Friday, September 22, 2023
Courthouse News Service
Friday, September 22, 2023 | Back issues
Courthouse News Service Courthouse News Service

UK’s Legal-Resident Visa Rule Takes a Beating

(CN) - British citizen Sean McCarthy lives in Spain most of the year, but travels back to the U.K. frequently with his wife, a Colombian national and legal EU resident.

Unfortunately for the McCarthys, British immigration law requires holders of a family member residency card - like McCarthy's wife - to apply for a visa every six months to enter the U.K. To obtain the visa, the McCarthys must travel six hours by car from their home in Marbella to the British consulate in Madrid - and the train isn't much faster.

The McCarthys sued the British government over the inconvenience, pointing out that the draconian requirements infringed their constitutional right to free movement. The U.K administrative court asked the European Court of Justice whether the visa requirement complied with EU law.

In an opinion issued Thursday, the Luxembourg-based high court ruled - predictably - that it does not. Because McCarthy is an EU citizen, he has the right to move with his family to any other member state and travel throughout Europe with his family without added hassles.

"The right of all EU citizens to move and reside freely within the territory of the member states should, if it is to be exercised under objective conditions of dignity, be also granted to their family members, irrespective of nationality," the court wrote in a 10-page opinion. "Whilst the provisions of EU law does not confer any autonomous right on family members of an EU citizen who are not nationals of a member state, any rights conferred on them by provisions of EU law on Union citizenship are rights derived from the exercise by an EU citizen of his freedom of movement."

Even with cases of abuse and fraud - which the British government argued runs rampant among third-country nationals who enter the U.K. - the court said the blanket approach used by immigration authorities doesn't mesh with EU law.

"Member states may adopt the necessary measures to refuse, terminate or withdraw any right conferred by that directive in the case of abuse of rights or fraud, such as marriages of convenience; however, any such measure must be proportionate and subject to the procedural safeguards provided for in the directive," the court wrote. "Measures adopted by the national authorities in order to refuse, terminate or withdraw a right conferred by that directive must be based on an individual examination of the particular case."

And even though Britain is not part of the Schengen area - the borderless portion of the EU - its customs officials may only check the authenticity of the McCarthy family's documents and require nothing else of them, the court concluded.

Categories / Uncategorized

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.