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UK Government to Recognise Family Member Residence Cards from April 2015

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*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.

In Case C-202/13 McCarthy the CJEU ruled last December that “Member States are, in principle, required to recognise a residence card issued under Article 10 of Directive 2004/38, for the purposes of entry into their territory without a visa”.

The judgment was handed down in Case C-202/13 McCarthy on a reference for a preliminary ruling by the English High Court, concerning a dual British/Irish citizen residing in Spain with his Colombian wife and their children. Mrs McCarthy held a residence card issued under Royal Decree No 240/2007, which gives effect to Directive 2004/38 in Spain. Despite holding such a residence card, the UK authorities had required Mrs McCarthy to obtain a visa called an EEA family permit in order to enter the UK with her husband.  The McCarthys brought proceedings before the High Court to challenge the UK’s policy not to recognise such residence cards. The High Court then referred the matter to the EU Court of Justice for a binding opinion on the interpretation of the EU rules.

The implementation of the CJEU’s ruling will bring an end the UK’s long-running policy that effectively required all family members of EU citizens to obtain an EEA Family Permit before being able to enter the UK with their EU relative, even though they held a residence card issued by another EEA State.

Under Article 5(2) of Directive 2004/38, which governs the rights of entry and residence of EU citizens and their family members who move around the EU, the possession of a residence card issued under Article 10 should exempt a non-EU family member from the need to obtain a visa when they travel to an EU country with their EU relative or join them EU there. The Directive applies to all EU countries as well as Norway, Liechtenstein and Iceland by virtue of EEA Standing Committee Decision No 158/2007.

However, the Directive does not apply to Switzerland. As a result, the visa exemption does not apply to those holding a residence card issued under the EU/Swiss Agreement on the Free Movement of Persons. The family members of EEA nationals residing in Switzerland will still be required to obtain an EEA Family Permit.

Prior to these amendments being made, the UK was in breach of Article 5(2) of Directive 2004/38 because it required non-EU nationals who are family members of EU citizens residing in another EU country to an EEA family permit in order to enter the UK. The issue was first identified in a 2008 compliance study undertaken for the European Parliament (pp 165-166). The UK should have been exempting family members who hold a family member residence card from the need to obtain a visa but its implementing rules – the Immigration (European Economic Area) Regulations 2006, specifically regulation 12 – did not allow for such a facility.

The problem lay in the definition of “residence card” under regulation 2 of the EEA Regulations. While the UK amended its rules with effect from 1 January 2014, it only initially recognised cards from Germany and Estonia, but not those issued by other Member States. Apparently, this limited recognition was justified on the basis of the practice of these two countries to issue residence cards containing the biometric data of family members. Following the changes made by the 2015 Regulations, a “residence card” is now defined as a residence card issued under Article 10 of Directive 2004/38 by an EEA State except Switzerland. (Click here for a consolidated version of the EEA Regulations).

As a result of the changes, family members who hold a residence card explicitly identifying them as the family member of an EU citizen will be able to travel to the UK without the need for a visa in the form of an EEA Family Permit, when they accompany their EU relative or join them in the UK.  The Home Office has now issued guidance that explains the new rules.

However, note that residence permits issued under national immigration law to the family members of EU citizens living in their country of nationality will not benefit from this exemption. Such family members will still be required to obtain a visa to travel to the UK even when accompanying or joining their EU relative in the UK.

The 2015 Regulations also make several amendments to the EEA Regulations. A new regulation 23A now gives the possibility for the UK authorities to revoke a right of admission to the UK on the basis that the EU citizen or family member in question is a threat to the public interest on grounds of public policy, public security or public health under regulation 19(1), or because the person concerned is subject to a deportation order or an exclusion order under regulation 19(1A), or because there are “reasonable grounds to suspect that admission would lead to the abuse of a right to reside” under regulation 19(1AB). Appeals against a decision to revoke a right of admission can only be made by an out-of-county appeal under regulation 27.

