Brussels, 20/05/2014 (Agence Europe) - A member state may not make a third-country national's right of entry subject to the prior obtaining of a visa, when he/she already holds a residence card of a family member of a Union citizen issued by another member state, argued European Court of Justice judge Maciej Szpunar in an opinion in case C-202/13 on Tuesday 20 May between a Colombian passport-holder and the United Kingdom.
Mr Sean Ambrose McCarthy has dual British and Irish nationality. He is married to a Colombian national with whom he has a daughter. Since 2010, the family has lived in Spain, where they own a house. Mr and Ms McCarthy also own a house in the United Kingdom, to which they regularly travel. Ms Helena Patricia McCarthy is the holder of an EU family member's residence card (“residence card”) issued by the Spanish authorities. Under UK provisions on immigration, in order to be able to travel to the United Kingdom, holders of such cards must apply for an entry permit (“the EEA family permit”), valid for six months. This family permit may be renewed, provided that the holder personally attends a United Kingdom diplomatic mission abroad and fills in a form containing details of the applicant's finances and employment.
Does this UK requirement comply with EU law? No, argued the judge, because it “would be tantamount to permitting it to circumvent the right to freedom of movement and would be contrary to the principle of mutual recognition” under EU Directive 2004/38/EC. Member states' courts are entitled to “adopt the necessary measures to refuse, terminate or withdraw any right conferred by this directive in the case of abuse of rights or fraud, such as marriages of convenience”, but “a general presumption of fraud is not sufficient to justify a measure that compromises the objectives of the TFEU”. The UK is entitled under Protocol 20 to carry out border controls, but that “does not entitle the UK to refuse unilaterally to allow EU citizens and members of their families with a residence card to enter its territory, by requiring generally that they obtain and present at its borders an additional document for which EU law makes no provision”, unless the system has been abused. (JK)