Non-EU wife of a British citizen in Italy

[thsths]

It would be much more coinstructive, instead of opting out of everything, and distancing itself from the EU, to try to be its leading nation. This "opting-out" seems to be getting contagious and now every single country seems to want to opt-out of something: "I want the Euro but I don't want to give working rights to Bulgarians", I don't want the Euro but I want student quotas" and so on. We'll get to the point you won't be able to cross the border without having to study thoroughly how "EU" the country you're going to is.

I know this is getting a bit off topic, but I think the situation is not as bad as it seems. In fact, there is very much a "core Europe", which is more or less defined by the Euro zone. Schengen is another important contract, and the list of countries is pretty similar. Eventually, all the new member states will have to decide whether they are part of "core Europe". The UK is most certainly not willing to be part of the inner circle, so it will always stay at the periphery.

[JAJ]

I am still to see a reasoned argument why the EU is so bad. All I hear are impassioned comments about the loss of "sovereignty", about Brussels bureaucrats and lack of accountability and so on. I am not aware any country has lost its independence after Maastricht and I fail to see that the conditions imposed by the EU any tougher than those imposed by any other international treaty.

It's not a question of whether the EU is "good" or "bad." It really boils down to whether or not the United Kingdom wishes to remain an independent nation, with its own goals and objectives, its own identity in the world and a political and judicial system that is quite different from the Continental European norm.

When does a state become or cease to be a sovereign state? Mere economic or political co-operation and interdependency does not cause loss of sovereignty, by any reasonable definition of the term. However there does come a point where if a state cedes much of its own lawmaking authority, ceases to have its own currency and monetary policy and ceases to have a distinct citizenship and control over its borders, and perhaps ceases to control its own armed forces, then that state ceases to be a sovereign state. It is difficult to pinpoint the precise point at which this occurs, especially when there is a fundamental lack of honesty and transparency from those in authority in that state.

Maastricht did not take away the sovereignty of the member states of the EU. Nor did the treaties of Amsterdam and Nice which followed it. But all of these have brought closer the point at which the EU ceases to be a community of independent states and becomes a country of its own.

[Richard66]

The Euro in the end was a good thing, in that it did stop certain governments printing money irresponsibly. If anyone has lost sovereignty I don't know. There are sovereign nations around the world (non EU) that use someone else's currency. There are also nations that have no armed forces and they are just as sovereign. Scotland has its own judicial system, different from England, but how sovereign is each of these?

How long would a "sovereign" nation (that is, a loner) survive in today's world?

Going back to topic... About marriages of convenience... There are ways to find them... But considering that all marriages are marriages of convenience? I'm not sure I'd want ECOs reading the letters I wrote to my wife. I'd much rather a policeman came over to my house and looked over. Anyway, who wants to be a party to such a marriage? Would I accept a lump sum for it and then find out I need to "divorce" after a number of years, that I'd have trouble really getting married? A game like this in Italy will cost you at least 5 (yes, five) years of your life, not counting the annoyance. It's just not worth the candle and usually only old men and people with addictions go in for it.

[avjones]

I am still to see a reasoned argument why the EU is so bad. All I hear are impassioned comments about the loss of "sovereignty", about Brussels bureaucrats and lack of accountability and so on. I am not aware any country has lost its independence after Maastricht and I fail to see that the conditions imposed by the EU any tougher than those imposed by any other international treaty.

I'm not an anti-EU person, but there are some specific issues that I do have:

(1) The budget - the auditors have just refused to sign off the accounts for the 13th year in a row;

(2) The culture - for example, the sacking and justification for sacking the EU's accountant, Marta Andreasen. There often seems to be a contempt from the Brussels' ivory towers;

(3) The democratic deficit.

[JAJ]

The Euro in the end was a good thing, in that it did stop certain governments printing money irresponsibly. If anyone has lost sovereignty I don't know. There are sovereign nations around the world (non EU) that use someone else's currency. There are also nations that have no armed forces and they are just as sovereign. Scotland has its own judicial system, different from England, but how sovereign is each of these?

How long would a "sovereign" nation (that is, a loner) survive in today's world?

http://en.wikipedia.org/wiki/Declarativ ... _statehood is as good a place as any to start learning about the subject.

[Richard66]

As I had promised myself, I have today sent my complaint to the European Commission. As the UK authorities have climbed down in the last weeks, I only really speak of the residence card en lieu of a short-stay visa. I did, however, mention the Visa/EEA FP question, the EEA forms and the Italian border police.

I suggested the EU adopt a standard model for the residence cards, that the Directive in future mention Surinder Singh cases and that the definition of the latter should include all citizens exercising treaty rights, and not only those employed or self-employed: that is, also self-suffiecient people and students.