A further set of changes amend the Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013. As a result, Croatian nationals subject to the worker authorisation scheme will benefit from similar changes to the immigration rules enjoyed by non-EU nationals as regards Tier 1 Exceptional Talent and student sabbatical officers.

Regrettably, the 2015 Regulations make no changes to the “transfer of centre of life” test contained in regulation 9 in connection with the family members of British citizens returning to the UK after exercising free movement rights in another EU country. Regulation 9 is intended to give effect to the Surinder Singh ruling. It was amended last year to require British citizens who return home after residing in another EU country to demonstrate that they had previously transferred the centre of their life to the EU country from which they are returning.

However, the European Commission is reportedly investigating the UK over the issue. In correspondence on the issue, the Commission explained that it considers that:

“The UK criterion of having transferred one’s centre of life to the host Member State is not contemplated in the Directive and would not appear to be equivalent to the conditions spelt out in [Case C-456/12] O and B, in particular where [sic] examining the location of the principal residence€ and the degree of integration in the host Member State. The location of EU citizens’ principal residence or their degree of integration do not play any role in examining whether the residence is in line with Article 7 of the Directive

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.

Given that the UK’s regulation 9 that gives effect to Surinder Singh have yet to be brought into line with Case C-456/12 O & B, the family members of British citizens returning home should continue to apply for an EEA Family Permit before trying to return to the UK, as this will minimise the risk of being refused entry to the UK and having the considerable inconvenience of having to appeal the decision from outside the UK.

Such a course of action is clearly recommended in view of the UK Government’s interim briefing for Border Force officials published in a response to a Freedom of Information Act request by BritCits, in which it takes the following view:

“10. It should be noted that this judgment [in Case C-202/13 McCarthy] does not affect the rights of family members of British citizens who have exercised Treaty rights in another EEA member state under the ‘Surinder Singh’ judgment. Such persons should continue to be considered under regulation 9 of the EEA Regulations.”

This guidance appears to be in direct contradiction with paragraphs 41 and 42 of the CJEU’s ruling in the McCarthy case:

“41        … there is nothing at all in Article 5 indicating that the right of entry of family members of the Union citizen who are not nationals of a Member State is limited to Member States other than the Member State of origin of the Union citizen.

42      Accordingly, it must be held that, pursuant to Article 5 of Directive 2004/38, a person who is a family member of a Union citizen and is in a situation such as that of Ms McCarthy Rodriguez is not subject to the requirement to obtain a visa or an equivalent requirement in order to be able to enter the territory of that Union citizen’s Member State of origin.”

Moreover, the Home Office guidance fails to explain how the new rules affect family members of British citizens who return home after exercising free movement rights.

As a result of this continuing discrepancy between the EU and UK rules, family members of British citizens residing in another EEA state are therefore encouraged to apply for an EEA Family Permit before travelling back to the UK.

Those wanting further advice on their situation are invited to contact Your Europe Advice for further information.

‘UK Government to Recognise Family Member Residence Cards from April 2015’ first appeared on the EU Rights Clinic’s blog.

The views expressed on the blog are personal to the authors and should not be seen as constituting legal advice. It should not be relied upon instead of consulting a lawyer.

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Swiss vote for renunciation of EU/Swiss free movement agreements

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Today, Switzerland voted in a referendum that signals an end to the EU/Swiss Agreement on the Free Movement of Persons that was signed in Luxemburg on 21 June 1999. The Agreement had last been approved by Swiss citizens in a referendum held less than three years ago.

This time, a slim majority of 50.3% of the Swiss population voted in favour of a popular initiative entitled “against mass immigration”. 56% of registered voters reportedly took part in the vote. 17 federal cantons voted in favour, while 9 voted against. In order to be approved, a popular initiative requires a dual majority: the initiative needs to obtain the consent of the majority of the voters, and it must be approved in a majority of the cantons.

