Thursday, 18 December 2014

The CJEU confirms short-term free movement rights for EU citizens’ third-country family members


 

Steve Peers

Today’s important CJEU judgment in McCarthy answers an important question relating to the application of EU free movement law in the UK: can the UK limit the right of third-country national family members of UK (and other EU) citizens to visit the UK?

The judgment concerned a dual citizen of the UK and Ireland living in Spain, with his third-country national wife and their joint child (also a dual British and Irish citizen). UK law requires the family to obtain a ‘family permit’ every time they seek to visit the UK. As discussed in my previous comments on the Advocate-General’s opinion in this case, issues like these would normally only arise for travel between Schengen and non-Schengen states, since anyone holding a residence permit from a Schengen state is free to travel for short periods to other Schengen states without needing a visa, and there are normally no checks at the internal borders of Schengen states.

The EU’s citizens’ Directive states, among other things, that third-country national family members of an EU citizen who lives in another Member State must be given a ‘residence card’ to prove their legal status. Such a card exempts them from any visa requirement that would normally apply when they visit another Member State, if they visit that State along with the EU citizen family member. There’s no reference to any possibility to demand a ‘family permit’, or anything resembling it. In this case, Mrs. McCarthy had a residence card, so at first sight the UK can obviously not insist upon a de facto visa requirement.

However, the UK sought to justify its policy for two reasons: in order to avoid the abuse of EU law, and in order to apply a special protocol on border controls, which allows the UK (as well as Ireland) to check people crossing the borders between the UK and other Member States to determine whether they have EU law free movement rights or not.

The Court’s judgment first of all examines whether the citizens’ Directive can apply. It ruled that Mr. McCarthy and his wife were (quite obviously) covered by the citizens’ Directive when in Spain. But did the Directive apply when they come to the UK? The Court ruled that it did, since the relevant clause in the Directive (Article 5, on entry) made no distinction between the Member State of the EU citizen’s nationality and other Member States.

Next, the Court ruled that the ‘abuse of rights’ rule, which is set out in an express clause in the Directive (Article 35) could not justify the UK’s action. According to the Court, abuse could only be assessed in individual cases, rather than as regards whole categories of persons. Finally, the Court ruled against the UK’s attempt to justify its measure based on the borders Protocol, since that Protocol only allows the UK to check whether individuals have the right of entry under EU free movement law, not to deny them the right of entry once they qualify for free movement rights. The judgment won't be applied in practice until the UK courts give a further ruling, now that the case returns to the national courts - unless the UK government (improbably) gives effect to the judgment sooner.   

Comments

I should first of all point out, in light of some hysterical press reports, what this judgment does not do. It does not allow all UK citizens to bring their third-country national family members into the UK. For those UK citizens who reside in the UK, there’s nothing in this judgment to change the traditional position that only national law (and so the UK’s restrictive rules on family reunion) applies to their situation, rather than EU law. Simply put, the McCarthy family lives in Spain, not the UK.

There is a modest impact upon those UK citizens who are temporarily living in another Member State with their third-country national family member, planning to return to the UK later on, having used EU free movement law in the meantime to live with their non-EU family members. This is traditionally known in the UK as the ‘Surinder Singh’ route, following an earlier judgment of the CJEU by that name (for Dutch citizens, it’s known as the ‘Belgian route’).

Today’s ruling will make it easier for those British citizens (as well as those who intend to live in another Member State permanently) to visit the UK with their third-country family members. It would only apply to them if their family members have obtained a residence card from their host Member State, though. And it isn’t relevant for their family’s eventual return to the UK: that is still hindered in practice by UK rules which are breach in of the CJEU’s ruling earlier this year which clarified the position of such ‘returnees’ (that ruling is discussed further here).

What about citizens of other Member States who want to live in the UK with their third-country family members? The ruling really has little to do with them, since it only concerns short-term visits. It would be relevant to (say) a German woman with a Turkish husband living in Spain, if the husband has a residence card from Spain and wants to visit the UK with his wife. But it isn’t directly relevant to those who seek to settle in the UK, although in a future case the Court might apply it by analogy. EU free movement law is already generous to EU citizens who seek to move to another Member State with their third-country family members; but this judgment does not make it any more generous.

