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Filipino spouse refused facilitating visa under 2004/38/EC

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chrispaulc
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Filipino spouse refused facilitating visa under 2004/38/EC

Post by chrispaulc » Mon Feb 13, 2017 5:22 am

Hi everyone. I'm posting in the hope that someone here can help my wife and I with our current visa situation.

I am an Irish national, and my wife is a Filipino national. We are hoping to move to the Netherlands exercising EU Directive 2004/38/EC. Our application was submitted at the embassy in Manila, Philippines on 12/12/16. Having informed the embassy of the entitled expedited process, we were told that we should receive feedback within 15 days. On 28/12/16 we were informed that the visa application had been forwarded to the IND in the Netherlands for further information. This morning we learned that the facilitating visa has been refused, and we believe that this is incorrect.

Despite the application being submitted in English, we received our visa refusal letter in Dutch.We spent the morning attempting to translate the letter, and this is the response we were provided with:
Rationale
The purpose and conditions of the intended stay was not sufficiently demonstrated. YOU indicated in your application that you want to qualify for a visa and thereby appeal to Directive 2004/38/EC. However, you have no or insufficient shown to you as a family member of an EU citizen travels with those EU nationals or to will stay in a Member State other than the Member State of which he or she is a national. Considering this you are not eligible for the requested visa.

No flight reservations have been made to show that you are traveling together, neither is evidence submitted which suggests that you plan to join the EU citizen in the Netherlands. The purpose and conditions of the intended stay was not sufficiently demonstrated. YOU indicated in your application that you want to qualify for a visa and thereby appeals to Directive 2004/38/EC. However, you have no means of objective and verifiable evidence demonstrated that you can be regarded as a family member of an EU national, as defined in Article 2, paragraph 2 or Article 3, paragraph 2, of the Directive. Having this will not eligible for the requested visa.

There is doubt as to the authenticity of the Philippine marriage. There is no evidence of verification by the Irish authorities.
The documents which we submitted at the embassy in Manila were:
- My wife's Filipino passport
- A copy of my Irish passport
- An original copy of our marriage certificate, including a certificate of authenticity from the Department of Foreign Affairs in the Philippines.

This is all of the documents we were told we needed to include in our application to satisfy the requirements.

1. Firstly, we informed the embassy at the time of submitting the application that we intended to travel to the Netherlands together, and exercise my freedom of movement rights under EU Directive 2004/38/EC to plan to settle there. As far as I am aware, there is no requirement under this directive that I already by residing in the Netherlands.

2. I was also under the impression that travel itineraries etc. could not be requested, and certainly that a lack of confirmed travel is not the basis of a refusal.

3. Article 2, paragraph 2 etc. states that my wife needs to show that she is eligible by being the spouse etc. of an EU national. We were under the impression that a copy of our marriage certificate, authenticated by the Department of Foreign Affairs in the Philippines, would satisfy this.

4. There can be no doubt as to the authenticity of the Philippine marriage, since the marriage certificate itself has been certified to be genuine. They did not request visa stamps, flight itineraries, photos etc. to show that our relationship is genuine.

We were told that we have two options - to reapply, or lodge a formal objection to the visa ruling. I do not accept the reasons for the visa ruling. Am I right in thinking that, with the information provided, a visa should have been issued for my wife under EU Law?

The appeals process seems like a very long and drawn out procedure, even more so since we are situated in the provence where mail takes a very long time. Would it be worth just applying again, or are they likely to refuse he visa again on the same grounds?

Any help appreciated.

lidia_9
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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by lidia_9 » Mon Feb 13, 2017 9:29 am

Hi,
Sorry to hear about their decision,

Please explain
Which authority issued the marriage certificate ?
Did irish embassy legalise marriage certificate if it was issued in philipine?

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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by jul1 » Mon Feb 13, 2017 9:06 pm

For the Schengen visa they are asking for the plane tickets, but u can price reserve them on some websites, many people confirmed that they accepted it, cost is about 10eur.