Let's see what happens now.

[Richard66]

An update...

We've heard from the European Commission yesterday. The main points:

1- As the wife of an UK citizen exercising treaty rights in Italy and in possession of an Italian residence card, she may accompany me to the UK with no need for visas or pseudo-visas (EEA FP).

2- Article 5 of Directive 2004/38 refers to any residence card issued by any member state. If the legislator had meant that a residence card should only be valid for entry into the country that issued it, this would have been indicated. (My aside, if the latter were true, the EEA would have been stepping into the field of competence of national law.)

3- Our file has been added to other complaints againt the UK that the Commission is now examining.

4- Our complaint has been officially and the case will proceed.

When the fine comes...

What a waste of the taxpayer's money this will be!

[Directive/2004/38/EC]

2- Article 5 of Directive 2004/38 refers to any residence card issued by any member state. If the legislator had meant that a residence card should only be valid for entry into the country that issued it, this would have been indicated.

If you read the Directive, it is NOT clearly written on this point, at least in the english version.

Article 5 refers to "the" Residence Card of Article 10, which does not explicitly or implicitly say that all residence cards are created equal.

3. The host Member State shall not place an entry or exit
stamp in the passport of family members who are not nationals
of a Member State provided that they present the residence
card provided for in Article 10

Ireland and UK have used the ambiguous wording to carefully specify that it is only Residence Cards issued in the UK and Ireland which provide for visa free entrance.

[Ben]

Richard66, did you and your wife actually get to the UK in the end?

[mym]

Richard66, did you and your wife actually get to the UK in the end?

Read back up this thread, the whole story is here.

[Richard66]

Just a question, I've posted the same message three times and I can't delete 2 of these posts (one is this one), and I edited the other to read abc. What do I need to do?

[Richard66]

abc

[Richard66]

Well, yes and no. I agree on this point:

If you read the Directive, it is NOT clearly written on this point, at least in the english version.

But you must remember the Directive refers to EU law, and not national law. The UK permitting a UK residence card to enter the UK is surely a matter for UK legislation, isn't it? It seems to me that EU law cannot legislate there in this sense. A second thought would be: wouldn't it be absurd if a UK residence card holder had to secure a visa in order to go to the UK? Let's put it another way: can you imagine a Russian residence card holder needing to apply for an entry visa to go to Russia?

The lack of clarity has allowed the UK in bad faith and in the sly (after all, you need to read the definition of a residence card in order to see that the relevant article that apparently is in accordance to the Directive isn't) to "restrict" illegal immigration.

Also, if all an UK citizen needs to do to avoid paying £500 for a exorbitant visa fee for a visa which might be denied (in Italy it would be a free FREE and MANDATORY visa) is to go to any other EEA country and then come back, it won't be long until the UK will need to revise this part of the immigration rules.

Just for the record, this is not my case, as I have never actually lived in the UK, so I could never be accused of coming to the UK to duck UK law.

[JAJ]

An update...

We've heard from the European Commission yesterday. The main points:

1- As the wife of an UK citizen exercising treaty rights in Italy and in possession of an Italian residence card, she may accompany me to the UK with no need for visas or pseudo-visas (EEA FP).

2- Article 5 of Directive 2004/38 refers to any residence card issued by any member state. If the legislator had meant that a residence card should only be valid for entry into the country that issued it, this would have been indicated. (My aside, if the latter were true, the EEA would have been stepping into the field of competence of national law.)

3- Our file has been added to other complaints againt the UK that the Commission is now examining.

4- Our complaint has been officially and the case will proceed.

When the fine comes...

What a waste of the taxpayer's money this will be!

Unlikely even to be more than a rounding error in the U.K. national finances.

And in any case, merely a transfer of funds from one wasteful government to another even more wasteful entity.

[Richard66]

I've come across this on the Internet site of the European Commission:

Action brought on 19 mars 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

Case C-122/08 (2008/C 116/32)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: Mr M. Wilderspin, Agent)

Defendant: United Kingdom of Great Britain and Northern Ireland

The applicant claim that the Court should:

— declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 (1) on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, or in any event by failing to communicate them to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under the Directive; — order United Kingdom of Great Britain and Northern Ireland to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be transposed expired on 30 April 2006.

I don't know yet if this is in response to my complaint (I am yet to be notified) but it's welcome news! I note there are no "ifs, buts or maybes" either: it's plain: "you have NOT done what you SHOULD have done"!

[mym]

We can but hope, Richard.

Now for a 10 year court case...

