exactly the same way that any accountant would prepare your documents.  Accountants do not know Immigration law”.  This certified accountant pointed out that even the guidance information for the visa didn't state that they had to be prepared any differently.

Frustrated but grateful the accountant did his best to address the concerns of the officer, they mailed back the requested documentation seven days later. Then the waiting started; they heard nothing, saw nothing, until a month later when a letter arrived through the post, informing them their “outstanding” documentation was received, and that the fiancée visa was effective until a decision was made.

The couple believe the complexity arises because Daniel has three sources of income and UK Home Office does not even flirt with the same rules HMRC does in calculating income.  All of this is made worse by the Home Office treating self-employment income almost like it's not legitimate earnings by requiring documentation that doesn't even exist to prove that it is "real"!

Three months after application, the couple who paid for Premium service have still not heard anything from the Home Office about their application.   

Update:

At the end of October 2013, Daniel and Rachel received a letter from the Home Office.   Despite the fact that they have provided clear evidence to show Daniel earns over £18,600, the Home Office has said their application is on hold indefinitely, because they do not meet the financial requirements of an annual salary of £18,600.  The Home Office was however generous enough to offer Rachel the option of withdrawing her application and losing her application fees.

This couple is now stuck in limbo only because the Home Office does not appear to have staff who can read an Accountant’s Statement of Income. 

They will be working with their solicitor to see how best to proceed with this. Home Office rather than actually reading the documents submitted, thought it easier to put them in the ‘delay’ pile.

Daniel is reasonably confident the courts will stand by their original verdict in regards to the Income Requirement ruling and at least, while their application is on hold the couple gets to remain together as it was an in-country application.  However it’s very frustrating for Rachel to not be able to do anything or go anywhere; to be unable to make any sort of contribution to society or even partake in any activity.

Update 2

Daniel and Rachel were put on hold for not meeting the income requirements according to the Home Office, despite HMRC, Certified Public Accountants and bank statements showing otherwise, pending the result of the MM case. 

Rachel and Daniel grew increasingly worried as the days, weeks, and months passed without any word.  After that awful Court of Appeal judgment on the MM case, the couple was prepared for the worst and had begun the process to re-settle in the USA.

Much to their surprise however, in October 2014, they learned that Rachel's visa had been approved (begging the question why the MM case was used as an excuse to put their application on hold pending the judgment given the lack of relevance).  It couldn't have come at a better time, as the couple are also expecting the birth of their first child.

Wes & Rebecca - Featured Family

“We are not skivers and shirkers.  The rules are excessively harsh to the detriment of family life with Brits abroad forced into exile from their own homes”

Wes is a British citizen.  At the age of 42, in the year 2005, he migrated to USA to marry Rebecca. The primary reason for his moving, rather than Rebecca coming to UK, was for Rebecca’s son.

Through the years, with Rebecca’s son becoming more independent, the couple has spoken of moving to UK.  Wes suffers from ill health in extreme temperatures, however the couple opted not to rush back across the Atlantic, as they always felt they could "go home" when they were ready. 

The Home Office would of course recognise their marriage as legitimate given they had been married for over four years; as Wes & Rebecca have enough income and savings to not require assistance from the state financially they expected there would also not be any issues.  Indeed, any doubts would be covered with Rebecca’s American passport being stamped with “no recourse to public funds”.  The couple understood this.  They understood that even before July 2012, governments have rules and didn’t expect to just waltz in.

However, post July 2012 they find that they cannot move to the UK together, as a married couple - unless we prove we have £62,500 in savings.  Instead, they must endure a lengthy separation while Wes returns here, finds a job earning over £18600 - and works that job for at least six months before they can even file an application for Rebecca to be reunited with her husband. 

Wes is a simple man.  Rebecca is the breadwinner in the family.  She has worked since she was 16 and is the assistant to the Director of a large division (400 employees) of a mental health provider.  Her income in the US and the fact they have never been on benefits in their married life - does not count towards the sponsorship requirements.  Her future earning potential in the UK does not count. 

Wes is what is known as a "carer".  He attends to developmentally delayed individuals in a group day setting.  His work is valuable and necessary to society.  He is good at his job - the individuals love him and he loves them.  But it doesn't pay the equivalent of £18,600.  It wouldn’t pay £18,600 in UK. 

Wes and Rebecca would be returning to a life in Northern Ireland - the odds of Wes getting a job in his field paying over £18,600 are slim to none.  But he could and would get a job as a carer - there are plenty of those jobs out there, even in the UK's current economic climate.  But those jobs, while would pay a liveable wage in Northern Ireland, are insufficient under the new rules.  The new rules don't just "punish" those who are in lower wage professions - they punish people who live outside the south of England - areas with lower wages.  This is not a couple that are "skivers and shirkers". 

