Important ruling affecting EEA family permit applications

Published: 28/11/2008

A recent update on the July 2008 Metock parliamentary ruling is widely considered to be a potential minefield for some areas of the UK marriage visa application process. The Metock case refers to the ruling earlier this year which saw the Irish Government overruled by the Grand Chamber of the European Court of Justice (ECJ), following its findings on visa requirements for third country national spouses of EEA nationals and the Free Movement Directive.

The original decision related to four non-EEA nationals, also known as third country nationals, who had unsuccessfully applied for asylum in Ireland. They each then married citizens from other EEA states that were exercising their free movement rights in Ireland. Under Irish regulations, the Irish Government refused the four residence cards because ‘…the regulations state that the rights under the Directive do not apply to a family member unless the family member is lawfully resident in another Member State…’

The clash of opinions centres around the unlawful ruling of the previous assumption that national requirements for a third country national spouse of an EEA citizen needed to have been lawfully resident in another Member State prior to benefiting from the provisions of the Free Movement Directive. The ECJ found that national legislation cannot impose this, as the third country national spouse of an EEA citizen is exercising his or her free movement rights, whereas it is was previously considered a necessity.

The second aspect of the difference of opinion regards the location and timing of the actual marriage and the manner in which the third country national entered the host member state. In the Metock case, the ECJ stated that ‘…it is immaterial when and where their marriage took pace and how the third country national entered the host Member State.’

The ECJ explained its reasoning, stating that ‘the refusal of the host Member State to grant rights of entry and residence to the family members of a Union citizen is such as to discourage that citizen from moving to or residing in that Member State, even if his family members are not already unlawfully resident in the territory of another Member State.”

Thus, the key change brought about by the Metock case is that a third country spouse of an EEA citizen does not necessarily have to be lawfully resident in a Member State when he or she moves to another Member State in the company of an EEA citizen to be able to benefit from the rights of entry and the rights of the Free Movement Directive.

The potential problems with this latest ruling have been highlighted by the Asylum and Immigration Tribunal in the UK that is currently considering two cases in light of the Metock ruling. The UK Border Agency is also amending areas of its guidance notes in view of the ruling, although this is yet to be published. Details will be added to the Marriagevisahelp.com website content as soon as an update is made by the Agency.

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