Overall, today’s ruling is a welcome and convincing interpretation of the free movement rules. It’s quite obvious that the EU citizen’s Directive does not allow anything like a ‘family permit’ requirement as a condition before waiving the visa requirement, since that would negate the whole point of that waiver. The Court simply (and correctly) dealt with the point about the ability of dual citizens of the UK and Ireland to rely on the rules in question, by distinguishing between short-term visits and longer stays. It’s also obvious that the UK’s Borders Protocol is subject to substantive free movement law, and only gives the UK the right to check if EU citizens and their family members have free movement rights, not to deny them entry if they do.

This brings us to the point about the ‘abuse of rights’. The Court’s judgment follows its traditional case law in holding that this principle can only be applied to individual cases, and it gives many convincing reasons for applying this interpretation in the context of the citizens’ Directive. However, the UK government demonstrated that there are a sufficiently large number of cases of fraud of residence cards to be concerned about. Such abuses of free movement law cannot be defended in principle, and undermine the legitimacy of the free movement regime for the large majority of British (and other EU) citizens who exercise free movement rights honestly. To address this concern, all Member States should agree in principle to introduce secure residence cards as soon as possible.  

Barnard & Peers: chapter 13

50 comments:

  1. Thanks again for the article and explaining the content. We need more!

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  2. There is an error in relation to the abuse of rights and contrary to what you state
    the UK government failed in the UK High Court and also in CJEU to offer any factual
    evedence to support their allegations of abuse.Spain in their both written submissions
    and oral evidence supplied hard facts that shone the light of truth into the UK's false
    allegations about abuse of residence cards,Dominic Greeves had to accept Spains factual evidence and made no effort to dispute these facts,he was called back into
    the witness box five times to give his an opportunity to dispute the evidence of Spain -Greece-Slovakia-Poland-European Commission,I really felt sorry for him as he was handed the poison chalice,to me Dominic is a Gentleman and I was the opposing force.

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    1. I read the UK government's submission, and there was certainly evidence that *some* people wrongly receive residence cards. See note 104 in the Advocate-General's opinion, which states that 2% of all residence cards were found by the UK authorities to be wrongly granted. No one is saying that the residence card was wrongly granted in this particular case, and I think the Advocate-General is also right to say that a 2% fraud rate doesn't count as 'systemic'. But I also think it's reasonable to argue that further steps should be taken to reduce the cases of fraud, by making the cards more secure - without in any way restricting the free movement of genuine family members such as your own.

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  3. With respect the AG is talking about 2% of the applications received and not residence cards granted.

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  4. The underlying problem is less one of fraud (although that exists as you note, at a low level) but of the multiplicity of document forms. This is not unique to residence cards: it is true (although to a dminishing extent) of driving licenses (of which I seem to recall nearly a hundred different models were in use within the EU even years after Directive 80/1263/EEC) and of identity cards. It gets worse in some cases: the fact that the UK does not issue mariner's licenses to private boating enthusiasts means that they may have no proof of qualification in other EU/EEA/Swiss countries that do (the practical workaround is a letter from a UK boating school, the kind of thing that reminds me of what I'm told the US State of Montana used to issue before they began issuing driving licenses based on a practical test: they gave one to anybody who asked and sent them a dollar.

    To lack of uniformity one can add lack of familiarity. I travel on a Swiss national ID card. In Poland and Romania I encountered officials who had never seen one before. Even in Italy where they must have done, when traveling the night train to Switzerland (favoured, I am told, by people smugglers) the Italian guard was less confident over its validity than his Swiss counterpart who obviously had one of his own. Even a magnifying glass was not much help to a border guard who didn't know what he was looking for. It might have helped if there were for residence and identity cards the equivalent of the "Bar Book" used in the USA by bartenders and night club bouncers to see what out-of-state driving licenses are supposed to look like.