The Swiss Ministry of Justice has already indicated it will start work on a legislative proposal to give effect to the new constitutional provision. The Ministry also specified that it would seek to renegotiate the Agreement on the Free Movement of Persons with the EU within a three year transitional period. The Agreement remains in force for now.

The initiative aims to insert a new article into the Federal Constitution of the Swiss Confederation to give the Swiss government absolute control over immigration by imposing caps on migrants living or working in Switzerland. It also mandates that no international agreement concluded by Switzerland can provide for the contrary.

The new constitutional provision that was approved in the referendum reads as follows:

‘Article 121a (new) Management of immigration

1 Switzerland shall regulate immigration as it sees fit.

2 The number of permits entitling foreigners to reside in Switzerland shall be subject to annual ceilings and quotas. The ceilings shall apply to permits issued pursuant to the immigration laws, including the rules on asylum. The right to permanent residence, family reunification and social welfare entitlements can be restricted.

3 The annual ceilings and quotas for foreigners exercising a gainful activity will be determined in accordance with Switzerland’s global economic interests and in accordance with the principle of preferential treatment of nationals; these shall also cover frontier workers. The criteria for allocating residence permits shall be based upon the needs of the employer, the capacity to integrate and the existence of adequate and self-sufficient resources.

4 No international treaty shall be concluded which contravenes these provisions.

5 Legislation shall give further effect to this provision.’

The initiative also provides a transitional period of three years during which international treaties must be renegotiated:

‘Art. 197 Transitional Measures relating to Article 121a

1 International treaties which are contrary to Article 121a shall be renegotiated and amended within a period of three years from the date of approval of the provision by the people and the cantons.

2 In the event that the laws giving effect to Article 121a have not entered into force within three years of the approval of the provision by the people and the cantons, the federal Council shall adopt provisional measures to give effect to the provision by way of decree.’

However, it remains to be seen whether there will be appetite among the EU institutions and the Member States for a whole-scale renegotiation of the Agreement on the Free Movement of Persons.

The negotiations relating to the current Agreement began not long after the rejection of Swiss participation in the EEA Agreement by a referendum held on 6 December 1992. The no vote in the referendum was swiftly followed by an official request by the Swiss authorities to start negotiations for an agreement on air transport. However, the EU prevailed in tying the conclusion of an agreement on air transport to the negotiation of a further six bilateral agreements covering free movement of persons amongst others. The Agreement on the Free Movement of Persons was eventually signed in 1999 and only entered into force some three years afterwards. This was followed by a transitional period of five years, so that it was only in 2007 that the Agreement finally took full effect.

In any event, regardless of the EU’s willingness to renegotiate the terms of the Agreement on the Free Movement of Persons, the Swiss government does have the option to renounce the Agreement by giving notice to the EU under Article 24. In such a case the Agreement then comes to an end six months after notification of a Swiss withdrawal.

Moreover, the Agreement on the Free Movement of Persons contains a “guillotine” mechanism covering all EU bilateral agreements, so that renunciation of this Agreement automatically triggers the termination of the other six bilateral agreements on air transport, rail and road transport, agriculture, mutual recognition of technical standards affecting goods, government procurement, as well as scientific and technical cooperation (collectively known as “Bilatérales I” in Switzerland). Renunciation of the Agreement on the Free Movement of Persons would therefore have wider far-reaching implications for Switzerland’s relations with the EU.

While a Swiss withdrawal from the Agreement on the Free Movement of Persons does not trigger the automatic termination of the separate agreements on Switzerland’s participation in the Schengen area and the Dublin Regulation signed in 2004 (referred to as “Bilatérales II” by the Swiss), both Switzerland and the Council of the EU also have a right to terminate those agreements (Articles 17 and 16 respectively) . There is a strong possibility this could happen given that the EU appears to consider the Agreement on the Free Movement of Persons as a pre-condition for participation in the Schengen Area, as reflected by the penultimate recital of the agreement concerning Swiss participation in the Schengen area. Renunciation of that agreement by Switzerland would then trigger cancellation of the agreement concerning the Dublin Regulation under Article 16.

