''Judges’ decision in McCarthy case is another setback in campaign by British government to control immigration from EU''

I am British and have lived in Spain for the last 8 years. My wife of 6 years is THAI and has a Spanish Residence card.

Is it actually true that my Thai wife does not now need a visa to enter the UK. Can I just book a flight for both of us as normal on the internet to go to the UK and what documentation do we need at Spain and UK immigration?.

That is what the law says.  I am in a very similar situation to you. 

When I checked not long after the decision, British Airways said they would not let my wife board a flight to UK unless she had a visa  / EU Family Permit.   My more recent emails have been ignored by them.

I have posted elsewhere on forums asking if anyone can confirm their spouse has been allowed to travel but have not had any substantive reply. 

In my case there would be an area of doubt as although I have worked in Spain for 17 years (exercised my rights) I have not been paid. I cannot get a ruling on what constitutes 'work.'  That is,  must it be paid work or work which would 'normally be paid.'

Hello johnzx and thank you for your reply.

I don’t understand what working or getting paid in Spain has to do with the subject. Although I have a habit of misunderstanding things sometimes.

The UK Government has issued a document on this subject which on the face of it seems fairly straight forward, but of course is it true and are they applying it?, and as you say why are the airlines blanking it?.

https://www.gov.uk/government/publications/entering-the-uk-as-the-holder-of-an-article-10-residence-card/entering-the-uk-as-the-holder-of-an-article-10-residence-card

I cannot put my finger on it just now, but I am almost 100% sure that the meaning of 'exercising one rights' mean working, not just living or being retired,.

This message was last edited by johnzx on 09/11/2015.

deleted by johnzx, duplicated post

When I was waiting to board my flight from Alicante to the UK last Saturday the airport staff called the police to question two what looked like Chinese people they only had passports on them l could hear the police asking them for other ID they said that they only had. Passports when asked how they paid for the tickets the reply was by cash  no credit cards/no driving licence/no visa /no other I'd they escorted them from  the airport so beware if you do not hold a EU passport you will not get on the flight without the proper papers ,l have also witnessed in the past many others that have managed to board the flight only to be stopped by the UK border force and refused entry and l presume put on a flight back to the country of orig.

Windtalker  ............... so beware if you do not hold an EU passport you will not get on the flight without the proper paper...........

Sorry but that comments does not make much sense.  Example if one is travelling to a country, which you can enter without a visa, then you only need your passport.  If you need a visa, again your passport with the visa stamp. Nothing more.

The OP asked a specific question,  which I guess only those actually affected will be able to answer with any degree of certainty.

I am only telling you what I seen ie none EU passport will not be granted entry by the UK border control if they do not have the appropriate paperwork and even if you have the appropriate papers you will have to prove how you are going to support yourself during your stay in Great Britain the Spanish stamp from Spain  will not get you into Great Britain you will have to apply to the British embassy for a visa for entry .

I have dual UK and British nationalities.

Using my Irish nationality, if I do not declare and they do not discover that I also have British nationality,   I can take my non EU wife to the UK providing she has a Residencia  (NB not EU Citizen Registration of course which does not apply to non EU citizens).

EU nationals (not  British nationals) who have exercised their right of free movement by living in another EU country can do the same. The spouse does not need any other paperwork according to the law.

However, it would appear from the legislation, that a UK national, who although having lived in another EU country, cannot take his/her spouse to UK unless that British national, has worked in that other country.  The meaning to ‘work’ appears not to be defined unlike say in UK, under the DWP rules where ‘work’ includes paid work or any other work which would normally be paid.   I have worked for 4 hours a week, for 17 years as a volunteer but I do not know if that is sufficient to qualify.

See:

EJC Finding curia.europa.eu/jcms/jcms/P_152548/       At    www.curia.europa.eu                                                     "Court of Justice of the European Union,   PRESS RELEASE No182 /14,   Luxembourg, 18 December 2014,   Judgement in Case C-202/13"

This message was last edited by johnzx on 11/11/2015.

