Stuck in Spain

Tobbe · Post by **Tobbe** » Mon Oct 08, 2007 4:51 am

so the wife and I thought it would be nice to go to Spain for a week. I'm Swedish and she is Bolivian, we live in London and she has a EEA family permit stamp in her passport (applied for it using the EEA2 form). My understanding was that we would be allowed into Spain based on the directive 2004/38/EC but as it has turned out my wife is now in police custody waiting to be deported on the first flight back to UK. They do not care about any EU laws since UK is not a schegen country and Spain is not really a member of EU anyway (last one makes me laugh).

We have gone to quite a few other countries in EU before and it has never been any problems at all, they haven't even stamped the passport.

Are they correct? Can they refuse to let me wife in? Shouldn't they issue a visa free of charge? (we do have marriage certificates and things with us but they are not interested). Will we get problems on the way back to UK now that she has a big deported stamp in her passport?

flyboy · Post by **flyboy** » Mon Oct 08, 2007 7:45 am

Suggest you show them "Real Decreto 240/2007", which is the Spanish implementation of Directive 2004/38 and highlight " Capitulo 2, articulo 4 , point number 4" - Chapter 2, article 4 . 4 - here's the link:

http://sid.usal.es/idocs/F3/LYN10709/3-10709.pdf

here's a link with the english translation of the above:

http://www.ukgovabusesexpats.co.uk/Arti ... 0.2007.htm

Good luck

Richard66 · Post by **Richard66** » Mon Oct 08, 2007 9:50 am

Have you called the British Consulate? Have you called Solvit?

The article in question says your wife cannot be expelled if she can prove BY ANY MEANS she is covered by the right of free movement.

Throw your weight about before they send her back!

Tobbe · Post by **Tobbe** » Mon Oct 08, 2007 3:23 pm

They would not have any of it so now we are back in the UK after spending several houndreds of punds getting my self a ticket on the same flight. Got no problems in the UK, they did have a second look at the shiny new "deported" stamp in the passport but didn't say anything about it.

Oh well so much for this years holiday :/

Richard66 · Post by **Richard66** » Mon Oct 08, 2007 4:44 pm

Take this to the European Commission and protest with the Spanish foreign ministry. Send a petition to the European Parliament.

Also, show this DEPORTED stamp to the UK FCO and ask them to start treating family members better themselves. They might see how other countries get their own back when the UK is one of the prime movers in denying family members the right to free movement. This was a little vendetta from the Spanish Border Police, if you ask me.

Don't mistake me: I'm in the same boat as you, except it's the UK that won't let my wife get in.

Tobbe · Post by **Tobbe** » Mon Oct 08, 2007 7:54 pm

Reading a bit more about it. The old bold man in Spain might be correct.. Bolivia is a Schengen visa national nowdays according to a few modifications of 539/2001. So the questions is if they can demand that my wife applies for a visa BEFORE we travel and refuse to do it at the border control. Given "Real Decreto 240/2007" 2.4.4 we should have been given more then 8h before being forced on a flight anyway.

Got an email off to the signpost service..will see what they make of it

Directive/2004/38/EC · Post by **Directive/2004/38/EC** » Tue Oct 09, 2007 5:29 am

Tobbe wrote:The old bold man in Spain might be correct.. Bolivia is a Schengen visa national nowdays according to a few modifications of 539/2001. So the questions is if they can demand that my wife applies for a visa BEFORE we travel and refuse to do it at the border control.

NO. The bold man in Spain is wrong. Your wife has a right to travel with you, and you were able to prove to them that you were married.

That is really outrageous! I hope you have the patience to fight this. I would suggest you get them to reimburse you for all your costs and give you an apology, though aim higher (like having the border guard fired).

Definitely contact citizens signpost. And contact Solvit now to get that started.

And most definitely read through the material about Directive 2004/38/EC. The Spanish have most likely broken the law in this case

From Directive 2004/38/EC

Article 5 - Right of entry
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.

Richard66 · Post by **Richard66** » Tue Oct 09, 2007 7:14 am

When travellng with you it's no longer her nationality that matters, but it is the fact she is married to you and is travelling with you that counts.

I hope you got the name of the Spanish policeman that did this. It is always a good thing to ask: that's when they start getting nervous. It seems to me that not only did they refuse her entry, but even refused to let her prove she was covered by the right of free entrance.

