Last last year the Court of Justice of the European Union handed down judgment in the case of McCarthy v United Kingdom C-202/13. In some ways it is a very straightforward case: the UK is not permitted to require residence card holding family members of EEA nationals to apply for yet further documentation in the form of an entry permit. This should have been uncontroversial as it is very clear on the face of EU law. For example, Article 5 of the Citizens Directive 2004/38/EC states that:
For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.
Even the UK’s own Immigration (EEA) Regulations 2006 appear to provide for entry without a family permit. Paragraph 11 on the right of entry for non EEA family members seems initially to require one but if one carries on reading it eventually says:
Before an immigration officer refuses admission to the United Kingdom to a person under this regulation because the person does not produce on arrival a document mentioned in paragraph (1) or (2), the immigration officer must give the person every reasonable opportunity to obtain the document or have it brought to him within a reasonable period of time or to prove by other means that he is … a family member of an EEA national with a right to accompany that national or join him in the United Kingdom…
The problem lay not so much as in the Immigration (EEA) Regulations 2006 as in the carrier sanctions imposed on airlines and others who have to check immigration documents before allowing passengers on board. The guidance given to carriers was being interpreted by at least some airlines in such a way that they were refusing to carry non EEA national family members who did not possess a UK-issued family permit. This operated as a bar to entry without a permit.
The UK accepted that this was so but attempted to justify the rules on the grounds that they were necessary for the prevention of abuse of treaty rights. This was a limp argument with no prospect of succeeding and the Court of Justice duly gave it short shrift. There has to be an individual examination of a particular case to justify a measure to combat abuse of treaty rights or fraud.
The outcome of McCarthy will be welcome news for the families that have been put to the inconvenience of obtaining family permits in order to exercise free movement rights. It presents problems for the Home Office, which has increased the inconvenience of applying for family permits by closing application centres and increasing the information that is harvested but has been burying its head in the sand about the fact that the permits are in truth voluntary and optional.
The outcome is that the UK will need to ensure that there is no bar to entry to the UK for non EEA national family members in possession of a residence card. Arguably, the Immigration (EEA) Regulations 2006 do not need amending, but the carrier sanctions regime most certainly does.
BritCits have ascertained that the UK is indeed currently reviewing the situation. Unsurprisingly, the UK is taking a very narrow view, as this extract from their correspondence shows:
The UK is currently considering the implications of this judgment and the case will now return to the High Court for a final determination.
It is important to note that the findings of the CJEU are limited to cases where:
• the EEA national has resided in a Member State other than that of which they are a national, and
• the EEA national has exercised Treaty rights in that Member State, and
• their non-EEA family member has been issued with a residence card under the terms of the Free Movement Directive by that ‘host’ Member State and
• the non-EEA family member is travelling with, or to join, their EEA national relative.
The judgment does not affect the requirement for non-EEA nationals who are family members of an EEA national but who have never been issued with a residence card by another Member State under the Free Movement Directive to apply for an EEA family permit before travelling to the UK.
Nor does it affect the requirement for non-EEA nationals who are family members of an EEA national who have been issued residence documentation in another Member State under that Member States domestic law to apply for an EEA family permit. For example, if an Australian national lives with their German spouse in Germany and has been issued with a residence permit by the German authorities, the Australian national should obtain an EEA Family Permit for travel to the UK. This is because the residence document has been issued under German domestic law, not under the Free Movement Directive.
The judgment also does not affect the position of a non-EEA national who holds a residence card but who is not travelling with, or to join, their EEA relative. In that case the non-EEA national should apply for the relevant entry clearance.
BritCits suggest that British citizens intending to return to the UK with a non EEA family member might consider using the family permit application as a ‘dry run’. This is sensible advice, particularly for those exercising Surinder Singh rights and unsure whether they yet qualify. Arriving at the border and being refused may involve inconvenience, stress and even detention, whereas being in possession of a family permit will more or less guarantee entry. If you haven’t already, you can also see a very good write-up by Steve Peers over at his EU Law Analysis site.
Here in the UK, the McCarthy judgment contradicts the earlier tribunal case of CO (EEA Regulations: family permit) Nigeria  UKAIT 00070, in which on slightly different facts Mr Ockelton held that regulation 12 was entirely of the UK’s invention and did not in any way engage EU law. The Court of Justice disagrees; one struggles to think of a case where the tribunal has managed to get EU law right. In CO the tribunal ignored the real world as experienced by actual migrants and immigration officials. The carrier sanctions regime operates as a de facto bar to admission without a permit. Regrettably, it has taken seven years for the case to be overturned.
For more detail on Surinder Singh, including analysis of Home Office reasons for refusal, see the full ebook:
Comprehensive examination of law, policy and practice around the "Surinder Singh route" including hints and tips on avoiding problems. Foreword by Sonel Mehta of BritCits.