The referendum affects an estimated 1.15 million foreign workers in Switzerland or 23% of the Swiss workforce according to EU Commissioner for employment and social affairs László Andor. A further 453,000 Swiss citizens living throughout the EU will also be affected by the popular initiative.

This development strikes a serious blow against the free movement of persons – one of the cornerstones of the European integration process – which is already under challenge from a number of EU governments and will no doubt provide ammunition for those calling for a renegotiation of the EU rules on free movement.

EU citizens and Swiss citizens who have questions about the effects the referendum will have on their personal situation are invited to contact Your Europe Advice for further assistance.

**Postscript**: For a discussion of the implications of the Swiss referendum in both Switzerland and the UK, please visit the EU Law Analysis blog. 

The views expressed on the blog are personal to the authors and should not be seen as constituting legal advice. It should not be relied upon instead of consulting a lawyer or immigration adviser.

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EU Rights Clinic Investigates Gibraltar Border Delays

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The EU Rights Clinic has received over 80 detailed complaints from citizens of the European Union about excessive delays at the Spanish-Gibraltar border crossing that left them waiting between 3 to 6 hours to cross the border in either direction on and around the week-end of 28/29 July 2013.

The complainants include residents from Gibraltar, commuting Spanish workers and tourists. EU citizens who crossed the border were subjected to excessive controls targeting most vehicles queuing at the border. The measures required drivers to open the boot of their vehicle for the border guards to perform a perfunctory check.

The Citizens Advice Bureau in Gibraltar reported that their “clients were left waiting in a queue to cross the border into Spain for over 6 hours in the scorching heat.  One client’s baby became sick because of the heat and started to vomit and [the parents] had to call an ambulance since there was no way they could get out of the queue.  Another client was late to catch a flight for their summer holiday.” A woman who could not get home until well past midnight commented “from what I saw, the [Spanish] civil guards weren’t even checking vehicles properly to justify their actions as searches for contraband or other illegal baggage.”

Spain claims it is carrying out legitimate measures to combat smuggling and fiscal evasion. While the EU rules on free movement of goods do not apply to Gibraltar, the EU rules on the free movement of persons and EU citizenship do remain applicable.

Anthony Valcke, solicitor at the EU Rights Clinic, explains:

‘Free movement of persons can only be restricted on public interest grounds. Combating smuggling and fiscal evasion are legitimate aims but they have to be carried out in a manner which is necessary and proportional. The measures here do not appear proportionate – the aim is not achieved if checks are being carried out half-heartedly – and nor do the measures appear necessary – because there could be alternative and more efficient ways of carrying out such checks. Furthermore, the EU Court of Justice has previously ruled that checks on persons who move freely around the EU should not be carried out on a systematic basis.’

It is not just the free movement of persons which is being affected. This issue goes to the very heart of Citizenship of the EU. The Spanish measures appear to be explicitly intended to interfere with the enjoyment by EU citizens of the substance of the rights conferred by the Treaties. Indeed the Spanish government has even announced it would consider imposing a toll fee of €50 (£43) on each person crossing the border. It is hoped that the European Commission would take immediate action before the EU Court of Justice in the event such a fee was imposed.

Evidence of delays at the border is now being documented on a daily basis. Peaks in the delays seem to coincide with other political events affecting Gibraltar’s and the UK’s relations with Spain. While the Spanish territorial claims may be legitimate concerns, this is a matter to be addressed in the appropriate forum. In no way do such claims justify the treatment suffered by EU citizens who wish to exercise their EU rights and move freely between EU member states. This is a particularly lamentable situation since it was at the initiative of the Spanish government that European citizenship was included in the Treaty of Maastricht.

For this reason, the EU Rights Clinic proposes to review the complaints it has received and to consider whether it would be appropriate for a request to be made to the European Commission for it to launch an immediate investigation into the matter. Citizens of the EU are entitled to expect the Commission will take all appropriate measures to safeguard their citizens’ rights.