Prawo · Post by **Prawo** » Tue Oct 09, 2007 7:44 am

I am very sorry this all happened.
Do inform the European Commission and the European Parlement about it. By way of a formal complaint.

Did you try to contact a Spanish immigration lawyer?
Did they give her a written refusal to enter Spain? This is obligatory and can still be appealed. Do take care of this.

As you are Swedish, contact Swedish Solvit and ask them for help getting at least your extra costs back.

Why not try Amsterdam.
You should not have any trouble at Schiphol Airport, and if so, I am 100% sure to get you in.
In this case, please arrive during office hours and send me a copy of the necessary documents before hand (copy passports and stamp and marriage certificate).

geoffsinclair · Post by **geoffsinclair** » Tue Oct 09, 2007 8:35 am

Very sorry for your wife Tobbe, having a "deported" stamp on her passport must not feel good but practically it changes very little.

You have highlighted the danger - not of exercising EU laws and your rights - but you have highlighted the fact that ignorant immigration officals, airlines and administrators cannot be trusted.

In some examples people claim to have been successful in gaining entry into EU countries via the Directive. Your example is the other side of that coin.

I agree with the other posts, there are ways of fighting this, but you must not give up.

Tobbe · Post by **Tobbe** » Tue Oct 09, 2007 2:26 pm

We did get a lawyer in Spain. She told the immigration officers that they were wrong and that they should let us in. They were not impressed at all by it and ignored her, told her that she wouldnâ€™t get paid if she didnâ€™t get my wife to sign a paper that she has been deported under Spanish national laws.

We did get the contact details of the lawyer and she took a copy of the passport and the marriage certificate (hopefully she keeps it safe).

It will take a few days before the Singpost service replies so Iâ€™m thinking of writing a letter and attach it to a copy of the 2004/38/EC directive in Spanish and hand deliver it to the Spanish embassy here in London plus sending a copy to the lawyer and to Ryanair so they donâ€™t start to refuse people on board with EEA permits. Is this a good way of doing things? If it is what should I include in my letter (except for the compulsory f*ck off)?

Prawo · Post by **Prawo** » Tue Oct 09, 2007 2:51 pm

I fear sign post will not be of a great help.
In my case they gave the wrong answer, even after I explained them it did work out well in the end.

You should ask the Spanish lawyer to apeal the decision a.s.a.p. anyway.
See art. 13 par. 2 and 3 of Regulation (EC) No 562/2006 (Schengen Borders Code).

Richard66 · Post by **Richard66** » Tue Oct 09, 2007 3:48 pm

And they bullied your wife into signing a paper using blackmail! Are you sure you arrived at the airport and not at a den of thieves?

Tobbe · Post by **Tobbe** » Tue Oct 09, 2007 4:25 pm

Ok, we got hold of our lawyer in Spain and explained that we want to file an appeal. I am now putting together an email with all information that I want her to bring to the court. So far I got the 2004/38/EC law where it says that as long as we have an EEA permit in the passport they canâ€™t ask for a visa (Article 5, point 2). According to Regulation 562/2006 article 7 point 6 they should use the 2004/38/EC directive and not the Schengen rules. (Interestedly enough point 5 says that we have the right to get their names which they refused over and over again saying you will get it later but we never got it). Article 6 point 2 in 2004/38/EC also says that no visa is necessary for any stay less than 3 months. Is there anything else of major importance that I should point out?

Richard66 · Post by **Richard66** » Tue Oct 09, 2007 5:23 pm

They certainly knew they were doing something wrong, those in Spain. I bet that if you HAD got their names they would have changed tune!

Should you not also invoke the Spanish implementation of the Directive?

Prawo · Post by **Prawo** » Tue Oct 09, 2007 8:00 pm

Read [/url=http://eur-lex.europa.eu/LexUriServ/Lex ... 03:EN:HTML]the decision in case C-503/03[/url] and know apparently they did not learn anything from it in Spain.

Bring the case at the attention of your lawyer.

Also inform her about the existence of the Mrax/Brax case, which explains clearly lack of a visa does not give a member state the right to refuse entry.

About signing the paper, I presume she got the one pictures as part B in appendix V. The signing of this document is mentioned in art. 13 par. 2.
But remember, your wife is not a "third country national". Do read the definition in art. 2 under 6. She clearly fits the definition mentioned in point 5 under a).

Was there in Spain no possibility to contact a judge to get a provisional measure, forcing the authorities to let your wife enter the country? I recently heard about a case where a fast acting lawyer managed to stop deportation (in a refugee case).