The documents you submitted and the plane ticket should be enough for the visa, there is a chance they think you have a marriage of convenience, actually they should give a proof about that but of course they wont bother with it and could not even show anything.

Ireland cant prove anything about the authenticity of your marriage as foreign marriage is not possible to register in Ireland (and in UK, but it is possible in most of the EU countries).

Now if you apply for another Schengen county for EUTR visa they could think for you nothing matters just to get in but eventually u might have to do that.

Now you can either appeal the decision which can take up to 6 or more months, or reapply and state that you applied before but was declined, maybe this is faster.

Also try to explain them or if possible show any paperwork about your intentions, like holiday or you want to get a job and settle down.

chrispaulc
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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by chrispaulc » Tue Feb 14, 2017 3:10 am

lidia_9 wrote:Hi,
Sorry to hear about their decision,

Please explain
Which authority issued the marriage certificate ?
Did irish embassy legalise marriage certificate if it was issued in philipine?
The marriage certificate was processed by the Office of the Civil Registrar General and issued by the National Statistics Office (NSO) in the Philippines. It was authenticated (like an apostille) by the Department of Foreign Affairs in Manila, Philippines.

According to the this site "Marriages of Irish citizens abroad are normally registered in the country where they occur. The General Register Office has no function in the registration of marriages of Irish citizen(s) that take place abroad, or in advising on such marriages. Marriages that take place outside the State are not registered in Ireland."

Therefore, since the marriage certificate issued in the Philippines is valid in Ireland, it should be valid for the visa application under 2004/38/EC?

jul1 wrote:For the Schengen visa they are asking for the plane tickets, but u can price reserve them on some websites, many people confirmed that they accepted it, cost is about 10eur.

The documents you submitted and the plane ticket should be enough for the visa, there is a chance they think you have a marriage of convenience, actually they should give a proof about that but of course they wont bother with it and could not even show anything.

Ireland cant prove anything about the authenticity of your marriage as foreign marriage is not possible to register in Ireland (and in UK, but it is possible in most of the EU countries).

Now if you apply for another Schengen county for EUTR visa they could think for you nothing matters just to get in but eventually u might have to do that.

Now you can either appeal the decision which can take up to 6 or more months, or reapply and state that you applied before but was declined, maybe this is faster.

Also try to explain them or if possible show any paperwork about your intentions, like holiday or you want to get a job and settle down.
I think we are going to go down the road of reapplying, and going overkill with the paperwork. The appeals process is going to be too long and tedious and, honestly, will likely be rejected again anyway. The only potential issue is that the embassy in Manila will refuse to accept the additional information that we provide. Quite frankly, after reading over the reply from the IND in the Netherlands a few more times, I am not completely convinced that our marriage certificate was ever forwarded with our application.

I am hoping that booking a flight a little further in advance and booking a hotel for a few nights should provide enough evidence that we are intending to travel together. I'm quite afraid that if we do this, they will refuse the visa again on something else, or bring up again that they question the legitimacy of the Philippine marriage.

Thank you both for your advice.

lidia_9
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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by lidia_9 » Tue Feb 14, 2017 6:56 am

Hi,
Actually i and my wife going through pretty same condition, we have applied in french embassy under tge same directive and decision should be with us in couple of days, i am hoping a positive decision. Lets see....
In your case I am assuming that they are questioning legitimacy of marriage, and if you would apply again you might have the same result, my advice is to go Irish embassy in philipines and ask them to legalise your marriage certificate, they will just put one stamp on the back of your certificate. In my opinion thats only what you need. If thats not possible try contacting netherlands embassy n discuss your problem. I hope you will find a way out of this situation. Good luck

chrispaulc
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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by chrispaulc » Thu Feb 16, 2017 4:03 am

I eventually got speaking to someone helpful at the IND in the Netherlands.

It seems that the problem is not that they are accusing us of having a marriage of convenience, but rather are questioning the legitimacy of the certificate of marriage itself. Whomever made the visa decision was evidently not satisfied with the certificate being an official document - likely stemming from the fact that the certificate is essentially a scan of the marriage contract we signed, with parts of it typed on a computer and parts typewritten in on the day. Surely the attached certificate of authenticity should have eliminated any doubts?

