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Travel with EU Citizen,residence & work-Directive 2004/3

Immigration to European countries, don't post UK or Ireland related topics!

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Steve Manley
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Travel with EU Citizen,residence & work-Directive 2004/3

Post by Steve Manley » Fri Sep 22, 2006 7:07 pm

This has probably been mentioned already on this forum quite a bit, but a friend recently wanted some information on this and since I'm well aquainted with the current situation I sent her an email which I'll also post here. All of this is in regard to Directive 2004/38/EC:

Some links for you. The first link is to the actual Directive 2004/38/EC submitted to the European Parliament on 29th April 2004 (if i remember right) and which SHOULD HAVE come into effect within all of 25 member states on 30th April 2006. The main point applicable for someone just travelling about with their EU spouse for vacations of less than 3 months is in Article 5.2. (there's a bit of a typo in the English version which at the top states it's Directive 2004/58 instead of 2004/38... it should read 38)

http://europa.eu.int/eur-lex/lex/Notice ... isu=#texte

The second link is to the UK Home Office website which shows that the UK was one country that has actually implemented this legislation on the correct date. Very few have.

http://www.ind.homeoffice.gov.uk/lawand ... memohc1053

Third link is a simple explanation version of this Directive.

http://europa.eu/scadplus/leg/en/lvb/l33152.htm

There are quite a few countries who have yet to transcribe this into their national law... I know Spain has not yet done so and according to a letter I have from the European Commission this legislation is binding from the end of April of this year and enforcible by the European Commission. The EC has taken out an infringement procedure against Spain among others for not yet implementing the law. I'll just quote what it says in the letter:
"The respective provisions of the Directive concerning the visa requirements meet the test developed in the jurisprudence of the European Court of Justice and are directly applicable. As a result of that, you can rely on the Directive against any national provisions which are incompatible with the Directive."
Basically if a country still stubbornly uses defunct regulations legally they haven;'t a leg to stand on. Finally it's interesting what this last link says regarding the consequences of countries not applying this new legislation and turning people away... they'd better be ready for lawsuits!

http://www.ecas.org/file_uploads/1081.p ... 20spain%22

Here's the quote from the link that I thought was good:

"Despite the considerable importance of
the Directive and the fact that nearly two
years passed since it has been adopted,
authorities in many EU countries still
over-regulate the entry, residence and
work of EU citizens as well as of non-
EU nationals. After a meeting between
representatives of the European Commission
and Member States at the end of
January this year, it appears that some
Member States will not be able to implement
the Directive within the deadline.


The absence of a correct transposition
into national law will result in the application
of the doctrine of direct effect,
which means that the Member States
might encounter a large number of compensation
claims, and the European Commission
will be forced to launch infringement
procedures. To be ready for such a
development national officials have to be
informed of the requirements of the Directive
and special measures are to be
developed to face situations where national
rules conflict with European ones."

This Directive would I think be of interest to many on this forum, particually those who are married to a EU Citizen and have to mess around with Schengen visas and nasty/difficult Consuls.

tt
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Post by tt » Sat Sep 23, 2006 9:21 am

Very interesting, Steve Manley.

----
!. Have you got a list of those EEA (+Switzerland) countries that have NOT implemented 2004/38/EC yet?

----
2. Is there anywhere on the EU website that lists who has and who hasn't implemented specific Directives like this one, and that lists legal action pending against EU states for non-compliance?

----
3. Have you got a list of those EEA (+Switz) countries that have made registration compulsory after 3 months residence? (For example, the UK does NOT do this).

----
4.To get the registration certificate after 3 months, the EEA (+Switz) citizen has to show (a)sufficient funds (="sufficient resources for themselves and their family members not to become a burden on the social asistance system of the host Member State"), and (b)"comprehensive sickness insurance cover in the host Member State".

The quality control of this varies between the EEA countries, and I am wondering how far they can go for such proof.

Some countries ask for the EHIC Card only, as proof of sickness insurance.

