"I have never welcomed the weakening of family ties by politics or pressure" - Nelson Mandela.
"He who travels for love finds a thousand miles no longer than one" - Japanese proverb.
"Everyone has the right to respect for his private and family life, his home and his correspondence." - Article 8 of the European Convention on Human Rights.
"When people's love is divided by law, it is the law that needs to change". -
David Cameron.

Friday 19 December 2014

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


  1. i am 28 years married holding of residence card of family member of EU citizen issued under article 10 through my Portuguese father,
    can i accompany my father to UK for visit without visa?

    1. Yes, where travelling with or to join your EU sponsor, and holding an art 10 RC, McCarthy ruling confirms you don't also need a visa or FP.

  2. The United Kingdom's implementation of Directive 2004/38/EC as The Immigration (European Economic Area) Regulations 2006, which latest amendments will come into force next 6th April 2015 says in section 2. (1) (where the definition of a 'EEA national' is given'): "“EEA national” means a national of an EEA State who is not also a British citizen". The European Court of Justice, in its latest ruling of 18th December 2014 says "Where third-country nationals hold a ‘residence card of a family member of a EU citizen’, the United Kingdom cannot make their right of entry subject to the requirement that they must first obtain a visa."" Hence, United Kingdom's implementation of this new EU judgement to come into force next 6th April 2015, still considers anyone with a valid British Citizenship as a non-qualifying EEA national. This means nothing has changed! I wonder how this new UK implementation will be even useful for Mr McCarthy, since he is also a British citizenship, beside being Irish.

    Let's end this abuse together once and for all. Let's request the ECJ intervention.

    1. We understand there is a hearing in the High Court on 20th May on post-McCarthy implementation.

  3. Let me explain: It is true the implementation in general lines considers a British citizens not to be a EEA national, however under article 9 it does: Family members of British national who meet the requirements of Regulation 9 are treated as family member of EEA nationals for the purpose of the EEA Regulations. Thanks to McCarthy ruling last December 2014, a valid, genuine Article 10 (or Article 20) residence card allows the non-EEA national family member of an EEA national to travel to the UK without the requirement to obtain an EEA family permit. This means clearly that non-EEA nationals family member of British citizens who have exercised treaty right in EU cannot be asked to show a EEA Family permit any longer.The non-EEA national family of the British Citizen should travel with documents listed in Article 9 in case Border Control Officer likes to check the British Citizen fulfills Article 9 and therefore is to be considered a EEA National.

  4. I think they have made it very unclear and again UK has ignored an ECJ ruling. The fact is that UK is creating another class of EEA-national (British Nationals) who can only qualify as EEA-National if they fulfill unilateral regulations set by the UK (Article 9) and not by EU Regulation (Article 10). A EU Citizen (EEA national) exercising treaty rights in another EEA country is in fact exercising the rights granted by Surinder Singh ruling, however the UK, in order to discriminate British Citizens and their families, created this article 9 which demands additional requirements on top of exercising treaty rights. It is perhaps one of the most abusive regulations a country in plain democracy has ever issued against its own people. It is shocking this has not ended yet in the International Court of Human Rights.

  5. Answer to FOI request is delayed according to https://www.whatdotheyknow.com/request/mccarthy_ruling_2#outgoing-437777

    No surprise! However, they should answer very clearly that from 6th April 2015 UKBA is not requesting EEA Family permits to non-EEA nationals family of British Citizens who hold EEA residence cards. The European Court of Justice ruled that the rights granted by Article 10 are for everyone who is in possession of such residence cards and not just a sub-group of non-EEA nationals.

    1. We took this to the ICO which has ordered HO to respond within 35 days.

  6. Just wanted to tell anyone on here, Ryanair on Friday 23rd October 2015 refused boarding to my wife. She has a Residence Card under Article 10 etc etc. She fully meets the requirements to enter the UK with me without a visa in her passport. She should just show her Residence Card. But Ryanair felt that EEA laws don't apply to their customers so they refused her. We explained EEA to them and very arrogantly they told me it doesn't apply to my wife(very clearly it does!!!), and that UK Immigration would fine Ryanair for allowing someone on board without the Family Permit Visa. Its a ridiculous situation. We are there quoting EEA regulation and laws to them at the boarding gate, and the Ryanair Immigration officer is just flat out, no your wrong. Really Ryanair? Come on, any member of the general public can get access to these laws. Leaves me speechless. I'm currently waiting for their response from their HQ in Ireland, but it might be I need to take them to court.

    1. Would you mind sharing the outcome of this unfortunate incident? Did you ever receive feedback or compensation from Ryan Air?

  7. Would you mind sharing the outcome of this unfortunate experience involving Ryan Air's lack of acknowledgement of the McCarthy case as applied to Directive 2004/38/EC. Did you receive any feedback or compensation from Ryan Air?