    EU passports have been unified, at least on the outside, apparently by Resolution. Maybe some kind of uniformity would be useful in those other spheres. Except that, like Montana in those olden days, some Member States may not think they need, and not take seriously the EU requirement that they issue (secure) residence cards. (Montana wasn't the only latecomer to driving licenses and tests: https://www.fhwa.dot.gov/ohim/summary95/dl230.pdf )

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  5. In paragraph 3 you say that a residence card exempts third country family members from the need for a visa when they visit "along with the EU citizen family member". I don't understand where this often-repeated notion of accompanying comes from.
    EEA family permits required it, but they have been shown to be not in accordance with EU law.
    Neither 2004/38/EC preamble paragraph 8, nor Article 5 paragraph 2, make any mention of accompanying or joining. Nor can I see anything in the McCarthy judgment or the obiter that limits the exemption to those accompanying and joining.
    Doesn't the Directive make it clear that residence card holders are exempted full stop? Being exempted from the visa requirement is not the same thing as giving the right to work, or to reside - those do require accompaniment. But for a shopping trip to a neighbouring country, the residence card should permit a solo visit.

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    1. The notion of accompanying or joining the EU citizen comes from Article 3 of the Directive, which defines it's beneficiaries as EU citizens and the family members who accompany or join them. The CJEU has referred to this clause many times to define the scope of the Directive, including in the McCarthy judgment.

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  6. It is beyond question that all third country family members holding a residence card issued under Article 10 are beneficiaries under Article 3. That is proved by their possession of a residence card. The family members have done their accompanying and joining in the country that issued their residence card. My question is why is it assumed that they must also be accompanying and joining if they wish to use the visa exemption to enter another member state as a visitor.
    At least some countries, including the UK, give the same rights to Article 3.2 other family members (OFMs) as to Article 2.2 family members once they have decided to grant them entry and residence. In practice this means that OFMs obtain an identical residence card under Article 10.
    But, unlike the provision in Article 3.1, Article 3 does not place any accompanying or joining requirement on OFMs, so Article 3 cannot be the source of the requirement for at least this sub-category of residence card holders. See Aladeselu & Ors (2006 Regs - reg 8) Nigeria [2011] UKUT 253 (IAC) (01 July 2011) paragraph 14.
    It is true that 2004/38 Articles 6.2, and 7.2 require accompanying or joining for residence, but this highlights the absence of any such requirement in Article 5 – Right of Entry.
    Article 7.4 has the effect of excluding OFMs from its provisions. But this again highlights that they are not excluded from the provisions of Articles 5 and 6.
    The McCarthy judgement (particularly paragraphs 39 to 42) does not say that Mrs McCarthy must be accompanying or joining Mr McCarthy when she wishes to enter another member state. Indeed, paragraph 40 highlights “As is apparent from recital 8 in the preamble to the directive, that exemption is intended to facilitate the free movement of third-country nationals who are family members of a Union citizen.”
    There must be something obvious that I am missing, but I still don’t see why a teleological reading of the directive does not conclude that the intention was to permit a residence-card-holding family member living in Calais to make a day trip to London unaccompanied.

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    1. Article 5 could only apply to those who are covered by the Directive in the first place, ie they are beneficiaries under Article 3.1 or within the scope of Article 3.2. In fact in McCarthy the CJEU does repeat its usual statement that third-country nationals are only covered by the Directive to the extent that they are exercising rights derived from their status as a family member of an EU citizen. Where the Directive aims to give them rights independently such as on death or divorce, or permanent residence, it does so expressly. And Article 7.4 does not disapply Article 3.2 - rather it extends it to cover broader categories of family members (ie people who would otherwise be beneficiaries) when the EU citizen is a student.

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  7. Hi Steve, would appreciate some prompt advice here. I am a non EA national (Australian) who has been living in the UK for past 9 months, came in on a 6mnth family permit with my spouse an EU citizen (Italian). Subsequently I applied for my RC EEA2 which is still in progress since Nov. I am meant to travel with my husband to Austria on Sunday and am worried about re entry to the UK as I dont have a valid visa or family permit only my passport. I believe I can come in with my husband though as he is an EEA national who is exercising his treaty rights in the Uk by working fulltime and I am working full time too. I plan to bring legal marriage docs, payslips of his and mine contracts and proof of our lease contract in the UK as well as bank statements and bills. Can you pls tell me if we should have any issues as I believe under freedom of movement I should be entitled to renter the UK? Thanks

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    1. I can't give advice on individual cases. But in general, a non-EU citizen joining or accompanying an EU citizen spouse has to have proof of the family relationship and the other requirements set out in the citizens Directive. There is nothing in the Directive that allows for a family permit requirement. But there is a big gap between the EU law and the UK practice on the ground, so there is a possibility that the absence of a family permit could be a problem in practice.