For proof of sufficient funds, it varies from country to country, I believe. Some are arguing the extent of proof demanded goes beyond the meaning of the Directive, and is contrary to its spirit.
For example, perhaps some of these things are necessary, but some are not :-

bank statements
address of residence
proof of ownership or (long-term) lease of residence (notarised)
duration and purpose of stay
mother's maiden name
criminal conviction certificate (notarised)
questions about AIDS or other health risks

Some States even go further and demand reason/purpose of stay and if you say employment, for example, then further employment type documents are required. But I am guessing this latter type of request is of the pre Directive 2004/38/EC era and will be phased out.

But the other requirements listed above are there in EEA (+Switz) countries that have purportedly already introduced this new Directive.

----
Appreciate your comments!

Steve Manley
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Post by Steve Manley » Sat Sep 23, 2006 4:11 pm

To be honest my interests are really only within the realm of "family members" of EU Citizens and their rights when travelling within the EU, not relocating for work and for stays of longer than 3 months. I haven't the time to do too much digging myself. All I could quickily find was this largely unhelpful link which may be updated and prove more useful in the future. If anyone else knows more perhaps they could post it here, do a little research themselves.

http://europa.eu.int/eur-lex/lex/LexUri ... T#FIELD_BE

Just FYI my Colombian wife and myself will be travelling to Spain (having nothing but her Colombian passport with UK residence permit & our marrage certificate-NO SCHENGEN) to see if we get in & how difficult it will be. I strongly believe those with close family links to EU Citizens shouldn't be treated the way they are... we'll see how it goes and I'll post what happens here! Although Spain hasn't implimented this law, it IS a part of current EU legislation - in my view a country either is or isnt a member state, it shouldn't be able to pick and choose.

tt
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Post by tt » Sat Sep 23, 2006 5:36 pm

Well... it/Spain can't. Unless it deselects itself from the EU process, I guess. Re EU Family Members, my Questions 1. and 2. are still relevant, and would be interested if you had found any further info about these...

Subject to what Spain is doing with the EU Directive laws, it seems under the Directive you mention that your wife through you will do just fine in Spain. I can't see Spain making any problem about this, but let's see.

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Post by JAJ » Sat Sep 23, 2006 8:10 pm

Steve Manley wrote: Just FYI my Colombian wife and myself will be travelling to Spain (having nothing but her Colombian passport with UK residence permit & our marrage certificate-NO SCHENGEN) to see if we get in & how difficult it will be.
If Colombian citizens need a visa to visit Spain, this plan may get her no further than the airline check-in desk.

Steve Manley
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Post by Steve Manley » Sat Sep 23, 2006 9:14 pm

Yeah I know but that's according to the Schengen Agreement and we're trying to enter the country on EU Legislation that should have been implimented already... and apparently is in the UK. It seems there shouldn't be any exit requirements from this country for someone holding a residence permit & travelling with their EU partner.

We'll see what happens tomorrow.

Just found this:

http://www.ncadc.org.uk/newszine74/EAA-rules.html

"On 30 April 2006 the United Kingdom implemented Directive 2004/38/EC on the Free Movement of Persons. The Immigration (European Economic Area) Regulations 2006 transpose the provisions of this Directive into UK domestic legislation. The Regulations will be available shortly on this website. All European applications made on or after 30 April 2006 will be considered in accordance with these Regulations and with the revised European Casework Instructions (ECIs) which will also be available shortly on this site."

The Immigration (European Economic Area) Regulations 2006:

http://www.opsi.gov.uk/si/si2006/20061003.htm

smalldog
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Post by smalldog » Sun Sep 24, 2006 2:34 am

Hi Steve,

Good luck in your attempt to exercise our new rights! As JAJ said, the greatest hurdle is likely to be the airline check-in desk. They will um and ah for a long time before getting their computer to tell them that a visa is required, so you will have to be very persistent just to get onto the plane. If you manage to get to Spain I think your wife would be admitted but on the basis of being issued a Spanish visa on the spot rather than rights deriving from her UK residence permit. Don't expect to get out of the airport too quickly!