Hello windtalker I think you have misunderstood the subject of this thread.

It is not about 2 Chinese in Alicate airport being deported back to China or about Spanish stamps in passports or proof of financial means to enter the UK.

It is about the following:-

‘’Non-EU family members do not need visa to enter UK, says European court

Entering the UK as the holder of an Article 10 residence card

If you are a non-EEA national who holds a valid genuine residence card, issued to you as the family member of an EEA national who is exercising free movement rights in another EEA State (i.e. not your EEA relative’s Member State of nationality) under Article 10 of Directive 2004/38/EC (the ‘Free Movement Directive’), you may use this document for travel to the UK if you are accompanying your EEA national relative here, or joining your EEA national relative in the UK.’’

The reason I posted this subject is that I was sceptical about the airlines and authorities actually implementing it. This was confirmed by johnzx post about BA  refusing to recognise it (see post).

However I have since contacted Jet2 airlines and emailed them a copy of my wife’s Spanish residence card and their reply was:-

‘’ Thank you for your email.

I have now received a full response to your enquiry and am happy to advise you of the following.

This residence card allows the customer to travel between Spain and the UK without a Visa.

Of course this is subject to change should the regulations be amended between now and the date of travel. 

I hope this clarifies everything for you now and you both have a lovely flight with Jet2.com.’’

Thanks Potblack, but was there any mention of you having exercised your freedom of movement rights and or working ?

..................   family members of EEA nationals who are exercising free movement rights in another Member State than that of their nationality. ....................

Hello johnzx

Throughout my research no one has ever mentioned or asked any questions about me having exercised my freedom of movement rights and or working?. If they had, I have no knowledge of this subject other than I thought an EU passport holder could travel throughout the EU member states freely without a visa.

With regard to:- ‘’Non-EU family members do not need visa to enter UK, says European court. Entering the UK as the holder of an Article 10 residence card.

I have contacted several authorities and airlines on this subject. Not all have responded yet, but I have received a mixed response from some. When contacting the airlines I quoted the above and stated I was about to book a flight with them.

Jet2 = Yes no problem

Ryanair = Yes no problem

British Airways = referred me to International Air Transport Association http://www.iatatravelcentre.com/ and that says Yes.

Monarch = After lots of emails and arguments they said No, a visa or family permit needed. I then stated they were wrong and would make a complaint to the Civil Aviation Authority. They then changed their mind and said Yes.

Potblack:   Throughout my research no one has ever mentioned or asked any questions about me having exercised my freedom of movement rights and or working?.

Thanks for your help on this.

However,  that no one has mentioned it, does not alter that it is a required condition, according to what it says at the reference you gave,  i.e. that part which I have highlighted in red.  (Just read British instead of French and Spain instead of Italy,   in the example)

"If you are a non-EEA national who holds a valid genuine residence card, issued to you as the family member of an EEA national who is exercising free movement rights in another EEA State (i.e. not your EEA relative’s Member State of nationality) under Article 10 of Directive 2004/38/EC (the ‘Free Movement Directive’), you may use this document for travel to the UK if you are accompanying your EEA national relative here, or joining your EEA national relative in the UK.

Article 10 residence card

An Article 10 residence card is a document which is issued under EU law (‘the Free Movement Directive’) by EEA Member States to non-EEA family members of EEA nationals who are exercising free movement rights in another Member State than that of their nationality. For example, the non-EEA spouse of a French (British)  national who is living and working in Italy (Spain) may be issued with an Article 10 residence card by the Italian (Spanish) authorities

PS Reading again, "who is living and working'  it is not exactly clear if that relates to  the EEA national or the spouse.  In my case I have not worked for payment and my wife has never worked in the 10 years she has lived (with a residencia card) in Spain.