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  8. Where can I find a copy of the citizens Directive which I can take with me to refer to? I eill also carry my COA (cert of application) to show my residence card is in progress.

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    1. There is a link to the Directive in this blog post. If this fails then Google Directive 2004/38.

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  9. Hi steve i don't know if you could be of help,we have been calling the UK embassy in Spain for information about the latest developments regarding the new law of Non - EU citizens married to EU member Visiting the Uk.I'm going to be direct, Im a Nigerian Living/Working In Spain For Over 8 years Married to a Spanish National which gives me right as an Eu family member with the resident card called (Comunitario)..Do We Need to secure a Family permit Visa to visit the Uk ? as we intend visiting for 2 weeks (Easter Period)Im really confused Duno If The Law Covers me...Thankz

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    1. I can't comment on individual cases. But someone in your position would not be covered by the McCarthy ruling since your spouse is living in her own Member State.

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    2. Thanks For The Reply U've Been Very Helpful

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  10. My partner is Spanish and hence EU citizen and I am a non-EU citizen. I have residence permit issued by Govt. of Spain. Both of us are currently living and working in Barcelona. So this new McCarthy ruling is of no utility to me as I would still need an entry visa and have to travel all the way to Madrid to get it for a week's trip to London. Am I right? It is so preposterous!

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    1. Since your partner lives in his/her Member State of origin you would not have a residence card under the citizens' Directive, and so not qualify for visa-free travel to the UK anyway under EU law.

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    2. According to The Immigration (European Economic Area) Regulations
      2006 : PART 2: EEA RIGHTS

      Right of admission to the United Kingdom
      11.
      —(1) An EEA national must be admitted to the United Kingdom if he produces on arrival a valid national identity card or passport issued by an EEA State.
      (2) A person who is not an EEA national must be admitted to the United Kingdom if he is a family member of an EEA national, a family member who has retained the right of residence or a person with a permanent right of residence under regulation 15 and produces on arrival—
      (a)a valid passport; and
      (b)an EEA family permit, a residence card or a permanent residence card.

      This can be negated if the EEA citizen is not accompanying the non-EU citizen.

      So how does UK still ask for a visa? Is it not going against the EU Law being itself part of EU?

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    3. The citizens' Directive does allow the UK (or other Member States) to require a visa for third-country national family members of EU citizens to enter, but that is subject to an exemption if the person concerned has a residence card. The wording of the UK rules appears to comply with this, but in practice the UK insists that the family members have the 'EEA family permit' referred to in the UK Regs as alternative means of proving the family link. Since the EU Directive does not authorise this condition, the UK is in breach of EU law for that reason, as the CJEU ruled in McCarthy.

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  11. Thanks for your reply, Steve. My point exactly! As in my case, I hold a residence card as a family member of EU Citizen and yet having to get a family permit to enter UK as proof that I am a family member of EU citizen kind of negates the point of the residence permit itself!
    Also, I have read in a separate article that the airlines have been directed not to let passengers of third nations board without the family permit. So I can't even get to the UK soil to prove the law!
    Anyway, I guess more and more people (including me) are getting aware of this breach of EU law and it would be corrected soon (for or against - but at the least no misuse or misinterpretation).

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  12. I have been sending emails to embassies of all EU countries and non-EU countries but part of Schengen Area (e.g. Switzerland) asking specifically about the requirement to be accompanied by my EU-partner (I am a TCN with a EU partner and live in Spain) and all of them said I can travel alone with my Spanish residence permit and valid passport. There is no requirement that my partner accompanies me!!
    I have travelled to Ireland without visa/Family Permit (Ireland is EU non-Schengen same as UK) with my partner. It is only UK which seems to have come up with its own laws about a Family Permit + accompanied by partner and it is either legal for it to do so or it is breaching the EU Directive (I will confirm after the EC replies to my complaint about this).