I hope that we can get the document legalized by the Consulate in Manila, otherwise I don't know what to do now.

lidia_9
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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by lidia_9 » Thu Feb 16, 2017 9:12 am

Hi,
Try to be at consulate both of you maybe it will give you a plus point

gokulatti
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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by gokulatti » Wed Mar 01, 2017 10:34 am

Hello,

I am an indian national in holland on a eea family permit and I am happy to see you have decided to move to netherlands, it is such a beautiful country. I hope everything turns out ok.

First off, let me shoot off some pointers, the third country nationals have to right to freedom of movement DERIVED from the EU national EXERCISING their freedom of movement. therefore as a spouse of an EU national your wife and any descendants should qualify for eea family permit ONLY if you exercise your freedom of movement in another member state. exercising freedom of movement can be proved i believe by 1.work 2. study 3. living with sufficient funds etc.

So just hoping/planning to move to holland would not be sufficient but you need to prove it, cos even if hopefully your wife does get the MVV for coming to holland, her application for submitting 'verfication against EU law' should also be accompanied by an application for the EU citizen exercising their treaty right following which the EU citizen will get 'verblijfsaantekeningen voor gemeenschapsonderdanen' sticker, which by default is not required for the EU citizen if they are on their own, but is mandatory if they have planned to bring in family.

I think, for the mvv of your wife to come to holland, it would be advisable you make concrete plans i.e flight tickets/rental contract in holland etc to show that your wife is indeed coming to join you IN holland, point to remember is that your wife's application for verification against eu law can be applied within 3 months after her arrival in Netherlands not necessarily immediately. which should give you enough time for renting out, registering in BRP etc.

Hope this is useful!

lidia_9
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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by lidia_9 » Wed Mar 01, 2017 8:04 pm

Hi,
Actually you gave some vital information

lidia_9
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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by lidia_9 » Wed Mar 01, 2017 8:04 pm

Hi,
Actually you gave some vital information but it is not really necessary for eu citizen to be physically present in holland for her non eu spouce visa. I think i m right here, bcz i have applied for exact same visa but from pakistan n its been a month n i m waiting for decision whereas I submitted all legalised documents.
My worry is that eu directive is being applied correctly or not...?

gokulatti
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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by gokulatti » Thu Mar 02, 2017 9:28 am

Hi, directive 2004/38 applies if the third country national is travelling with the EU national or joining the EU national in a host member state, if the EU national is not physically present in host member state, then the third country national will have a lot of explaining to do. But maybe the EU citizen is already registered in Holland before and temporarily is away?.

In any case, for Netherlands applying for a eea permit from Pakistan will only be given a MVV (entry visa) so as to travel to Netherlands while waiting for EEA permit. The Actual EEA permit will take up to 6 months (both MVV and EEA permit can be applied at the same time while in pakistan) and will be issued when the ind believes the EU citizen is exercising treaty rights (can be proved easily) and therefore third country national has right of residence. you can google the form "application against EU law" where all the documents are listed.

mgb
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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by mgb » Thu Mar 02, 2017 10:27 am

It looks like you mixed up some things.
Article 5 of the eu directive give the right of entry for eu citizen and his family members if accompany or join.
Article 6 give the right of unconditional stay for 3 month for eu citizen and family members. It doesn't matter which plans they make for the time after the 3 months.

gokulatti
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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by gokulatti » Thu Mar 02, 2017 12:59 pm

hi, here is the extract of article 6
"Article 6
Right of residence for up to three months
1. Union citizens shall have the right of residence on the territory of another Member State for a
period of up to three months without any conditions or any formalities other than the requirement to
hold a valid identity card or passport.
2. The provisions of paragraph 1 shall also apply to family members in possession of a valid
passport who are not nationals of a Member State, accompanying or joining the Union citizen"

the think the confusion revolves around what if the union citizen is not physically present in the host member state. I don't think 2004/38 is triggered until a EU citizen is actually exercising their rights in another member state.