But thanks for trying this out and please do let us know how it goes.

tt
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Post by tt » Sun Sep 24, 2006 5:30 am

That's right. Once you've got on that plane* and arrived in Spain, the entry officer in Spain will see that your Columbian wife will need a visa to enter Spain (Directive 2001/539/EC).

However, under Art 5(2) of the main Directive in discussion (Directive 2004/38/EC) the issuance of such a visa would be free and be an accelerated procedure.

Art 5(4) of 2004/38/EC states:-

"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"

which indicates the possibility, at least in the mind of the EU, that such a visa might be issued on the spot (see smalldog's suggestion).

However, it seems your wife may enter Spain without that visa if she has the EEA Family Permit, or a Spanish residence card or Spanish permanent residence card

The UK Regulations (SI 2006 No. 1003), which reflect directly Directive 2004/38/EC, suggest (regulation 12(1)) that even the UK entry officer must issue the EEA family member with an EEA family permit if the EEA national is or will reside in the UK. THe same would be expected with Spain, if the right legislation and regulations were properly in place. (Whether they are or not is in question).

So, your wife enters Spain:-

1. on the basis of a Spanish visa either obtained in advance or on arrival on the spot, or

2. on the basis of an EEA Family Permit either obtained in advance or on arrival on the spot.

The only questions raised here are whether the Spanish authorities are going to comply with the EU Directives, as they should, and do any of this stuff on the spot.

smalldog
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Post by smalldog » Sun Sep 24, 2006 5:49 am

tt wrote:That's right. Once you've got on that plane* and arrived in Spain, the entry officer in Spain will see that your Columbian wife will need a visa to enter Spain (Directive 2001/539/EC).
Well, that all depends on Spain's interpretation of 2004/38/EC article 5:
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.
But does "the valid residence card" mean a card issued by the country being entered or a card issued by any EU state? Press releases such as the following show that the European Commission intended it to mean a residence card issued by any state. However the UK doesn't accept this interpretation and I don't know of any countries that do.
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.
From http://europa.eu.int/rapid/pressRelease ... anguage=en

tt
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Post by tt » Sun Sep 24, 2006 6:19 am

I was taking the "safe" version of Art 5(2) 2004/38/EC along the lines of the UK Regulations (SI 2006 No. 1003), but was quietly aware of the differing interpretation possibilities. I would like to see "residence card" to mean of any EU (and presumably EEA+Switz) state. It seems the states in question do not.

But that Art 5(2) suffers from some deficiencies, such as not mentioning the permanent residence card or the EEA Family Permit, and credit to the UK Reg drafters that these were included in the UK Regs.


Your (or rather, the EU website's) example of Angelo and Svetlana might not infact have been one based on Svetlana's Czech Residence Card. As mentioned already, the UK Regs allow for the immediate issue of an EEA Family Permit on arrival to the UK by the entry officer (Reg 12(1)), whereby Svetlana would not need a visa to enter - and it is quite possible the UK embassy in Prague were aware of this.

However, I would like to think it was on the basis of the Czech Residence Card.

tt
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Post by tt » Sun Sep 24, 2006 6:42 am

On second reading of the Regs, my confidence in the drafters is now not as high as it was.

First, the definition of "EEA Family Permit" only extends so far as "a document issued to a person, in accordance with regulation 12, in connection with his admission to the United Kingdom", and not just any old EEA Family Permit.

Second, Angelo would not have been able to arrange the EEA Family Permit for Svetlana without showing that he himself

"will be travelling to the United Kingdom within six months of the date of the application and will be an EEA national residing in the United Kingdom in accordance with [the UK] Regulations on arrival in the United Kingdom" (Reg 12 UK Regs SI 2006 No. 1003).

