Directive 2004/38/EC thread

[virtual-writer]

The Article "Travel rights for non-EU nationals closely defined", that you've mentioned must be old (why don't they put dates on them?!!).

If you look carefully, they only mention the Schengen acquis and not the Directive of 2004. Secondly, the last paragraph talks about a "new proposal", but that proposal is from 2001.

[Docterror]

The Article "Travel rights for non-EU nationals closely defined", that you've mentioned must be old (why don't they put dates on them?!!).

If you look carefully, they only mention the Schengen acquis and not the Directive of 2004. Secondly, the last paragraph talks about a "new proposal", but that proposal is from 2001.

I guess that it is indeed outdated. How else can we explain it? But not updating the website for 6 years or 2 years at the least? I don't know how that is possible!

[geoffsinclair]

The website says "Update March 2003" on the top right corner.

[Docterror]

The website says "Update March 2003" on the top right corner.

Phew, Thanks!

[Prawo]

How the visa free travel works in practice?
This happened one of the first days of May 2006 (the first week of the directive having to be implemented).

A Dutchman with his Pakistani wife was refused entry on the boat from Dover to Hoek van Holland.
This happened after Stena Line contacted the Dutch border control, that pretended not to know anything about visa free travel.
He called his Dutch lawyer (that foresaw there could be a problem and kept himself reachable). The lawyer contacted the Dutch Solvit centre, that called their contact person at the Dutch IND. This intervention caused the Dutch border guard (KMAR) to review its information to Stena Line in Dover.
The family now could board the evening boat.

[Prawo]

See also the case of the Italian student and his Russian wife, referred to in EU document.

Directive 2004/38/EC makes travelling easier for family members who previously had to have an entry visa. No more visas for visits to the United Kingdom or any other Member State that does not yet participate in Schengen when the family members who do not hold nationality
of a Member State have a residence card.
Angelo (24), an Italian studying biophysics in the Czech Republic, and his Russian wife Svetlana (23) are planning to visit their friends in Glasgow for two weeks in summer. When they called the UK embassy in Prague to arrange for a visa, they were surprised to learn that the new EU directive on free movement exempted Svetlana from the visa requirement as she holds a Czech residence card.

[Prawo]

How visa free travel looks after one year?

In May 2007 the Iranian parents of a Dutch national travelled (with their daughter) from Germany to the UK.
All three of them live in Sweden on the basis of (now) directive 2004/38/EC, with the proper residence card.

Boarding in Germany involved a lot of discussion with Ryan Air ground staff and involved a telephone call to the IATA representative, that did not know about the visa free travel, but could be convinced.
Upon arrival at Stansted, they were about to be refused entry and send back. UK immigration was completely ignorant. It took two hours before they seemed convinced about the right for visa free travel, though they insisted the visa should be given at the border. So passports were stamped.

Note the father forgot to take his Swedish EU residence card, but had the birth certificate of the daughter at hand. So his right of entry came under the Brax ruling of the EC court.

[Prawo]

Same Dutch Iranian party travelled two weeks later from The Netherlands to Poland (in Schengen only end of December 2007).

No problem boarding KLM, because the days before KLM and their IATA specialist were informed.

In Warsaw same situation as at Stansted. Now it took an hour and a half before visa free entry was agreed.
Though passports were stamped, which is not allowed.

[Docterror]

Prawo, welcome to the boards and thanks for the examples. But it rather is sad to see that even after more than an year since the Directive came into force, it still is a hard thing to get it consistently enforced by the various national governments.

The ferries from UK to France seem to have loosened up now-a-days and I hope the changes will also be seen in the major airports soon.

[virtual-writer]

http://immigrationboards.com/viewtopic.php?t=18979

[Docterror]

So, where do I start?

The Romanian border control at the Baneasa airport was as expected- grumpy and half asleep. But they were kind enough to know that the UK issued 'Residence Card' holder did not need the visa and the only question they asked was for how long we were staying. Just as I saw that they were going to stamp the passport, I tried to stop them and said that it was not to be done under EU laws, to which they said that under Romanian laws it MUST be done. Did not see any point in arguing further and more importantly I was too tired.

The oppurtunity to do just that arose at the Giurgiu- Russe border to Bulgaria. Now they were nice to us as well, but since the first person did not understand a word of English, we were ushered over to the 'Sefu'(Chief) who in his broken English agreed to let the 'Residence Card' holder and his wife in even without a Bulgarian visa, but insisted that it was out of a provision in the Bulgarian law and that Bulgaria has not yet signed up to implement the Directive 2004/38/EC. He also insisted this provision is for ones who already hold a 'Residence Card' and will not be extended to ones who arrive at the border with the wife and marriage certificate, but without the visa as they will need proof that the marriage is genuine before granting admission.

