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sum1
- thin ice -

Joined: 16 Aug 2012
Posts: 208

Posted: Wed Oct 03, 2012 12:39 pm Post subject:

EUsmileWEallsmile wrote:

I agree it's rather silly of them.

Of the Swiss? They do not have a legal choice. They would need to amend their bilateral agreement with the EU. Problem of that is that the free movement agreement is part of a bundle of agreements. If one falls all fall (Guillotine clause). Also, a new popular vote would need to be held.

ca.funke
Moderator

Joined: 10 Feb 2008
Posts: 1411
Location: Zürich, CH (Schengen)

Posted: Thu Oct 04, 2012 11:55 am Post subject:

sum1 wrote:

EUsmileWEallsmile wrote:

I agree it's rather silly of them.

This has nothing to do with the bilaterals or the "guillotine clause".

Just before Switzerland joined Schengen (freedom of movement and the bilaterals were already in place), Switzerland unilaterally accepted all(!) UK, Irish, Bulgarian, Romanian and Cypriot residence permits as good for an entry into Switzerland for up to 90 days.

When Switzerland joined Schengen they thought that above is no longer possible, as (some) people with such residence-permits are NOT admitted to Schengen.

That is correct, but the emphasis is on "some" - as they didn´t include "family members of EU-citizens" into their calculation:

As a result, "family members of EU-citizens who are usually visa-required in Schengen, but resident in above 5 countries" are now admitted visa-free to ALL Schengen-countries, except Switzerland.

Reason is, that their freedom of movement is derived from 2004/38/EC (which is not applicable in Switzerland), but not through any Schengen rule.

It´s a bit complicated, but once you understand you see why this is EXCLUSIVELY the Swiss authority´s fault. In order to bridge the gap, they could -as before Schengen- unilaterally accept "family members of EU-citizens who are usually visa-required in Schengen, but resident in above 5 countries"´s residence-permits, and everything would be back to making sense.

PS - I know what I say here is complicated and technical. If you find a better way to describe the same, I´d be happy to hear it.

See a real-life example of the stoopidity of this rule >>here<<.

Rgds, Christian

sum1
- thin ice -

Joined: 16 Aug 2012
Posts: 208

Posted: Thu Oct 04, 2012 12:52 pm Post subject:

ca.funke wrote:

It´s a bit difficult to understand, but once you do you see how stoopid this is, and it´s EXCLUSIVELY the Swiss authority´s fault. In order to bridge the gap, they could -as before Schengen- unilaterally accept "family members of EU-citizens who are usually visa-required in Schengen, but resident in above 5 countries"´s residence-permits, and everything would be back to making sense.

How so without being in conflict with the Schengen rules or the bilaterals? Neither provides for visa-free travel as you say. How do you propose to break out of this corset? Does the Schengen agreement allow extensions beyond the original agreement (it would obviously not be a problem for the other Schengen members)? Could a change be legally challenged within CH, in other words would it be lawful?

ca.funke
Moderator

Joined: 10 Feb 2008
Posts: 1411
Location: Zürich, CH (Schengen)

Posted: Thu Oct 04, 2012 2:34 pm Post subject:

sum1 wrote:

These changes would NOT be in conflict with the Schengen rules, or let´s say only indirectly, or at least it wouldn´t matter.

Fact of the matter is, that "family members of EU-citizens" may already travel to all Schengen countries (except Switzerland) without a visa. However, they may travel to these countries >>because these are EU/EEA countries<<, not because they are Schengen countries.

For exactly and only this specific reason such people may travel to all EU/EEA countries, but not Switzerland.

If Switzerland, in the light of the above, would unilaterally also accept such people, especially since there are no "checks on persons" between CH and any neighboring state, this would be much more logical than anything we have now.

Hope this is clearer?

Other real life story (I already posted this before, but can´t find it now): I know a German/Colombian couple, living in Dublin. They went to Munich to visit their German parents(in law). Obviously they went to Germany visa-free.

Next they wanted to skii, and did so by driving to Switzerland. They had a fantastic week in Switzerland and drove back to Germany....

....they weren´t even aware of doing something illegal, and when I told them that their visit to Switzerland was illegal, they initially didn´t believe me.

They wrote (just like me) 2 or 3 emails to the >>ministry of foreign affairs<< venting their anger, but got nothing back except "you do need a visa for Switzerland"...

...ever since they skii in Liechtenstein or Austria. Bad luck for the >>very well running Swiss tourism industry<< (although this is a year old, the situation remains unchanged Wink

sum1
- thin ice -

Joined: 16 Aug 2012
Posts: 208

Posted: Thu Oct 04, 2012 3:16 pm Post subject:

ca.funke wrote:

sum1 wrote:

These changes would NOT be in conflict with the Schengen rules, or let´s say only indirectly, or at least it wouldn´t matter.

And there lies the problem. You opine that CH can unlaterally make this change without actually arguing why. I am of the opinion that they can't because the Schengen agreement gave CH very clear rules how to operate their immigration. They cannot easily break out of this as mentioned earlier.

ca.funke
Moderator

Joined: 10 Feb 2008
Posts: 1411
Location: Zürich, CH (Schengen)

Posted: Thu Oct 04, 2012 4:16 pm Post subject:

sum1 wrote:

Why should any Schengen-country mind, considering those who would benefit from this "exception" may enter all Schengen-states already?

sum1
- thin ice -

Joined: 16 Aug 2012
Posts: 208

Posted: Thu Oct 04, 2012 6:04 pm Post subject:

ca.funke wrote:

sum1 wrote:

Why should any Schengen-country mind, considering those who would benefit from this "exception" may enter all Schengen-states already?

It's a problem of the Swiss, how they can change agreements which required the direct consent of the Swiss voter. It's not a Schengen problem anyway. It's one of free movement in the larger EEA/CH context.

DAMMYDAMMY
Junior Member

Joined: 16 Mar 2012
Posts: 37

Posted: Fri Oct 05, 2012 11:45 am Post subject:

many thanks to you all,i have a sucessfull flight with ryanair,i borad the plane with my rc ,wife n kids sucessfully without no problem,am prsently in lithuania n ll be coming back this weekend,only that in kaunaus, the immigration officer stamp my passport and i was sad n complain bitterly,but he does not understand english n my wife was d one doing all the talking n at the end he said sorry n off we went. once again thank you all. _________________ THANKS SO MUCH FOR YOUR URGENT REPLY,I WISH EVERYONE ALL THE BEST AS YOU ALL TRY TO SOLVE SOMEONE ELSE PROBLEM.THANKS

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