EUROPEAN UNION judges have ruled that the UK cannot block non-EU family members from entering the country without a travel permit in a decision which potentially opens Britain’s borders to large numbers of non-EU nationals from around the world.
The complicated case centres on Sean McCarthy, a dual British and Irish national living and working in Spain, and his wife, Patricia McCarthy Rodriguez, a Colombian citizen. They have two young children who are both British citizens.
Mrs McCarthy claimed she should be allowed to travel to the UK with her British family without having to obtain a British visa as she holds an EU Residence Card issued by the Spanish government.
However, the British Government has until now required Mrs McCarthy to obtain a “family permit” visa every six months if she wants to travel to the UK.
The McCarthys took action against the UK Government under the European Union’s freedom of movement rules, arguing that Mrs McCarthy should not have to apply for a visa every time she wants to travel.
The European Court of Justice (ECJ) in Luxembourg, which interprets EU law, ruled in the McCarthys’ favour today, stating that freedom of movement rules do not allow measures which - in pursuit of an objective of general prevention of abuse - preclude family members from entering a member state without a visa.
The win could potentially open Britain’s borders to large numbers of non-EU nationals who live with EU citizens across the continent.
Mrs McCarthy has to go from Marbella to the British Embassy in Madrid to be fingerprinted and complete detailed application forms every time she wants to travel to the UK.
The process takes several weeks, even months, her lawyers said.
The UK invoked the visa regime because it had concerns about other EU member states’ residence cards, as some allegedly do not meet international security standards, and therefore could be used to abuse EU freedom of movement rules.
But the legislation requires an entry permit to be obtained before entry into the UK 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.
Court of Justice judges said the fact that a member state is faced with a high number of cases of abuse of rights or fraud committed by non-EU nationals - as the UK claims - cannot justify a sweeping measure to exclude family members of EU citizens.
The judges said the UK is able to assess documentation for signs of fraud or abuse at the border and if fraud is proven they can exclude an individual.
But they added that the UK is “not permitted to determine the conditions for entry of persons who have a right of entry under EU law or to impose upon them extra conditions for entry or conditions other than those provided for by EU law”.
Yorkshire MEP Timothy Kirkhope, Conservative spokesman on justice and home affairs, said: “Of course the UK should have an immigration system which is fair, and does not disadvantage the right of British citizens to be with their family.
“However, we are disappointed with this judgment as we believe that the UK’s visa system is both fair and lawful, and does an important job in meeting this country’s migration needs.
“Britain will always be best placed to decide and deal with its own immigration needs - not a judge in Luxembourg.
“We must have a system robust enough to prevent abuse and flexible enough to assess each case on its merits. Most of all we need a visa system controlled by the UK and not the EU.
“Conservatives have significantly lowered immigration from outside the EU. We have tackled abuse through routes such as student visas. We are addressing failures of the last Labour government.”
A Government spokesman said: “The UK is disappointed with the judgment in this case. It is right to tackle fraud and the abuse of free movement rights.
“As the case is still to return to the UK’s High Court for a final judgment, it would be inappropriate to comment further at this time.”
Britain is bound by the Court of Justice’s ruling.
Free movement rules have been at the heart of the debate over immigration in Britain and whether the country should remain a member of the EU.
Last month, David Cameron promised tough new restrictions to stem the flow of EU citizens to Britain, including a block on EU migrants claiming welfare for the first four years after they arrive in the country.
However, the Prime Minister insisted he rules ‘’nothing out’’ if British demands for change fall on deaf ears, and warned that welfare reforms will be an ‘’absolute requirement’’ in the renegotiation that would be held ahead of his planned referendum on EU membership.
Ukip MEP and spokesman on immigration Steven Woolfe said the Court of Justice ruling strikes another blow against the UK’s power to control its borders.
Mr Woolfe said: “Britain will be forced to recognise residence permits issued by any EU member state, even though the system of permits is wide open to abuse and fraud.
“This ruling extends the so-called ‘right to free movement’ to millions of people from anywhere in the world who don’t have citizenship of any country of the EU.
“This is yet more proof that Britain can never take back control of its borders as long as it remains in the European Union.”
He went on: “This makes claims by David Cameron that he can control migration from within the EU look even more absurd.
“The ECJ, like every other EU institution, is determined that Britain will never take back control of its borders. That is a non-negotiable principle of the European treaties. For Cameron to pretend otherwise is naive or dishonest or both.”