So, in a nutcase, from what I feel, Romania is a bit too lenient in implemeting the Directive while the Bulgarians may be a bit too tight in this aspect. But nonetheless, the bits and pieces of the power of the Directive is clear and hopefully it will get regularised in due time.

[mym]

insisted that it was out of a provision in the Bulgarian law and that Bulgaria has not yet signed up to implement the Directive 2004/38/EC.

They have (as I expect you know):

http://www.ambsofia.um.dk/NR/rdonlyres/ ... RINGBG.doc.

[Docterror]

Yes, indeed they have! But, inspite of the ignorance, the land border control knew about the practicality of the law, where hardly any international travellers cross the border.

It must be much more easier to get it executed in an airport where the IOs will be a bit more informed about the whole thing.

[Richard66]

When I called the attention of the British authorities to the fact that they should, according to the Directive, accept the residence cards from ALL Member States and showed them a letter from the European Commission stating this quite clearly, this is what they had to say, through their spokeswoman in Solvit:

I am grateful for sight of the attached letter. This advises that the Commission does not agree with the UK interpretation of the Directive. Until such time as there is a legal judgement which defines the position, our position remains unchanged. You are of course entitled to apply for a visa under UK national rules, as a British citizen. Alternatively, the Commission has advised that you have the right to seek redress through the courts.

(For those who don't know, I live in Italy, exercising treaty rights)

Does anyone remember the story of the soldier who couldn't march and kept looking at the rest of the army and commented he was the only one who was right?

[mym]

New visa application forms (VAFs) will be introduced worldwide on 29 October. Visa application centres and visa sections overseas will not accept old application forms after 9 November 2007.

The new visa application form relevant to this thread is

Application form VAF5 - EEA Family Permit

[Administrator]

.

Thank you all for filling this topic with so many excellent resources and such good information.

Sticky that.

Please keep the content value high and the noise levels low, folks.

Thanks,

the Admin

[clairey]

My husband and I are planning a trip to France at Christmas, so I emailed the French Consulate to ask if my husband required a Schengen Visa, given the Directive and our experience in Portugal in the summer. They emailed back with:

"Please check our website."

On the website in FAQ it says:

I have a valid British residency. Do I need another visa to travel to France?
As the UK is not part of the Schengen group of countries, you may need a Schengen visa to travel. Please go to ’Do I need a visa’ web page for further information.

So I go to 'Do I need a visa?', select Albania for my husband and hey presto, it says he needs a visa. Nothing mentioned about what to do if you are the spouse/partner of an EU citizen.

So I emailed back and said with all due respect, you have not answered my question. Has France implemented the Directive, and if so, can my husband travel to France without a visa, with me and our marriage certificate. Silence..... not a word out of the French in over a month and a half!!

[archigabe]

France seems very difficult in respect to issuing shengen visas to E.U family members.Sometimes they even demand fees from host family, letter from the local mairie verifying host family,sketches and plans of host accomodation...it can get quite ridiculous sometimes.
Contact SOLVIT France to complain about France's breach of the Directives.

http://www.ec.europa.eu/solvit/

[mym]

The confusion in this issue arises because the visa that must in principle be issued under the Directive is issued in practice according to the Common Consular Instructions of the Schengen Agreement.

Some interesting info from a reply from an EU Law expert:

Regretably, at present the Schengen Agreement does not make a distinction according to non-EU nationals who have no family ties to EU citizens and those who are family members exercising their EU rights to free movement. As a result, the consular authorities currently apply the requirements of the Schengen Agreement in full as regards the documentation necessary for the issue of visas.

We will be making the European Commission aware of a discrepancy between, on the one hand, the right of non-EU citizens who are family members of EU citizens to have visas issued _as soon as possible and on the basis of an accelerated procedure_ and, on the other hand, the burdensome documentary requirements contained in the Common Consular Instruction Manual issued under the Schengen Agreement.

It will then be a matter for the European Commission to propose any amendment to the rules to ensure that non-EU family member can fully enjoy an _accelerated procedure_ for the issue of Schengen visas.

However, at this stage, we can only advise you to comply with the request for information made by consular officials in accordance with the Common Consular Manual.

[irish_ruskei]

Hi, I am Irish and my wife is Russian, we have been married since 2004 and have travelled outside Ireland a few times since then (always getting a visa first, for my wife) My wife has what here in Ireland is called a "Stamp 4" residence card,it is called a GNIB card (Garda National Immigration Bureau), allowing her leave to remain in Ireland by virtue of marriage to an Irish citizen. In my wifes Russian passport there is an Irish multi entry D-visa (it doesn't go any higher than D) valid until almost 2010 with "spouse of Irish national" wriiten on it. A few days ago I contacted the Latvian embassy in Dublin (we were thinking of going to Latvia for a holiday) and I was told under an E.U directive my wife did not now need any type of visa to travel to Latvia (or any other E.U state).....this was of course great news!

