The UK cannot require non-EU citizens married to an EU citizen and living legally in another EU state to get a visa before they can travel to the UK, the European Court of Justice has ruled in a case taken by an Irish man.
Seán McCarthy, originally from Gneeveguilla, Co Kerry, has lived in Spain since 2010 with his Colombian-born wife, Helena Patricia McCarthy Rodriguez, and two children, Natasha and Khloe.
The couple own a property in the UK, but Mrs Rodriguez was required to apply for six-month visas before she was allowed to travel there, though the couple complained that the applications were subject to repeated delays.
The couple’s two children both hold British passports, while Mrs McCarthy Rodriguez, whose parents live in Medellin, Colombia, holds a Spanish residence card, the Luxembourg-based court was told.
Mr McCarthy – who forced the Irish Government in 2011 to stop requiring visas for the non-EU spouses of EU citizens – began legal action in 2012 in the High Court in London, arguing that the UK had breached freedom of movement rules.
In its ruling, the European Court of Justice said the existing UK legislation required non-EU citizens to get visas “even where the authorities do not consider that the family member of an EU citizen may be involved in an abuse of rights or fraud”.
The British government had argued it was entitled to impose a blanket rule demanding that non-EU spouses get a visa because the residency permit rules in some EU countries were suspect and open to abuse.
However, the court said they were entitled under EU directives to travel with their EU-born spouses. The existence of abuses does not give the UK, or other member states the right to impose restrictions. Suspect individuals could be required to get a visa.
The British government is entitled to verify, the court said, that a person travelling fulfils the conditions for entry – including the possession of a valid residence permit in another EU member state, but it does not permit it to impose extra conditions.
Mr McCarthy is currently in Medellin with his wife visiting her family for Christmas because her visa application submitted in July to travel to the UK has still not been completed by the authorities.
“I’m overjoyed at the news from Luxembourg. It’s been a five-year battle for our family to be treated fairly and with dignity by the UK. As an Irish citizen and British national I expected the UK to play by the rules. Now the court has finally forced the UK to respect British and European citizens’ free movement rights,” he said.
The family’s solicitor, Kieran O’Rourke of the Brentford-based Howe & Co Solicitors, said the McCarthy judgment is “hugely important” because it copperfastens core free-movement rights of EU citizens, and their families.
“The home secretary flouted EU laws by forcing illegal visa requirements on ordinary families coming to Britain. Her arguments about control of UK borders and fraud were found wanting by the court. It’s a great day for the rule of law, and the rights of individual EU citizens,” he said.
Speaking from the Luxembourg court, Mr McCarthy’s son from his first marriage, Darren, expressed delight, saying his father “who never finished his primary cert had dragged the British government by the scruff of the neck” before the Luxembourg court.
His father, he said, regularly travels to Ireland to visit his brothers, Gerard, Séamus and Michael and sisters, Hannah Mary and Margaret. His father regularly travelled to the UK, he said, to receive medical treatment.
A Downing Street spokesman said last night: “The UK is disappointed with the judgment in this case. It is right to tackle fraud and the abuse of free movement rights.”
