European Court of Justice rules on EEA family permit scheme

Published: 19/12/2014

In a case centering on a family with very complex nationality issues, the European Court of Justice has recently ruled that the UK requirement that non-EU family members of EEA nationals need a travel permit to enter the country is unlawful. The family consists of a father with dual Irish and British nationality; two British children and a Columbian mother. The family claimed that the mother should not be required to obtain a UK entry visa as she holds an EU Residence Card which has been issued by the Spanish government. The basis upon which the court came to its decision is that freedom of movement – a basic human right – does not allow measures which prevent families from being together.

Commenting on the case and the possibilities which may result from it, Conservative MP Dominic Grieve has pointed out that the main reason for the rule is to prevent security lapses, as not all EU countries are as rigorous when handing out residence cards. Therefore it may be possible for some people to pose a risk to the UK should they be able to enter without further restrictions, although there is no suggestion that this is the case in the test subjects. The judges, in making their ruling, did point out that it will not be unlawful for a person to be rejected for entry to the UK if the UKVI officers detect fraud or other reasons that they should not be allowed in.

It is perhaps inevitable that there has been much criticism of this ruling from the British government, which had recently announced a new, tougher stance on immigration. Although some power is still left to UK Visas and Immigration to refuse admission, the ruling does in effect open Britain’s borders to millions of people who had previously been excluded due to lack of appropriate documentation. This ruling only countermands the requirement for a visitor’s visa for spouses and partners of UK citizens who currently live elsewhere in the EU; residence in the UK on a permanent basis is still regulated by UK Visas and Immigration and is subject to current rules. Even so, the fear is that some people will use what some are considering a loophole to enter the country fraudulently and as UK Visas and Immigration is already struggling with increasing numbers of applications and very large backlogs, adding the numbers involved in this recent ruling to their workload will mean inevitably that some people who should not be entering the country will be able to do so. It will also mean that those who are already caught in a backlog and have been waiting for many months for a definitive answer may well have an even longer wait. The case is being referred to the Court of Appeal, with no date for a ruling as yet available.

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