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I am a South African passport holder. I have obtained permanent residence in the UK as the family member of an EU national (German spouse). However, I obtained permanent residence under the Retained Right of Residence, following our divorce. My Residence Card says "RESIDENCE CARD OF A FAMILY MEMBER OF A UNION CITIZEN". It says EU RIGHT TO RESIDE on the reverse side.

However, I was refused boarding on a flight from London to Spain recently. They said that I have to travel with my EU family member. Was this correct, and if not, how do I persuade check-in staff to let me fly next time?

  • what is the point is asking for opinions, which is off-topic (SE sites are not discussion forums, but Q&A sites). Did you want to ask something else maybe? Then please edit your question. – Jan Doggen Jul 26 '18 at 10:07
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    It's pretty obvious that my question is whether I should be allowed to travel alone to EU and Schengen areas based on my status as described. – Ceejay Jul 26 '18 at 10:46
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    clearly this is the wrong forum for this. I was on a page that was all about immigration and posted my question and ended up on a software developer technical q&a page - quite ironic actually. – Ceejay Jul 26 '18 at 10:50
  • @Ceejay : I have edited your text to ask whether you should be allowed to fly, and if so, how you persuade check-in staff of this. (I know you didn't ask the latter - but you need to know it!) If you don't like my change, reject it, and redo it. (If you do like it, could you accept it please?) – Martin Bonner Jul 26 '18 at 10:54
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Your retained right of residence allows you to reside in the UK. It does not grant you freedom of movement in the EU. That right is only afforded to EU citizens and their family members as long as the family member is traveling with, or reuniting with their EU family member. Furthermore, they may still be required to apply for a visa (but the visa has to be processed quickly, and for free). Note from this page:

Residence permits issued by countries outside the Schengen area do not allow non-EU family members to travel visa-free to a Schengen area country

Unfortunately, the check in staff were correct to deny you boarding, assuming you didn't have a Schengen visa.

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    You're probably entitled to become a British citizen though if you've been here long enough for indefinite leave to remain. Maybe it would be worth applying for it for easier travelling. – BritishSam Jul 26 '18 at 13:30
  • There is no EEA family permit in the question, and an EEA family permit does not grant a right of residence. A residence card, which the question does concern, is different from an EEA family permit. – phoog Jul 26 '18 at 13:44
  • @phoog I inferred that the type of documentation obtained through the "Retained Right of Residence" in the question was an EEA family permit. Someone with an EEA family permit would have the wording "EU RIGHT TO RESIDE" on their BRP. Maybe I'm wrong about this. – MJeffryes Jul 26 '18 at 13:56
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    @MJeffryes An EEA family permit is a visa-like sticker in the passport. There is no card. It's really only useful for traveling to the UK and entering the UK. Someone who resides in the UK under the Immigration (EEA) Regulations gets a card that is called a "residence card" (not a BRP); that is the article 10 (or article 20) card for the purpose of directive 2004/38/EC. – phoog Jul 26 '18 at 14:15
  • @MJeffryes you've also quoted the wrong point in the page you link to, because the card held by Ceejay is not a residence permit, but an "EU family member's residence card. See the next bullet point on the page. – phoog Jul 26 '18 at 18:07
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As MJeffryes has noted in his answer, the prevailing interpretation of directive 2004/38/EC is that someone with a "Residence card of a family member of a Union citizen" may only use that card to benefit from the visa-free entry specified in Article 5(2) when they are traveling with or joining their EU family member. That condition is not explicit in the directive, and, as you note, it is an unreasonable or at least insurmountable barrier to the right of free movement for someone with a retained right of residence.

The directive, however, is not explicit on the question of whether a person enjoying a retained right of residence in one country continues to benefit from the other free movement provisions, such as a right of entry into another country. In other words, it provides that you retain a right of residence in the UK, but not necessarily that you retain a right of free movement throughout the EU.

To challenge the prevailing interpretation of the directive, you may have to go to court (I do not know whether the matter has already been decided by a court.) Before going to court, though, you might try lodging a complaint with SOLVIT, but they also link to the page that reflects the prevailing interpretation:

Your non-EU spouse, (grand)children or (grand)parents do not need to get a visa from the country they are travelling to if:

  • They have an EU family member's residence card issued under EU rules by any EU country (except the country you are a national of), and they are travelling together with you or travelling to join you in another EU country. The residence card should clearly state that the holder is a family member of an EU national.

(emphasis added)

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