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    1. This is because the Schengen rules permit anyone with a residence permit from a Schengen state to travel in the Schengen area. The same is not true of free movement law which only applies to travel with the EU citizen. This is a separate question from the family permit rules which are a violation of free movement rules.

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  13. Mr Peers,
    I came to this site via "freemovement" where it seems the UK is taking a very narrow interpretation of the McCarthy judgment (in particular regarding how a residence card is issued - a point I am not clear on). My situation is that my wife and I are UK citizens (with UK passports) living in Belgium. Our son is adopted from Russia (and is living with us) and holds a Belgian residence card. Presumably, he qualifies as a non-EEA family member of an EEA citizen and therefore, post McCarthy, should not need a visa or family permit to enter the UK?
    However, I also assume that this judgment needs to be enacted before the change applies?

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    1. The UK rules to give effect to the judgment will apply from April 6th - I will blog on them on the next day or so. There is no CJEU case law on adopted children and free movement law, but it is usually assumed that the same rules apply. So a third-country national child with a residence card would not need a visa or (from April 6th) a family permit to visit the UK, but the UK rules still appear (in the way that they will likely be practiced) to require a family permit for that child to settle in the UK.

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    2. Thank you for that very clear reply which confirms what I thought. Later in the evening, after posting my message, I also found the SI that implements this change so all is good - hopefully in practice, not just on paper.

      Now, if only we could sort out how to get UK citizenship for him...

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  14. What is the situation of airline carrier sanctions regime, will the airlines continue to bar people from travelling to the UK?

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    1. Thanks for your question. In principle the airlines should have been informed by the UK of the revised rules as of April 6th, and should not apply sanctions. I don't know what is happening in practice.

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  15. my husband has a british citizen passport and as well my 8 month old daughter, we want to visit uk for two weeks i have article 10 residence card i got it from norway where we are staying. can i enter uk

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    1. I can't give advice on individual cases. But since the UK has implemented the McCarthy judgment on April 6th in principle someone in your position should be able to visit the UK for a short stay without a visa, although there might be some problems applying the new rules in practice. On the other hand the UK still expects people in your position to get an 'EEA family permit' in practice if you wish to stay for a longer period in the UK.

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    2. Dear Rahim, Hi, please enlighten me, I am in a similar situation and would be grateful if you could advise if were you able to enter the UK without a problem.

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    3. my wife and daughter both are british citizen and we all are living in italy and want to visit uk for two weeks i have article 10 residence card i got it from italy where we are staying. shall I travel to uk without eea family permit or still I need it

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    4. I can't comment on individual cases. In principle since the UK has implemented the McCarthy judgment someone in your situation would not need a visa or EEA family permit to visit the UK, as the residence card is sufficient.

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    5. Dear Steve you wrote above under "Comments":
      "Today’s ruling will make it easier for those British citizens (as well as those who intend to live in another Member State permanently) to visit the UK with their third-country family members. It would only apply to them if their family members have obtained a residence card from their host Member State, though."


      I am a British national, residing in the Netherlands and my wife is a non-EEA national from India who has an Article 10 residence card issued in the Netherlands.

      I am interpreting your comment and previous posts that "The McCarthy judgment means my wife does not need a visa or EEA family permit to vist the UK for a short stay", correct ?


      In addtion, how many "weeks" would qualify for a short stay visit ?

      Can anyone please share or confirm having their non-EEA spouse of a British national, being able to entry the UK without a EEA Family permit since 6 April 2015 ?




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    6. Hi Rajesh, I can't give advice on individual cases. The ruling should mean that non-EU family members residing with EU citizens living in another Member State do not need a visa or family permit to visit the UK with that EU citizen, if the non-EU citizen has an Article 10 residence card. The UK implemented the ruling in April 2015. The links there may shed more light on how long a stay this applies to (in the UK government's view). And I have read stories of a lack of knowledge of the revised law by carriers and UK consular officials in some cases.

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    7. More precisely I am referring to the links in this blog post on the UK's implementation of McCarthy: http://eulawanalysis.blogspot.co.uk/2015/03/the-uk-implements-eu-free-movement-law.html

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    8. Dear Steve, thank you very much for your quick reply.