mgb
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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by mgb » Thu Mar 02, 2017 3:31 pm

2004/38 is triggered if the eu citizen make plans to cross the border to the guest country. See article 5 right of entry. The first 3 month are unconditional.

lidia_9
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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by lidia_9 » Thu Mar 02, 2017 9:41 pm

Hi,
Here i agree with mgb, directive is triggered as the eu citizen make a plan to cross border with family members.
Well i am already waiting for more than a month for the visa to be issued by french embassy but it doesn't seem to be coming my way. Well i gave them travel dates of 5 march and its two days to go. I didn't gave confirm flight booking. It was only the itenarary. But the marriage certificate was legalised from me and my spouce's country plus marriage is registered in eu county as well and that marriage certificate is also legalised from pakistan embassy.
I have sent them an email three days before but still no reply. Best of my knowledge, visa should be issued as soon as possible but i have read other posts on this forum too and it doesn't seem that directive is being applied correctly especially in asian and african countries. It is discouraging for us really bcz our plan is getting disturbed with this inconvenience.

gokulatti
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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by gokulatti » Fri Mar 03, 2017 12:03 am

I am sorry I disagree, here from directive 2004/38

" Article 3
Beneficiaries
1. This Directive shall apply to all Union citizens who move to or reside in a Member State other
than that of which they are a national, and to their family members as defined in point 2 of Article 2
who accompany or join them."

Planning to move to and move to are two different things, plans can be changed.

for example, say a french citizen plans to move to Netherlands due to work, has an indian spouse who is in seeking entry to Netherlands to live with his/her spouse from India, lets say Indian national gets an entry visa by the Netherlands. consider this situation, what if the plan to move to Netherlands for the french changed and is no longer wanting to move to Netherlands? and decides to stay back in France? now in this situation shouldn't the spouse apply for the french spouse visa/entry visa based on french law?. unless the french national actually moves to (gets on the train/bus to Netherlands or travelling together from India with the spouse or already resides in Netherlands) they don't come under EU law.

maybe this helps further "http://www.diritticomparati.it/2011/05/ ... idenc.html "

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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by mgb » Fri Mar 03, 2017 6:35 am

Beaming from one country to the other is not possible. You have to make plans necesserally. If the eu citizen declare in writing that he want to move to the guest country together with his family members or wait for them at the airport 2004/38 is triggered.
The right of free movement is a basic right in the EU. It cannot be denied on basis of a lame excuse.

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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by lidia_9 » Fri Mar 03, 2017 8:07 am

Ok but here is the thing,
Eu citizen arrives in paris at 9 am , non eu spouce arrives at 11 am same day. They want to visit france for few days. Does this directive apply?

gokulatti
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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by gokulatti » Fri Mar 03, 2017 10:08 am

mgb wrote:Beaming from one country to the other is not possible. You have to make plans necesserally. If the eu citizen declare in writing that he want to move to the guest country together with his family members or wait for them at the airport 2004/38 is triggered.
The right of free movement is a basic right in the EU. It cannot be denied on basis of a lame excuse.
Now that is more than just planning isn't it?, which is what I am trying to say. declaring to move to the host country or arriving at the airport.

I am open to intellectual debate but not going to entertain plain sarcasm.

chrispaulc
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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by chrispaulc » Wed Apr 05, 2017 7:44 pm

It's been almost two months since I made this post so I figured I would provide an update.

It took two weeks from the time we were issued with the refusal letter for the embassy of the Netherlands in Manila to return my wife's passport. The amount of time and energy it took to get talking to someone who could help us find out where it was and when/how we could collect it is absolutely ridiculous.