Steve Manley
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Post by Steve Manley » Sun Sep 24, 2006 7:35 am

Thanks all for your comments. About to leave now...

We also have a letter from the European Commission explaining that my wife (it mentions her name) should according to EU law, be let into Spain as long as she is with me and holds a valid Passport-it mentions that she may also require a residence permit "issued by an EU member state". That permit will take the place of any visa requirement.

Basically I'm hoping that no airline will want to be seen not to be keeping the law of the EU (and UK for that matter if this directive has been adopted here) and this might let us through. I have a bunch of telephone numbers to local & national newspapers with me which I would call if the airline doesn't let my wife through on the basis of the new legislation & the letter we have from the EU Commission.

The way I see it either the airline check-in desk sides with Spain (who is already in trouble for not yet implimenting these laws) or it sides with the EU Parlement & lets us in.

Once/if we're in Spain... anything goes really. I would agree with the comments that it would be unlikely we'd be turned back OR let in on the basis of this Directive, but probably just given a one-trip short-stay Schengen or something. We'll see.

I'll post later or tommorrow (hopefully in Spain!) and let you know what happened.

Steve Manley
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Post by Steve Manley » Wed Sep 27, 2006 9:41 am

Ok, for anyone still interested... we got through. Whether this is a lesson in the strength of Directive 2004/38/EC or one in the incompetency of airline check-in staff & Entrance police checks, judge for yourselves (I suspect it´s the latter)

We queued up at Luton airport ready for a fight to get my wife in, armed with our passports and lack of Schengen visa. The check-in person had a quick thumb through our passports and issued the boarding passes. She did re-check my wife´s passport but asked no questions as to the lack of a visa. Even less problems through security. Upon boarding the plane the person did wonder at my wife´s lack of visa to which I replied she no longer needed one from April of this year. That got us on board the plane.

Upon arrival in Spain our big problem was the security staff who did notice she held no visa and being one of the few thrid-country nationals who require one we were told to wait in the Naughty Corner for an official. Ten minutes passed & I went back with the letter from the EU Commission. They left us to wait another HOUR before another official came out to ask for our marriage cert. Another hour & by this point I was fed up. They had asked us NO questions, and had treated my wife with very little respect. They wanted me to go through without her, stating again and again that I had no problem, the problem was with her. The fact we were married made no difference, neither did the new Directive which they hadn´t even heard about. So much for EU Law.

Finally I called the British Embassy and got through to a lady who wanted to speak to one of the officials. This seemed to worry them, they wouldn´t talk to her but about 2 minutes afterward beckoned us over and let us through, handing our documents back. They hadn´t placed a visa in my wife´s passport, had asked us NO questions about how long we´d be in Spain for... nothing. They just let us through after a 2 hour wait.

What I´ve learned from this is EU law means very little unless it´s national law, police-check officials are a law unto themselves & dont seem to care about regulations (or surely they´d have asked more questions/stamped my wife´s passport etc) & seem intimidated by embassies.

I´ll be writing an article for a local newspaper in London about our adventures... my wife will soon be applying for her citizenship so all of this will be moot to us. It was interesting how so little of this has anything to do with regulations, and soooo much to do with whoever you happen to be dealing with.

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Post by Dawie » Wed Sep 27, 2006 9:52 am

We queued up at Luton airport ready for a fight to get my wife in, armed with our passports and lack of Schengen visa. The check-in person had a quick thumb through our passports and issued the boarding passes. She did re-check my wife´s passport but asked no questions as to the lack of a visa. Even less problems through security. Upon boarding the plane the person did wonder at my wife´s lack of visa to which I replied she no longer needed one from April of this year. That got us on board the plane.
This is not surprising. Being someone who requires a Schengen visa myself, I am often surprised at how few times check-in staff have ever asked to see it when travelling from the UK to a Schengen country. I would estimate that roughly 1 out of 10 times does the person at the check-in desk ask me if I have a visa. And then they just take my word for it when I say yes.
What I´ve learned from this is EU law means very little unless it´s national law, police-check officials are a law unto themselves & dont seem to care about regulations (or surely they´d have asked more questions/stamped my wife´s passport etc) & seem intimidated by embassies.

