Directive 2004/38/EC and "Residence Card/Permit" d

[ISO]

Greetings,
Firstly, apologies if this is the wrong place for this subject but I think it is related so please forgive if I am wrong.

In a similar situation to the couple wishing to travel to around Europe.
We are a UK based couple, one spouse English with UK Passport and one from Philippines with UK Indefinite Leave to Remain (Residence Permit)

We want to take a short break to Europe and catch a last minute holiday.
Problem is that although Directive 2004/38/EC states that spouse of EU citizens do not need a Schengen (see Article 5 Section 2) we are being advised by countries that we need to apply for a Schengen and submit all sorts of travel documents, insurance etc and money.

Yet, the guideline on the EU commission website to 'Get the best out of the EU Directive' at ...http://ec.europa.eu/commission_barroso/ ... _ec_en.pdf
states that even if under the Regulation (EC) No 539/2001 that a member state can insist on application for a Schengen, they cannot ask for anything other than passport and marriage certificate of the non EU spouse. So no travel documents, money or insurance is necessary (as per the EU Directive).

Interestingly, the guidelines issued by the EU to border control...
(Brussels, 06/XI/2006 C (2006) 5186 final)
“COMMISSION RECOMMENDATION
establishing a common "Practical Handbook for Border Guards (Schengen Handbook)"
to be used by Member States' competent authorities when carrying out the border
control of personsâ€

[86ti]

one spouse English with UK Passport and one from Philippines with UK Indefinite Leave to Remain (Residence Permit)

Have you been previously exercising your treaty rights in another member state and returned under the Surinder Singh ruling to the UK? If not, then the directive doesn't apply to you. ILR would indicate that your spouse is in the UK under UK and not EU regulations.

[ISO]

Thanks for your response but I don't understand what actually your referring to. Perhaps I did not make my query clear.

We live in the UK and work in the UK. I being born here and my spouse joined me and obtained ILR under UK immigration. The visa is entitled "RESIDENCE PERMIT" Leave to Remain: Indefinite

The Directive 2004/38/EC does apply to the UK and the citizens therein when they want to move around to other member states.

We simply want to travel to a European country (other than UK) for a short holiday at short notice. This Directive states that member states cannot require a Schengen from family member of EU citizens (that includes UK citizens by definition).

So I am trying to determine if anyone has just travelled and challenged successfully or is there a body/organisation that I can get advice from the EU on this matter.

Hope that clarifies things a bit.

Kind Regards in advance

[86ti]

Thanks for your response but I don't understand what actually your referring to. Perhaps I did not make my query clear.

We live in the UK and work in the UK. I being born here and my spouse joined me and obtained ILR under UK immigration. The visa is entitled "RESIDENCE PERMIT" Leave to Remain: Indefinite

Your query was very clear and the answer is still the same. Your spouse's permit was not issued under EU law and hence the provisions of the Directive do not apply to you. Sorry. You should get the Schengen visa for free though if you travel together. If you do not travel together it depends on the country you are applying to.

[ciaramc]

ISO - 86 is right, I will give you an example-

Me (Irish citizen born and raised) living in Italy for the past 7/8 years therefore exercising treaty rights! If I was to move home to Ireland with my non-EU spouse we would be granted a residence permit under EU law therefore covered by the Directive! Which means visa free travel, throughout Europe.....

Now if I had met and married my husband in Ireland we would have been married and issued with a residence card under Irish law whcih means my husband with need a visa to travel in Europe (but it would be issued straight away and free of charge?)???

[Ben]

(see Article 5 Section 2)

Right of entry
2. Family members who are not nationals of a Member State shall only be required to have an
entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national
law. For the purposes of this Directive, possession of the valid residence card referred to in
Article 10 shall exempt such family members from the visa requirement.
Member States shall grant such persons every facility to obtain the necessary visas. Such visas
shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.

Possession of UK ILR, granted in accordance with the UK Immigration Rules, is not possession of a residence card referred to in Article 10 of the Directive.

As has been advised by the others, your wife needs a visa. However, "Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure." (Article 5(2) of the Directive).

[86ti]

As has been advised by the others, your wife needs a visa. However, "Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure." (Article 5(2) of the Directive).

I do not think that the Directive is applicable in th OP's case and therefore also 5(2) doesn't apply but rather the relevant parts of the Common Conular Instructions and the Schengen Border Code with regards to family members.

[Ben]

As has been advised by the others, your wife needs a visa. However, "Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure." (Article 5(2) of the Directive).

I do not think that the Directive is applicable in th OP's case and therefore also 5(2) doesn't apply but rather the relevant parts of the Common Conular Instructions and the Schengen Border Code with regards to family members.

I have to disagree with you there, 86ti.

The provisions of the Directive apply to every citizen of the Union. ISO will be excercising Treaty rights as soon as her enters another Member State. The provisions of the Directive apply to him, and to his spouse.