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  16. Hi im pakistani i got spouse visa n my wife is british we want to go Spain for holidyddo i need visa for spain or we can go without visa

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    1. That depends on whether you live in the UK or another Member State. If the latter, you should not need a visa if you have the residence card referred to in Article 10 of the EU citizens Directive. If the former, you do need a visa but the process should be simpler because you will be travelling with an EU citizen.

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  17. I holds a comunitario Permanente residence card issued by Spanish Immigration. I got this after I divorced my Dutch citizen wife as our marriage lasted for three years and I was able to proove source of income to take care of my wife therefore I was told by the Spanish Immigration that I have the right to retain the status of comunitario. I want to know if I can travel to the United Kingdom and Ireland with my comunitario Permanente residence card

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    1. I can't give advice on individual cases. In general, my reading of the case law is that the CJEU always insists that the non-EU family member travels together with the EU citizen for any purpose under the Directive. There is the more radical view, however, that for the purposes of short-term visits, the third-country national with a residence card can travel and invoke the visa exemption by himself or herself alone. You can see the argument for that point of view (and the reasons I disagree with it) in the earlier comments on this post.. .

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  18. I want to know if in McCarthy judgement (2014) a non-eu spouse of a british national (who is exercising his eu treaty rights under surinder singh route IN Ireland) with temporary stamp4 awaiting her EUFAM4 residence card can accompany her british spouse to the uk for 1week without a family permit?

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  19. I hold a carta di soggiorno(eu permanent residence card), it has the following words stamped on ut:"Permanent residence card issued on behalf of an eu citizen family members who are not citizens of an eu member state" I'm from a non eu country (Nigeria),my mother is Italian citizen but works in the UK. Can I travel to the UK without a visa? Your reply and advice will be highly appreciated. Thanks

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    1. I can't advise on individual cases. In principle everyone with a permanent residence card issued to a non-EU family member of an EU citizen living in another Member State can visit (if travelling with their EU family member) another Member State without a short-term visa, according to the McCarthy judgment discussed here. The UK implemented this ruling in April 2015. However there are reports that some airlines are not properly applying this rule in practice, in part due to faulty advice from UK consulates.

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    2. Hello Steve,
      Your last point about airlines refusing to let non-European spouses with a permanent resident card (Irish Stamp 4 card this time) is still true. My Ukrainian wife was refused boarding a flight to Stockholm just last week. The Stansted airport Ryan air staff simply wouldn't have it! Even though I've proved to them that she is my wife (it says on her Irish visa wife of... EU family member). we had our marriage certificate with us but to no avail. They also could see that she travelled to Norway without visa in the past. This seems to be a British phenomenon as in all other EU countries that we have travelled to, we didn't encounter such problems. I am a British citizen living in Ireland. Following this incident, I have written to the Swedish Consulate and their reply was "she does not need a visa to enter Sweden as long as she travels together with you". I am considering taking Ryan air to court as I have lost money for 4 flights, hotels and we had to sleep in Stansted airport together with our 4 & 6-year-old kids for one night. Then we had to purchase tickets back to Ireland.
      Do you advise complaining to the airline and going to the Ombudsman or will it be better to pursue a claim in an Irish court (Ryan air is an Irish airline).

      Kind regards,

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    3. Quite obnoxious. Did they suggest in any way that they were acting on advice from a government? If not it raises the novel legal question of whether a private party is liable for infringing free movement rights (there is a case called Angonese that suggests that they are, although in a different context). It may be simpler to argue that it is an unjustified breach of contract, given that you had already bought the tickets. There are separate EU and international laws on passengers' rights. Best to contact a lawyer before any court action as I can't advise on individual cases.

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    4. Hi Steve,

      Thanks for the quick response.

      After radioing their boss the supervisor mentioned that they receive new instructions from the Swedish embassy on weekly basis and that these instructions change all the time. They also said that if they send someone to Sweden without a valid visa, they could face a fine of £300, to which I've said that I am willing to sign a document accepting liability for such penalty, should there be one.

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    5. I had never heard of passengers offering to refund the carriers' sanctions before. I wonder how many airlines would be willing to go ahead and accept the risk on that basis - and what the response by governments would be if they did.

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    6. That is to say that I was 100% sure that they were wrong about the visa requirement. I was proved right by the email received from the Swedish consulate which clearly said no visa was required.

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