Irishman wins battle with UK over travel visa

An Irish man has won an action against Britain over the insistence his Colombian-born wife needed a visa to enter the country.

The case will have huge implications for Prime Minister David Cameron who has pledged to limit the number of foreigners, including EU nationals, coming into the country.

A spokesperson for Mr Cameron said they disagreed with the ruling.

Sean Ambrose McCarthy has spent five years fighting for the rights of his wife and their two children as, under EU law on free movement, they are entitled to enter any EU country with a residence card and do not need a visa.

A jubilant Mr McCarthy, originally from Gneeveguilla, Co Kerry, said the case has cost him over €200,000. He rejected an offer to settle the case and insisted on aspects of it being heard by the European Court of Justice in Luxembourg.

“By accepting this, I would be betraying the many millions of EU citizens who are in a similar position as us but lack financial muscle to take an action all the way to Europe,” he told the Irish Examiner.

Mr McCarthy, who has dual Irish and British nationality, is married to Helena Patricia McCarthy Rodriguez, a Colombian, and they have two daughters. Since 2010, they have lived in Spain and also have a house in Britain, travelling there regularly.

Ms McCarthy Rodriguez holds a residence card issued by the Spanish authorities and, under the EU directive on free movement of Union citizens, the spouse of an EU citizen is entitled to travel with a residence card.

However, Britain — and Ireland up to 2011 — say that holders of such a card must apply for an entry permit, which is valid for just six months. The applicant must go in person to a British diplomatic mission abroad to have it renewed, be fingerprinted, and give financial and employment details.

In 2009, Mr McCarthy issued Irish High Court proceedings against the justice minister for having similar rules, but before the hearing date, another person taking a similar case won. He was awarded costs and damages, and the law was changed in 2011.

Britain, however, did not change its law: The action by the Irish Government was described as “craven surrender” by the judge hearing the case in the Royal Court of Justice in November last year.

The judge, Mr Haddon-Cave, found against them on every point and the case was then referred to the European Court of Justice.

Unusual for such cases, the then British attorney general, Dominic Grieve, came to Luxembourg to plead the UK case in March.

The court ruled yesterday that the directive does apply to the McCarthy case and that there was nothing in the directive that required her to have a visa since she was married to an EU citizen.

Her right to enter could only be withdrawn if, following an examination of her individual case, the authorities proved she had abused her rights or been guilty of fraud.

The fact a member state is faced with multiple cases of abuse of rights or fraud committed by third-country nationals — as claimed by Britain in the case — did not justify the action they were taking, the EU court found.

Conservative and Ukip MEPs reacted with outrage at the decision. Tory 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 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.”

Ukip MEP Steven Woolfe said the ruling strikes another blow against the UK’s power to control its borders.

“This is yet more proof that Britain can never take back control of its borders as long as it remains in the European Union.”