Wes suffers from polycystic kidney disease.  Rebecca can’t let him come to UK alone to look for work.  He’s on a special diet which would be difficult to maintain as a "bachelor".  His blood pressure requires constant monitoring.  While Wes cares for others, Rebecca is Wes’s carer, his wife & partner. 

Rebecca has been active on immigration message boards across the internet for eight years now; she advises on three boards and has written two articles for the Transpondia website.  She understands that there are always rules, and they followed those rules to bring Wes to the US.  But the current rules in the UK restrict migration at the expense of families, in an excessively harsh manner – much harsher than the ones in the US, which Rebecca notes the Home Office misrepresented in its consultation report to the public and to Parliament when referring to rules in the US). 

Indeed, in her line of work, she has come across many British citizens who feel "exiled" from their own home.

 

Yana & John - Featured Family

“As British citizens we have fewer rights in Britain than our EU friends and even their non-EU partners.”

Yana is a British citizen and lives in Edinburgh with her British husband and British children.

Yana has a wide and varied circle of international friends - Patrick from Ireland married to Jing from China, Andy a Scot married to Katarina from Poland, José from Spain married to Lisa from Argentina, and Mike from Netherlands married to Olga from Russia. Then there are Yana and John, both Brits. Indeed, Yana recognises, through her friends circle, that what makes Britain great is how multicultural we are. This is what makes our country rich.

They come in all different shapes and sizes; José prefers coffee to tea and Jing goes for rice over potatoes.  But when this group meets up, they have a good time together, comparing stories about families and experiences from around the world. Yana is reminded how small the world is and how we all share the same common wishes and experiences: the desire to give our children the best possible start in life, the longing to be together as a family and the heartache from being apart from your loved ones.

There’s not much to tell Yana apart from her friends –until it comes to UK’s immigration rules. This is where Yana and John, both as British citizens are the odd ones out and therefore disadvantaged.

Yana’s mum is a Russian citizen, living in Russia on her own since Yana’s dad died in a car crash two and a half years ago. Yana has no other siblings to help look after her mum.

After many years of waiting, in 2012, Yana and John were fortunate to be blessed with twin girls. Yana’s ’s mum retired from her job to come to the UK for six months on a visitor visa to help with the babies. Following the difficult years after Yana’s dad’s tragic and unexpected death, it was good to see her mum happy again and engaging with her granddaughters.

Yana is therefore keen to have her mum live with them, with no burden on the State.

Under the previous immigration rules this would have been possible and they were planning to apply for Indefinite Leave to Remain; however, following the introduction of the new immigration rules in July this year, Yana is in total despair as the route has effectively been completely closed off.

The situation is causing severe distress; instead of enjoying motherhood Yana spends most of her day desperately trying to find a solution.

John, Yana, her mum and the twins.

The new rules have set the proof of dependency so high that it is actually impossible to foresee any circumstances whereby a visa would be granted to a parent of a British citizen. Should the sponsor earn a reasonable salary, it’s deemed they can afford to pay for care in the parent’s home country; if the sponsor doesn’t earn a reasonable salary, they can’t prove they can support their parent without recourse to public funds. So with money or without it, elderly parents are blocked from the country.

As these rules apply only to UK citizens, within Yana’s circle of friends they are the only ones affected, because both her and husband are British.

Even a non-EU citizen living in the UK with their EEA or Swiss spouse or civil partner can bring their family members (children, grandchildren, parents, grandparents, brothers, sisters and cousins) into the UK so long as their EU partner can show a family member is dependent on them.  So, for example, a Russian citizen married to a citizen of France, Germany, Poland, Hungary, etc. can bring their Russian mother to live permanently with them in the UK, but Yana and John, as British citizens, are denied that same right, in their own country.

To Yana, the situation in Britain today is terribly reminiscent of the past; in the 1930s her great grandfather’s family were forced off their land, had their property and belongings confiscated by the Bolsheviks, and were exiled to the north of Russia because they were a little bit richer than everybody else in their village.

In 21st-century Britain, Yana is being penalised because she has a mother who is not British, and thus deprived of the right to live comfortably with her family in the country of which she herself is a citizen. Why? Since coming to this country Yana has studied, at her own expense, volunteered with several charities, worked hard and paid taxes; she has never claimed benefits.

So, what has she done to deserve this?

As parents, Yana and John want to stay in their own country and raise their kids to be British, but if they do this, then they are being told by the current government that they must abandon Yana’s mother and that she has to be vegetating before her entry to the UK can even be considered (and even then it would be rejected under the current rules).

It feels very unfair that families in UK are being forced to make such choices, just because they’re British.

Update: Yana and John, their twins and Yana’s mum moved to Ireland, exercising their EU treaty rights to live together as a family.  About a year later the family relocated to the UK, extending their use of treaty rights under what is now known as the ‘Surinder Singh route”.  The family is grateful to the EU for affording them the respect they deserve as a family, which was taken away by the UK government.