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UK cannot block non-EU family

The UK cannot block non-European Union family members from entering the country without a travel permit, EU judges have ruled, in a decision which potentially opens Britain's borders to large numbers of non-EU nationals.

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.

The European Court of Justice (ECJ) in Luxembourg, which interprets EU law, ruled in the McCarthys' favour, saying freedom of movement rules do not allow measures which stop family members from entering a member state without a visa, adding that the rules are for general grounds of preventing abuse.

Conservative and Ukip MEPs reacted with outrage at the decision.

Conservative MEP Timothy Kirkhope, spokesman on justice and home affairs, said: " 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."

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.

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 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 win could potentially open Britain's borders to large numbers of non-EU nationals who live with EU citizens who have exercised their freedom of movement rights across the continent.

Mr McCarthy said: " 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 a British national I had expected my country to play by the rules, and now the court has finally forced the UK to respect British and European citizens' free movement rights."

Conservative MP Dominic Grieve, when he was attorney general, tried to argue that the UK was entitled to invoke the visa regime to allay concerns about other EU member states' residence cards, as some allegedly do not meet international security standards and are open to abuse.

But UK 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.

ECJ 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".

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 ECJ 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 ECJ 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."

Prime Minister David Cameron's official spokesman said: "We argued against this, so we disagree with the ruling.

"We think our approach is the right one in terms of part of the measures we have to control our borders."

Asked if the Government could appeal against the ruling, the spokesman said: "There is a next step now in terms of legal process. This case went to the European Court in relation to a High Court case and that High Court case was on hold pending the judgment of the European Court.

"So the issue now returns to the High Court. We will have to see the outcome of that."

Lord Andrew Green of Deddington, chairman of Migration Watch UK, said: "This is yet another ECJ judgment which weakens our ability to control entry to the UK despite the fact that we long ago opted out of the Schengen area.

"This ruling means that an EU directive trumps a UK immigration control designed to prevent abuse. It is becoming increasingly difficult to see how effective controls can be achieved under the current arrangements in the EU."

But Ruth Grove-White, policy director of the Migrants Rights Network, said: " Today's judgment from the European Court of Justice supports the right of families to live and travel together with ease across the European Union, regardless of whether the family includes a non-EU national.

"However, it doesn't address the injustices currently faced by the thousands of British people separated from their non-EU spouses since tough family migration rules were introduced in the UK in 2012.

"These families will continue to ask why, when the European courts recognise the importance of family life, the UK Government continues to keep its own citizens apart from their close family members."


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