I´ll be writing an article for a local newspaper in London about our adventures... my wife will soon be applying for her citizenship so all of this will be moot to us. It was interesting how so little of this has anything to do with regulations, and soooo much to do with whoever you happen to be dealing with.
I would have to say that, personally knowing many Spanish people, your wife's biggest problem was not that she had no visa, but the fact that she was Columbian. In fact I think you probably chose the worst Schengen country to perform your little experiment. Spanish people are extremely prejudiced towards South Americans and, as I'm sure you experienced at the airport, view many of them with utter contempt, especially if the tone of their skin has a brownish tint.
In a few years time we'll look back on immigration control like we look back on American prohibition in the thirties - futile and counter-productive.

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Post by smalldog » Wed Sep 27, 2006 10:00 am

Congratulations on getting through and enjoy your stay in Spain. Thanks for telling your story.

When travelling with my wife airline check-in staff have always been very thorough about checking visas so I'm surprised you got through that so easily.

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Post by Steve Manley » Wed Sep 27, 2006 10:19 am

Absolutly... i´ve experienced a lot of raceism against south americans (and black people) in Spain. My wife´s family is in Spain so that´s why we go. Conversely I have lots of Spanish friends too... but it is a bigproblem, and not one seen in most other EU countries, especially UK. Hopefully with more travel and immigration this will gradually change in Spain, apparently it has got better over the last decade or so.

tt
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Post by tt » Wed Sep 27, 2006 10:31 am

Congrats, and many thanks for relating this interesting course of events.

You'd think the airlines would have been a little bit more careful, since they are fined if the passenger can't enter the destination country and has to be flown back at that airline's expense too. Nevertheless, you did have the convincing papers if there had been a challenge.

As for the Spanish security staff - well, they would have been told in back-office to refer to the new Directive regulations as (or as not, as the case may be!) implemented by Spain. Can you imagine the to and froing that that would've started! The fact that one of them asked for the marriage certificate might indicate that they understood the point about the EU Family Member, or at least were latching on to what your EU Commission letter was on about. Or they were looking at a EEA Family Permit on entry possibility (since otherwise really, proof of marriage wouldn't be an issue - simply the issue of the residence card and its validity would).

But at the end of the day, perhaps it was the subtlety of being exempt from a visa on the basis of the "possession of the valid residence card referred to in Article 10" (Art 5(2)", along with the force of the EU Commission letter (which as smalldog points out, might go further than the EU states regulations presently do) that clinched it.

In other words, you did it on the basis of sufficiently persuasive evidence which overrode any existing national legislation/regulation.

Who knows?

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Post by Steve Manley » Wed Sep 27, 2006 10:39 am

Indeed... there did seem to be a lot of comming and going from behind closed doors, and I saw that letter being passed about a little, so perhaps it carried more weight than I gave it credit.

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Post by Directive/2004/38/EC » Wed Oct 25, 2006 11:53 am

I just found this thread. Thank you Steve and thanks to your wife for investing the time and dealing with the hassle to carry this through!!

Can I ask, is there content from the EU letter than you could share with us? And how did you make contact with them?

Just to note, the Irish implementation of EU Directive/2004/38/EC is
STATUTORY INSTRUMENT
S.I. No. 226 of 2006
European Communities (Free Movement of Persons) Regulations 2006
http://www.justice.ie/80256E010039E882/ ... Q6PEJEW-en

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Post by voland » Sun Oct 29, 2006 2:22 pm

Hi everybody.

I just got to this thread, and I am in shock.

Im spanish, and my wife is russian. We live in Spain, and we intended to travel to London, for a week.

Technicaly, according to this new Directive 2004/38, my wife shall not need a british visa to travel to England (in the same way as a colombian spouse of a british citizen shall not need a schengen visa towards travelling to Spain).

