Directive 2004/38/EC: Change of rules?

SRAQAI wrote:My caseworker has just notified me, that the Directive rules state that a person who want to apply for a residence card in the EU Country, needs to have a long stay schengan visa.

SRAQAI wrote: From what I have read and seen, a spouse of an EU Citizen is allowed to apply for a residence card, or in the case of France, a 'carte de sejour', within 3 months of arriving in the country and this can be applied for whilst being on the 3 month Schegan visa (short stay visa). My caseworker has just notified me, that the Directive rules state that a person who want to apply for a residence card in the EU Country, needs to have a long stay schengan visa. Is this correct? Have the rules changed? Right now, me and my husband just want to visit paris, but in the future we will be moving there, for my studies.... now am confused about what we should apply for, when we eventually want to move out there

Summary of the Judgment

1. A Member State which requires third-country nationals, who are members of the family of a Community national who has exercised his right to freedom of movement, first to obtain a residence visa for a residence permit to be issued fails to fulfil its obligations under Directives 68/360 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, 73/148 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services and 90/365 on the right of residence for employees and self-employed persons who have ceased their occupational activity.

It is true that the Member States may, in accordance with Article 3(2) of those directives, when a national of a Member State moves within the Community with a view to exercising the rights conferred on him by the Treaty and those directives, demand an entry visa or an equivalent document from members of his family who are not nationals of one of those States. They must, however, grant every facility for obtaining any necessary visas. In that regard, the Court has held that if the provisions of Directives 68/360 and 73/148 are not to be denied their full effect, a visa must be issued without delay and, as far as possible, at the place of entry into national territory.

(see paras 32-33, 36, 38, 49, operative part)
2. A Member State which fails to issue a residence permit as soon as possible, and in any event not later than six months from the date on which the application for that permit was submitted, to third-country nationals who are members of the family of a Community national who has exercised his right to freedom of movement fails to fulfil its obligations under Directive 64/221 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health.

It is of little importance in that regard that the persons concerned may provisionally reside in the national territory while awaiting the decision concerning the grant or refusal of the residence permit. The question whether the fact that the time-limit is exceeded constitutes an obstacle to taking up residence or exercising an activity is irrelevant.

Directive 2004/38/EC wrote:
Article 5
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.

Guide to 2004/38/EC wrote:
Entry visas?

Member States shall grant your third country family members
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. Member States may not require family or
residence visas for your family members but only entry visas.

Second Commission Report to the Council and Parliament on the implementation of Directives 90/364, 90/365 and 93/96 (right of residence) /* COM/2003/0101 final */ wrote: Documents required for the issuing of the residence card
The documents that the national authorities can require are listed exhaustively in the three Directives, as is clear from the Directives themselves ("For the purpose of issuing the residence card or document, the Member State may require only that the applicant present ...").

SRAQAI wrote:Thank you acme. Now I am trying to battle with an MEP, who thinks that directive is only applicable, when the EU Citizen has already moved to another EU Country!

Directive/2004/38/EC wrote:

SRAQAI wrote:Thank you acme. Now I am trying to battle with an MEP, who thinks that directive is only applicable, when the EU Citizen has already moved to another EU Country!

Do not battle with them. Educate them!

Directive/2004/38/EC wrote:You might want to point out that citizens of the UK, in their capacity as members of the European Union, have a right of free movement to other EU member states. That is true for both shorter visits (under 3 months) for whatever reason, and for longer visits (for work, etc...).

That is the key free movement right.

Oh, and that family members are also allowed to travel with the EU citizen whereever they go.

Directive/2004/38/EC wrote:Remember, all sorts of people get elected to be MEPs. Some love Europe. Some hate it. Some have a lot of knowledge about the details of Europe. And some don't.

The learning curve is steep, even for a small area like free movement law.