Good luck.

Tobbe · Post by **Tobbe** » Tue Oct 09, 2007 9:43 pm

Thank you. All of you have been given us some really really good information and all of it will be forwarded to our lawyer. Given that neither my wife or I have any real legal experience (well I guess she does have some sort of â€œlegalâ€

Tobbe · Post by **Tobbe** » Tue Oct 09, 2007 9:52 pm

Oh and just to add that the name of the officer is NOT included on the deportation papers either. There is however a signature from the interpreter which she never saw.. at the end of the day her mother tongue is Spanish.

Richard66 · Post by **Richard66** » Wed Oct 10, 2007 8:31 am

This gets thicker and thicker. It seems that here it's the spaniards who'll be in deep water.

Incidentally, on reading Article 10 point 2 of the Schengen agreement : it refers to Directive 2004/38/EC and says that third-country famly members of EU citizens in possession of the valid residence card issued according to Article 10 of that Directive shall not have their passports stamped. Another confirmation that the Uk's and many other countries' restrictive interpretation of the Directive in relation to residence cards is wrong.

From that article, in your case, isn't it clear that your wife needs no visa to enter the Schengen area?

Prawo · Post by **Prawo** » Wed Oct 10, 2007 8:42 am

Tobbe wrote:Prawo, I could only find stuff about the Mrax/Brax case in Dutch. I do speak Swedish and German so I get a little bit of it but is there any English or Spanish translation of that judgement?

All links to EU documents and court decisions have in one or two places a language code.

Try to change the en or EN by es (for Spanish), sv (for Swedish) or de (for German) to get the proper language version (if available).

Here are the English, German, Swedish and Spanish versions.

For court decisions you can choose the proper language version on the home page of the court: www.curia.eu and look for the search form at case-law

Tobbe · Post by **Tobbe** » Thu Oct 11, 2007 7:48 pm

Tank you Prawo, canâ€™t believe I missed that little part of the urls

Digging a bit more I found that HO does not issue proper residence card according to 2004/38/EC. Upon asking HO they said:
â€œPlease be advised that her Resident card is only valid for UK to remain
and or enter. If she wises to travel to any other EU countries. She will
need to contact country's Embassy to obtain visa for that country.â€

Directive/2004/38/EC · Post by **Directive/2004/38/EC** » Fri Oct 12, 2007 3:19 am

Richard66 wrote:This gets thicker and thicker. It seems that here it's the spaniards who'll be in deep water.

Incidentally, on reading Article 10 point 2 of the Schengen agreement : it refers to Directive 2004/38/EC and says that third-country famly members of EU citizens in possession of the valid residence card issued according to Article 10 of that Directive shall not have their passports stamped. Another confirmation that the Uk's and many other countries' restrictive interpretation of the Directive in relation to residence cards is wrong.

From that article, in your case, isn't it clear that your wife needs no visa to enter the Schengen area?

Unfortunately the wife does not have a Residence Card. She has an EEA Family Permit, which is an UK issued entry visa for family of EU citizens.

But I agree that the spanish are getting into deep water.

Prawo · Post by **Prawo** » Fri Oct 12, 2007 9:27 am

[quote="Tobbe"]Digging a bit more I found that HO does not issue proper residence card according to 2004/38/EC. Upon asking HO they said:
â€œPlease be advised that her Resident card is only valid for UK to remain
and or enter. If she wises to travel to any other EU countries. She will
need to contact country's Embassy to obtain visa for that country.â€

Prawo · Post by **Prawo** » Fri Oct 12, 2007 9:38 am

Directive/2004/38/EC wrote:Unfortunately the wife does not have a Residence Card. She has an EEA Family Permit, which is an UK issued entry visa for family of EU citizens.

See my answer to Tobbe above.

Does the UK have such cards at all?
I only know of stamps in passports, with the proper mention of the person being a family member of an EEA citizen. This stamp is honoured by the Dutch immigration (after I taught them a lesson).

But I agree that the spanish are getting into deep water.

They certainly do.
Keep up the good work and complain against them.

Remember the European Commission (or a national Ombudsman, if it exists) are the only proper institutions to complain to.
Solvit or Citizens Sign Post are useless.

johnsienk · Post by **johnsienk** » Fri Oct 12, 2007 10:22 am

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Stuck in Spain

Stuck in Spain