Rather than appeal the visa decision, my wife and I decided we would reapply at the embassy in Manila. We included:
- Price-reserved flight itinerary.
- Photocopy of my Philippines entry stamp and visa extensions to show that I was still with my wife in the Philippines.
- A letter from my wife's friend in the Netherlands stating that she would be providing us with accommodation while we get set up with a place of our own, complete with her BSN and a copy of her passport.
- Our Philippine-issued marriage certificate, complete with legalisation seal and certificate from the Department of Foreign Affairs in the Philippines.
- A document from the Consulate of Ireland in Manila 'certifying' the authenticity of our Philippine-issued marriage certificate.
- A cover letter from myself, stating my intention to move to the Netherlands exercising my right to freedom of movement and residence within the EU, and that my wife was to accompany me.

While we were told that we needed flight reservations, the woman I talked to at the IND in the Netherlands stated that a planned itinerary of the flight (ie: the airline name, flight number and date) we planned to take would be suffice, and that we were not required to book flights as part of the visa application. This makes sense - how can anyone be expected to spend €600 on flights when they don't know if the visa will be issued in time, if at all?

Well, sure enough, we received an email from the consul in Kuala Lumpur (who must process all applications for the region) that our application had been forwarded once again to the IND in the Netherlands and that they had an additional 45 days to get back to us with our visa result. Seeing as how the last visa refusal letter had been issued a full ten days before we received it, and that they exercised the entire 45 days last time, this likely means that we will have to wait until May 7th to find out if the visa has been issued or not.

Quite frankly, my wife and I do not feel optimistic about this application either. What should be a simple process - you provide your requirements, the visa is issued quickly - has been nothing short of stressful. The likelihood is that the visa will be refused again, either because they are still unsatisfied with the marriage certificate, or because we had not actually shelled out the €600 each on flights to the Netherlands (the price-reserved flights we provided are for next week). Because we feel so pessimistic about this application, we have decided that I should travel ahead to the Netherlands, and I will be arriving this coming Monday 10th April. If the visa application is approved, my wife comes to join me in May. If it is refused again, we reapply providing proof that I am already in the Netherlands and that she is to join me. A process that should have taken two weeks has now taken three months.

I wonder if it is worth contacting the IND to tell them that, due to the delay, I will be arriving in the Netherlands next week. Would that help my wife's visa application, or would we be better to wait until we receive the result?

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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by lidia_9 » Thu Apr 13, 2017 11:44 am

I wish you best of luck my friend, i m going through same case n it is frustrating delay.... do you have any update?

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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by Sincejan » Fri Apr 21, 2017 12:01 am

need help
@lidia_9
I'm a Pakistani national and my wife is Spanish national.
We got married last year November in Pakistan. We planned to meet and spend sometime together in France.
I applied to French embassy clearly staying on cover letter that I will be Joining my wife in France under the free movement law.
I was asked to provide the tickets and hotel booking which I did along with marriage registration certificate attested by foreign ministry. On interview day I was asked to get my marriage certificate legalised by Spanish embassy. My application was taken and after few days I got a refusal saying my marriage doesn't constitute to be valid. I sent my marriage certificate to Spanish embassy and got the registration certificate legalised.
I again applied in French embassy. On interview day I was treates really badly by the frencFrench embassy now asking me if I had REGISTERED my marriage with Spanish embassy. I told them I was asked to get it legalised only. They took my application and again same refusal.

I have checked with Spanish embassy and registro civil takes more than a year. Please help what should i do.
There's nowhere in EU law which say register the marriage with embassy. Can anybody guide me any other ways. Please help

lidia_9
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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by lidia_9 » Sat Apr 22, 2017 12:12 pm

Can you ask your wife to register marraige in spain? Its actually easy

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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by Sincejan » Sat Apr 22, 2017 7:58 pm

Bro can you give me information regarding that please

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Re: Filipino spouse refused facilitating visa under 2004/38/

Post by chrispaulc » Sat Apr 22, 2017 8:59 pm

lidia_9 wrote:I wish you best of luck my friend, i m going through same case n it is frustrating delay.... do you have any update?
We received word this week that my wife's visa was approved, and she has picked up her passport with the visa sticker enclosed. The stress and frustration that this process has caused, when it should have been quite simple, is ridiculous and we are very glad that it is over and that we can begin a life together in Europe.

I wish you the best of luck with your application, and I hope you get it sorted soon.

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