Following that we thought about changing destination and going to Moldova (flying via the UK and Romania or flying to Moldova via Lithuania....all E.U states) As a Russian my wife doesn't need a visa for Moldova, nor do I as an E.U citizen. Anyway, most of the embassies are closed over the xmas period but we need to go ahead and buy our tickets!!! Can we go ahead and buy our airline tickets (they are not exactly cheap!) and rest assured that my wife can enter any E.U country without a visa as long as we travel together? I believe we can?

I have tried to contact the European Commission in Dublin but they will not be open until tomorrow, I 'll try then too. I have spoken to someone at the Irish Foreirn Ministry but they are not too sure! It's almost laughable. It seems that although there is a E.C directive that some states have not implemented it or something? So, we are trying to figure out if firstly my wife would be allowed to board the plane to wherever we decide to go and if not what could we do? (If it is E.U law that she should be allowed to travel with me without a visa then can the airline stop us? And if they do are they not breaking the law?...even if they do not know about this directive...after all ignorance of the law is no defence)

Also, what happens when we get to, lets say, Bucharest....and immigration there decide to refuse entry to my wife? Maybe they do not know about the directive also?!!! If they do that aren't they also breaking the law? So in effect are the police and authorities breaking the law?!!! (I have contacted the Romanian Embassy and was told that my wife needs a visa?!!!....he mumbled something about a problem with the directive and that maybe in January my wife wouldn't need a visa?....I thibnk they make it up as they go along!)

Basically, can we travel to any E.U State without my wife having to get a visa? Any info is more than appreciated. Thanks.

[mym]

Basically, can we travel to any E.U State without my wife having to get a visa? Any info is more than appreciated. Thanks.

Yes, take your wedding certificate and a copy of http://ec.europa.eu/commission_barroso/ ... _ec_en.pdf

[irish_ruskei]

Basically, can we travel to any E.U State without my wife having to get a visa? Any info is more than appreciated. Thanks.

Yes, take your wedding certificate and a copy of http://ec.europa.eu/commission_barroso/ ... _ec_en.pdf

Thanks for the info!We will probably go! I will definetly phone around tomorrow, various embassies, Irish Foreign Ministry, Solvit and European Commisssion in Dublin tomorrow. Will report back all I find out. Thanks again,mym.

[irish_ruskei]

Basically, can we travel to any E.U State without my wife having to get a visa? Any info is more than appreciated. Thanks.

Yes, take your wedding certificate and a copy of http://ec.europa.eu/commission_barroso/ ... _ec_en.pdf

Is it a good idea to also email the airline(s) we will be travelling with and inform them that despite what they may think (ignorance of the law is not a defence) that my wife does not need a visa to travel to a member E.U State and to inform the airline(s)that should they refuse boarding they will be violating the free movement of my spouse as enshrined under directive 2004/38/EC and thereby breaking the law and that we would seek redress againest, and compensation from, the airline(s)? What does anyone think? Thanks

[irish_ruskei]

Basically, can we travel to any E.U State without my wife having to get a visa? Any info is more than appreciated. Thanks.

Yes, take your wedding certificate and a copy of http://ec.europa.eu/commission_barroso/ ... _ec_en.pdf

Hi, I am a little confused, I have read the link and one paragraph stands out in particular:

Those family members who are not nationals of a Member State
(so-called third country family members) may enter the host Member
State with a valid passport. If they come from certain countries
which are subject to visa obligation, they may be required to have
an entry visa. Countries whose nationals are subject to visa are
listed in Regulation (EC) No 539/2001, or under national law in the
case of the United Kingdom and Ireland

Russia is on the list of countries lited in Regulation (EC) No 539/2001. My wife is Russian.

But then it also states:

Your family members cannot be automatically turned back at the
borders if they do not have a valid passport or, if required, an entry
visa, when they are able to prove by any other means that they are
covered by the right of free movement and residence by establishing
their identity and family ties with you

Could anyone clarify this please?Thanks.

[Tobbe]

In the case law C-459/99 it says in the judgment:

http://curia.europa.eu/jurisp/cgi-bin/f ... resmax=100

"1.On a proper construction of Article 3 of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, Article 3 of Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services and Council Regulation (EC) No 2317/95 of 25 September 1995 determining the third countries whose nationals must be in possession of visas when crossing the external borders of the Member States, read in the light of the principle of proportionality, a Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health within the meaning of Article 10 of Directive 68/360 and Article 8 of Directive 73/148."

So they should issue the visa at the border control but be warned that sometimes border guards are not so clued up on EU laws. If you can then get a visa before you go (although not hassle free it's free of charge and less to worry about). My wife is a visa national and we have successfully travel without visas on several occasions BUT we have also been refused entry on one occasion. Make sure you have your marraige certificate with you and the phone number to Solvit if you decide to go without. We have never got any hassle from the airlines.