I spoke with the british embassy in Madrid, inMoscow, with the british home office, and EVERYBODY assured that the Directive is implemented, but that my wife needs a visa, or a british family permit.

Its totally ridiculous, but they won't let her travel to England,without this BRITISH family permit. Actually she has a spanish family permit, but it seems that for english authorities it is not enough...

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Post by Dawie » Sun Oct 29, 2006 6:52 pm

The UK has not participated in this directive so I don't know why you are surprised.
In a few years time we'll look back on immigration control like we look back on American prohibition in the thirties - futile and counter-productive.

tt
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Post by tt » Sun Oct 29, 2006 8:05 pm

I think Dawie has had writers block. Which we all get from time to time.

Actually, the UK HAS participated in the Directive (2004/38/EC).

But what voland has pointed out is possibly legitimate grounds for "shock".

If the British authorities did what the Spanish authorities did in the above case of Steve Manley, then you WOULD expect that voland's wife would not need a British visa to travel to England/the UK IF SHE HAD A RESIDENCE CARD (as with the case with Steve Manley's wife).

However, on the basis of the British legislation, which we've discussed above, then the British Embassy comments are ostensibly correct ---> wife needs a British visa of sorts, or an EEA Family Permit. According to the British rules/regulations, that Permit does seem to need to be a British one (by way of its definition of "EEA Family Permit").

However, if you read through this thread, we/I believe that the EU law would uphold your (voland's) case, in that your wife wouldn't need a visa or Permit to enter the UK - or if she did, then the Spanish EEA Family Permit would suffice (assuming she has that, and not just a non-EEA family type permit). And this assumes she has that EEA Residence Card.

Meaning, the UK law/regulations here are deficient, and defeatable in the EU Courts.

However, wouldn't it be easy to get a British issued EEA Family Permit, or a British visa in any case, just to make it an easier, less confrontational trip?

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Post by voland » Sun Oct 29, 2006 8:34 pm

Hi again.

My wife, has an EEA family permit, issued by the spanish authorities. She may travel with it anywhere in the European Union, except England and Ireland (nonsense).

Great Britain is obviously part of the 2004/38/CE.

I want to go to England for few days, and to obtain a british EEA family permit is, at first, a long process (again goes against the EU laws), they require such type of documents that I do not want to give the British Consulate.

Documents such as:

MY personal bank statement. (Who are they to ask how much money I have in my bank account?)

Information about MY and my wife's job, how much we earn.

Vida laboral, this is in Spain, a record of all the places in which I have worked.

This among more than 10 documents. I find it just an abuse.

I complained to the European Union, and they answered me that I am right, and that both Great Britain and Ireland, and not fulfilling EU law. It results like a kind of joke, that only few countries have implemented this Directive, and both England and Ireland did it wrongly.

I filed already a complain before the European Commission and before the EU Ombudsman, but as far as I know, it will take many months to get a concrete result.

Regarding Spain, in the next 2 weeks, the law implementing Directive 38/2004 will be ratified, so any non EU national, holding a british family card, shall enter Spain with no visa. Unfortunately, the oposite, will not be possible, for long.

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Post by Directive/2004/38/EC » Sun Oct 29, 2006 9:19 pm

According to a reasonable interpretation 2004/38/CE, your wife should not need a visa to go to the UK if she has a form of "residence card" issued by the Spanish government.

On the other hand, the UK (and Ireland) have both carefully written their national implementing legislation to specify that she would not need a UK visa only if she has a UK issued residence card.

Have you been married and living together for long? Does she have a standard format unlimited time Spanish residence permit in her passport?

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Post by JAJ » Sun Oct 29, 2006 11:36 pm

voland wrote:Hi again.

My wife, has an EEA family permit, issued by the spanish authorities.
Is there any chance that your wife might be eligible for Spanish citizenship? (would solve the problem).

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