[Plum70]

I have to disagree with you there, 86ti.
The provisions of the Directive apply to every citizen of the Union. ISO will be excercising Treaty rights as soon as her enters another Member State. The provisions of the Directive apply to him, and to his spouse.

ISO stated rather clearly that he would be holidaying with his spouse around Europe. In what way would he be exercising treaty rights? As a tourist? Frequent flyer? Adventurer perhaps? I don't think so!

The EU Directive certainly doesn't apply in this case UNLESS the OP was exercising treaty rights in another member state prior to settling in the UK; which he has confirmed is not the case.

[86ti]

I have to disagree with you there, 86ti.
The provisions of the Directive apply to every citizen of the Union. ISO will be excercising Treaty rights as soon as her enters another Member State. The provisions of the Directive apply to him, and to his spouse.

ISO stated rather clearly that he would be holidaying with his spouse around Europe. In what way would he be exercising treaty rights? As a tourist? Frequent flyer? Adventurer perhaps? I don't think so!

I think benifa refers here to the right to stay up to three months in another member state with no further conditions than a passport for the EEA national and a passport and maybe visa for the non EEA national (Article 6). The non EEA family members do have indeed the right to the privileged conditions of visa application but I am not sure if this really derives from the Directive.

[Ben]

I have to disagree with you there, 86ti.
The provisions of the Directive apply to every citizen of the Union. ISO will be excercising Treaty rights as soon as her enters another Member State. The provisions of the Directive apply to him, and to his spouse.

ISO stated rather clearly that he would be holidaying with his spouse around Europe. In what way would he be exercising treaty rights? As a tourist? Frequent flyer? Adventurer perhaps? I don't think so!

As a person who will be resident in the territory of another Member State for a period not exceeding 3 months.

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 EU Directive certainly doesn't apply in this case UNLESS the OP was exercising treaty rights in another member state prior to settling in the UK; which he has confirmed is not the case.

The provisions of the Directive apply to every citizen of the Union.

[Ben]

I have to disagree with you there, 86ti.
The provisions of the Directive apply to every citizen of the Union. ISO will be excercising Treaty rights as soon as her enters another Member State. The provisions of the Directive apply to him, and to his spouse.

ISO stated rather clearly that he would be holidaying with his spouse around Europe. In what way would he be exercising treaty rights? As a tourist? Frequent flyer? Adventurer perhaps? I don't think so!

I think benifa refers here to the right to stay up to three months in another member state with no further conditions than a passport for the EEA national and a passport and maybe visa for the non EEA national (Article 6). The non EEA family members do have indeed the right to the privileged conditions of visa application but I am not sure if this really derives from the Directive.

Exactly.

[Directive/2004/38/EC]

So, has any tried this with Italy, Greece, Spain or any EU country?

Yes. Entry into Ireland. Visa required for non-Eu spouse (who did have ILR but did not have a Residence Card). Irish border guards hemmed and hawed for 15 minutes, but clearly understood they had to let in the non-EU spouse. They issued a “visa warningâ€

[Ben]

[quote="Directive/2004/38/EC"]Yes. Entry into Ireland. Visa required for non-Eu spouse (who did have ILR but did not have a Residence Card). Irish border guards hemmed and hawed for 15 minutes, but clearly understood they had to let in the non-EU spouse. They issued a “visa warningâ€

[Directive/2004/38/EC]

Exactly.

In general if you require a visa, it easiest if you get a visa in the normal way and travel with that. Low stress and low hassle.

But if for some reason you do not have a visa, that does not mean you must not travel. You can still travel as long as you can otherwise prove (with Marriage certificate or birth certificate or old Residence Card or ???) that you have a primary family relationship with the EU citizen who you are travelling with. An emergency trip to visit a child in hospital, or an important quick business trip or to bypass a visa issuing office that does not understand their obligations under European law are all possible. Not easy, but possible.

[DFDS.]

[quote="benifa"][quote="Directive/2004/38/EC"]Yes. Entry into Ireland. Visa required for non-Eu spouse (who did have ILR but did not have a Residence Card). Irish border guards hemmed and hawed for 15 minutes, but clearly understood they had to let in the non-EU spouse. They issued a “visa warningâ€

[Ben]

Benifa, its been avery long journey to get this far, do we have to go back? at least not with you!

Sorry?

[Obie]

[/quote]

Directive, have I missed something? How do you feel it is lawful for a visa required non-EEA national spouse of an EEA national, to enter the territory of another Member State, in the company of her EEA national spouse, yet holding not a visa nor a valid Residence Card described in Article 10?

EDIT: I suppose Article 5(4):

4. Where a Union citizen, or a family member who is not a national of a Member State, does not
have the necessary travel documents or, if required, the necessary visas, the Member State
concerned shall, before turning them back, give such persons every reasonable opportunity to obtain
the necessary documents or have them brought to them within a reasonable period of time or to
corroborate or prove by other means that they are covered by the right of free movement and
residence.

So, marriage cert then.