[Richard66]

Well there, see what I managed to wriggle out of the Citizen's Signpost Service:

Richiesta inviata il
10/12/2008

Richiesta
57689: Dear Sirs,

I am a British citizen exercising treaty rights in Italy as a worker. I am therefore covered by Directive 2004/38. I am married to a Russian citizen, ****, who also works in Italy. She has been issued with a residence document (Permesso di Soggiorno - Permit of Stay) with all the characteristics of the "Residence card for a family member" as specified in Article 10 of Directive 2004/38, notably, the reason her stay is "famiglia" (family) and she is described as being a "coniuge di cittadino comunitario" (wife of a community citizen) and my name, as her husband, is clearly stated: ****". It is valid for 5 years, that is, from 23 August 2007 to 06 May 2011 (the 06 May 2007 being the date she first entered Italy).

While the UK does not deny I am covered by Directive 2004/38 (see The UK transposition of the Directive: Immigration (European Economic Area) Regulations 2006, Article 9) and the UK also recognises that the first 3 months of residence are unconditional, therefore allowing also visits to the UK, they still insist that visa-nationals obtain an EEA Family Permit, a visa-like document valid for six months and which, in my wife's case, can only be obtained by her going personally to Rome and furnishing an extensive list of documents (which the British Embassy describe as "optional", but which they "recommend" should be submitted. They also require she should be biometrically identified (fingerprints and a digital photograph)at the Rome headquarters of the "commercial partner" of UK Visas: Worldbridge.

None of this is provided for in Directive 2004/38 and is therefore in direct violation of Article 5, 2 of the Directive, as my wife is in possession of the "valid residence card referred to in article 10".

My understanding is that my wife, if accompanying or joining me in the UK, needs no visa or EEA family permit, as she is in possession of the Italian residence document (Permesso di soggiorno-permit of stay.) Why then does the UK insist that she apply for an EEA Family permit? What should I do in this situation, as we want to go to the UK in the next two months? What is the European Commission doing to bring this infringement to cease? And, most importantly, Article 11, (2) of the Immigration (European Economic Area) Regulations 2006 says:

(4) Before an immigration officer refuses admission to the United Kingdom to a person under this regulation because the person does not produce on arrival a document mentioned in paragraph (1) or (2), the immigration officer must give the person every reasonable opportunity to obtain the document or have it brought to him within a reasonable period of time or to prove by other means that he is—

(...)

(b) a family member of an EEA national with a right to accompany that national or join him in the United Kingdom; (...)

If my wife will surely be admitted to the UK, together with me, if we can prove our family relationship (marriage certificate, Permesso di Soggiorno, Italian identity card), what instruments of pressure do we have at our disposal so that the carrier will not deny us boarding, as carriers have not been correctly informed by the UK authorities?

I look forward to hearing from you.

Yours sincerely,

***/***

Risposta
Dear Mr Richard66,

Thank you for your enquiry.

As you correctly point out the UK is currently in breach of Article 5(2) of Directive 2004/38 by requiring third country nationals who are family members of EU citizens residing in another EU country to obtain an EEA family permit in order to enter the UK. The UK should be recognising residence cards issued under Article 10 of the Directive but its implementing rules (the Immigration (EEA) Regulations 2006, Regulation 12) do not allow for such a facility.

Given the consular authorities’ insistence that your wife obtain an EEA family permit, we suggest that you contact SOLVIT, the EU’s online problem-solving network of public administrations to see if they can assist you in resolving the issue:
http://europa.eu/solvit/site/index_en.htm

We recommend that you contact SOLVIT by completing this on-line form:
https://webgate.ec.europa.eu/solvit/ind ... anguage=en

You should also know that the European Commission is responsible for monitoring the application of all EU legislation by EU countries. It is currently examining the progress made by member states in implementing Directive 2004/38. In some cases, it has initiated infringement proceedings against the Member States who failed to implement the Directive or failed to communicate details of implementing legislation.

See for example the Commission’s proceedings against the UK and others:
http://europa.eu/rapid/pressReleasesAct ... &format=HT

In addition, the European Parliament is currently conducting an in-depth survey into the application of the Directive in all member states. The CSS is participating in this endeavour and has identified the issue you have raised as one of the problems in implementation of the Directive. The research into the report is on-going as we write and should be published in 2009. We hope that it will address key recommendations to rectify problems such as the one you have identified.

Unfortunately, as in all matters relating to the enforcement of legislation in general, it will take effort and some court cases before the national law fall into full compliance with EU legislation.

Whilst the process may seem lengthy, please rest assured that considerable attention is being paid to the implementation of the Directive to ensure that citizens can truly enjoy the rights contained in the Directive.

We hope this answers your query.

Yours sincerely,

Citizens Signpost Service

A little bit at a time...

[mym]

Thanks for keeping us updated.