Is a UK visa needed for a British citizen's non-EU spouse (who holds an EU Family Member Residence Card) if they wish to visit the UK together for a holiday? Both are currently living in the Netherlands, exercising "Freedom of Movement" rules for EU citizens and family members. I believe that an EEA citizen's spouse only needs a valid passport, the EU Family Member Residence Card and a marriage certificate, but does a British citizen count as an EEA citizen in this case?
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I would love to know the outcome as I am basically in the same boat. I am living in Germany have been since 1986, my wife is Filipino and has a residence permit for Germany. I have read on some sites that others only required the residence permit for their spouse to enter the UK. We are hoping to travel to the UK for my 50th in October.– DaveJul 15, 2018 at 16:23
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1 Answer
Is a UK visa needed for a British citizen's non-EU spouse (who holds an EU Family Member Residence Card) if they wish to visit the UK together for a holiday?
No. This was a gray area in the law, and the UK's policy was otherwise, until the McCarthy decision of 2014. Now, thanks to that decision, you can travel to the UK under the conditions outlined at Entering the UK as the holder of an Article 10 residence card.
You may also elect, however, to apply for an EEA family permit, as you would have to if you did not have the EU family member residence card. The EEA family permit is free of charge.
Under UK law (The Immigration (European Economic Area) Regulations 2016), regulation 9, a family member of a British citizen is treated as the family of an EEA national if several conditions are met. The conditions are laid down in paragraph 2:
(2) The conditions are that—
(a) [the British Citizen]—
(i) is residing in an EEA State as a worker, self-employed person, self-sufficient person or a student, or so resided immediately before returning to the United Kingdom; or
(ii) has acquired the right of permanent residence in an EEA State;
(b) [the family member] and [the British citizen] resided together in the EEA State; and
(c) [the family member] and [the British citizen]’s residence in the EEA State was genuine.
The fact that you have the article 10 card should satisfy the immigration officer that you meet these conditions.
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I've heard about the McCarthy case, but the fact that it involved a dual nationality individual (British/Irish) made me wonder if British-only citizens were covered.– PaulieJul 12, 2018 at 13:52
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As for the EEA Family Permit - this is impossible. It requires proof of "integration" in the host country and we don't have a hope of proving this since we don't speak Dutch, have no kids born here, don't own our own home, don't drive a car. (Examples of "integration"). Also, I emailed the UK immigration authorities (mentioning the Article 10 Residence card page on the www.gov.uk site) and they just told me a visa is needed, with no explanation!– PaulieJul 12, 2018 at 14:03
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@Paulie the "degree of integration" is only one of five factors related to the "genuine residence" criterion of 9(2)(c) (listed at 9(3)). The guidance page overstates the importance of integration. But logically, if you don't qualify for an EEA FP under Surinder Singh then you don't qualify for free movement and can't travel without a visa. For questions about whether your particular circumstances qualify, you really have to speak with an immigration lawyer. Otherwise, you can just try it and see what happens. I expect you'd get in, but that's based on anecdotal evidence from the site.– phoogJul 12, 2018 at 14:24
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How long have you lived in NL? How long has your spouse lived there? How long have you lived together? Why did the British spouse move to the Netherlands? To what extent are you integrated? (Not driving a car is completely irrelevant; don't forget that many Dutch people bike everywhere, and not having children is also irrelevant, as making it significant would constitute discrimination. Whether you own or rent your home is also less important than the length and permanence of your residence; many people live their entire lives without owning a home.)– phoogJul 12, 2018 at 14:29
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The examples of "integration" are examples mentioned by UK gov - not made up by me. Am in NL for work - been here 18 mths. Trying to avoid "just turn up and see". Got examples of folk who did it and it worked?– PaulieJul 12, 2018 at 14:33