Hello johnzx

For example, the non-EEA spouse of a French (British)  national who is living and working in Italy (Spain) may be issued with an Article 10 residence card by the Italian (Spanish) authorities

The statement says ''may be'' issued. But your wife and mine already have the Article 10 residence card, which they had to obtain to reside in Spain. So this seems to make the statement of ''who is living and working'' irrevelent or should the statement have read who is ''living or working''.

Potblack :     I was just referred to this webb page and would be interested to hear your take on it:

https://www.gov.uk/government/uploa...ta/file/464872/Direct_Family_Members_v3_0.pdf

This page tells you about British citizens who have exercised free movement rights as a worker or self-employed person in another member state and are accompanied by their non

European Economic Area (EEA) national family members when they return to the UK. Under regulation 9 of the Immigration (EEA) Regulations 2006 (the Regulations) a no-EEA national who is the spouse or civil partner or other direct family member of a British citizen, may have rights under European law if certain conditions are met. This is in line with the Court of Justice of the European Union (ECJ) judgment in the case of Surinder Singh (C370-90…………….   For the family member of a British citizen to have a right of admission and residence under the regulations, the following conditions must be met: 

The British citizen exercised free movement rights as a worker or self-employed person in another EEA member state

Etc etc ....................

Hello johnzx and thank you.

An interesting document of 76 pages which seems to be ‘’Published for Home Office staff on 29 September 2015’’.Very informative and complex.

I am not sure I would be too keen to present this document to Easyjet check-in staff at Alicante airport.

Sorry Potblack,   I should have said look at page 36, that is where I copied the quote from, i.e. that we need to have worked (exercised our EU rights)  for spouse to qualify.

Hello johnzx

This document is from the Home Office and is for guidance purposes to its employees.

Page 36 refers to ‘’Enquiries to make in cases of domestic violence’’

Page 40 says:- Relevant factors to show the centre of the British citizen’s life has transferred to another EEA state include, but are not limited to

 -The period of residence in the EEA state as a worker or self employed person.·

-location of the British citizen’s principal residence·

-degree of integration of the British citizen in the EEA state

Potblack.  This is  a post 'from another place'  commenting on the requirement to have worked:-   

Exactly my understanding.   Unfortunately the UK govt fails to recognise this EU directive, insists on the working aspect and so denies UK citizens their legal right to return to the UK with their non-EU spouse/partner. I've been told by lawyers that nothing will change until someone challenges that legality or, the work of lawyers like Colin Yeo has an effect along with the xxxxx organisation. I was really hoping I could use this case for self-sufficiency in Ireland or Cyprus, but I cannot afford the legal costs of challenging the HO when refused at the point of re-entry.

Re xxxx = edited by me to keep within the rules i.e.NO LINKS TO EYE ON SPAIN "COPYCAT" WEBSITES

johnzx This comment is out of date, see below.

*Updated 17 April 2015*

The UK Government has laid regulations before Parliament that will give effect to the ruling in Case C-202/13 McCarthy.

On 16 March 2015, the Immigration (European Economic Area) (Amendment) Regulation 2015 SI No 694 were laid before Parliament and will come into force on 6 April.

The effect of these amendments will be that, from 6 April 2015, EEA Family Permits will no longer be required in circumstances where a valid residence card issued under Article 10 of the Directive is held by a non-EEA national accompanying or joining an EEA national exercising free movement rights in the United Kingdom.

It therefore remains to be seen how the UK authorities intend to give effect to Case C-456/12 O & B.  In this case, the EU Court of Justice held that the the right of EU citizens to return home with their non-EU family members is only conditional upon demonstrating (1) “genuine residence” in another EU country, namely by residing for a period in excess of three months during which time the EU citizen and his family members met the requirements of Article 7 of Directive 2004/38; and (2) during the period of residence in another EU country, the EU citizen created or strengthened his family life.

7        Article 7(1) and (2) of that directive is worded as follows:

‘1.      All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a)      are workers or self-employed persons in the host Member State; or

(b)      have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

(c)      —      are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

–      have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or

(d)      are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

2.      The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).’

8        Article 10(1) of that directive provides:

‘The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.’