Makes Article 5(2) somewhat pointless..[/quote]

In one of the ECJ ruling in MRAX Vs Belgium, the court ruled that there is nothing wrong or unlawful about a non-EEA Spouse traveling with their EEA spouse without a visa, even if they are so called visa required national.

In fact it made provision for them to be issued with a visa at the border if they can prove an existence of a relationship.

Therefore i think you are quite wrong in saying it is unlawful as the ECJ would not have ruled in its favour.
What is unlawful is the Irish authority putting a visa warning stamp in the non-eea spouse's passport.

I think you might need to revisit these laws again Benfica

[Ben]

Obie, did you not see the bottom part of my post that you quoted?

EDIT: I suppose Article 5(4):

4. Where a Union citizen, or a family member who is not a national of a Member State, does not
have the necessary travel documents or, if required, the necessary visas, the Member State
concerned shall, before turning them back, give such persons every reasonable opportunity to obtain
the necessary documents or have them brought to them within a reasonable period of time or to
corroborate or prove by other means that they are covered by the right of free movement and
residence.

So, marriage cert then.

Makes Article 5(2) somewhat pointless..

Anyway, in the top part of that post of mine, I didn't say it was unlawful - I asked Directive how he feels it is lawful. Not quite the same.

In any case I was, at the time (and quite carelessly), forgetting about Article 5(4), so edited my post accordingly.

Phew. Anything else?

[Obie]

Benfica i think It is best for us not to go into the study of semantics on this forum.
However according to your line of questioning which a lame man will understand, you were questioning the legality of a non-EEA spouse of an EEA national without a resident card issued under directive 2004/38EC entering the territory of a member state without a visa.

If you were not questioning the legality, then my profound apology.
However it is hard for one not to draw to my conclusion on the basis of your questioning.

If however you acknowledge the marriage certificate clause, why was the question asked in the first place.

I would appreciate if you can clarify you position.

The ECJ considers expulsion for reasons other than Public policy, Security or health to be unduly disproportionate, which is why they ruled in MRAX's favour.

In an ideal world it will be nice for people to obtain the visa without any hindrance or unnecessary obstacle which member state illegally try to impose. But as you will probably acknowledge it is not most of the time the case especially with Ireland and UK.

The visa is not an approval of ones right to enter a member state, as the right exist purely on the basis of the marriage. Member state can only confirm that right full stop. They have shown complete incompetence or lack of understanding in implementing this.

Thanks
Obie

[Ben]

I would appreciate if you can clarify you position.

Sure Obie.

Clarification:

I agree 100% with what you said.

In my post on Sat Mar 21, 2009 at 9:27 am, I quite carelessly, for a few seconds, forgot about Article 5(4) of Directive 2004/38/EC, which states very clearly that visa-required family members have the right of entry, even without a visa and without a Residence Card, if they are able to corroborate or prove by other means that they are covered by the right of free movement and residence.

I realised my careless mistake immediately after posting, and so edited my post accordingly. I apologise profusely for my error.

I hope that provides adequate clarification for you Obie.

Seriously, anything else? Or am I off the hook now?

[Obie]

Seriously, anything else? Or am I off the hook now?

Benifa you were never on the hook. You are a respected member and contributor to the forum, as i have seen valuable and accurate advise you have provided myself and others in the past and at present.

I was just a bit unclear about the retraction you subsequently made , as i thought it was pointing to lack of clarity on Article 5. Forgive my oversight.

It is vital that the information we obtain from this forum is as near perfection as possible, as some of us use it when dealing with government department.

It has indeed help me obtain some positive response from DOJ lately.

Regards
Obie

[Ben]

Thanks Obie, glad we cleared that up then.

Must remind myself to wake up a bit sometimes, before posting, so that kind of thing doesn't happen again. I can be on this site at the crack of dawn sometimes, and at night when everyone else at home is sleeping, and my wife's nagging me to pay more attention to her than "a load of strangers on that bloody forum again!"..

All jokes aside though, I'd hate to ever mislead anybody - it could be detrimental to the individual. Apologies again for any confusion.

[charles4u]

Thanks Obie, glad we cleared that up then.
my wife's nagging me to pay more attention to her than "a load of strangers on that bloody forum again!"...

Not just you...lol...thats why I took some break in this last few months combine with I was a bit busy also.

[Obie]

Thanks Obie, glad we cleared that up then.

Must remind myself to wake up a bit sometimes, before posting, so that kind of thing doesn't happen again. I can be on this site at the crack of dawn sometimes, and at night when everyone else at home is sleeping, and my wife's nagging me to pay more attention to her than "a load of strangers on that bloody forum again!"..

Benfica i am sure no one for a minute doubts your commitment and vocation of assisting and providing advise to worried and distraught members who would otherwise be unable to afford the 100 euros fee for legal consultation.

I understand your wife's unease about the time you spend on the forum which is priceless. Try and get adequate rest when it is needed.

I am sorry if i in any way add to your stress.