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Directive 2004/38/EC thread

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

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EUsmileWEallsmile
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Post by EUsmileWEallsmile » Wed Oct 09, 2013 6:57 pm

He will be expected to have a visa. An airline might not let him board. If he arrived at the Spanish border, he would be admitted (but that's no good if he's denied boarding).

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Post by barrow » Wed Oct 09, 2013 7:09 pm

Is that because his Residence Permit only states Settlement? We are flying with Easyjet...

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Post by barrow » Thu Oct 10, 2013 5:59 am

VFS have said he'll need a visa however it will take up to two weeks so by then we'll have been and returned from holiday :(
Why would his Residence Permit not say family member?

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Post by EUsmileWEallsmile » Fri Oct 11, 2013 7:22 pm

barrow wrote:Is that because his Residence Permit only states Settlement? We are flying with Easyjet...
The residence permit is not issued under the directive 2004/38/ec, but under the immigration rules. Therefore it cannot be used in lieu of visa.

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Post by EUsmileWEallsmile » Fri Oct 11, 2013 7:23 pm

barrow wrote:VFS have said he'll need a visa however it will take up to two weeks so by then we'll have been and returned from holiday :(
Why would his Residence Permit not say family member?
Because it's not issued under directive 2004/38/ec nor is the UK part of Schenghen. I appreciate that this is disappointing in terms of travel plans.

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Post by andrewkeen7 » Sun Nov 17, 2013 2:46 pm

My wife is a Russian national and I am British, we plan to move to Malta together in a few months.

I was wondering what our situation is in terms of applying for the Schengen Visa (if we will get it for free and at an accelerated procedure).

The situation is as follows:

We will both be travelling from our separate countries initially to a European airport where we will meet and get on our connecting flight together to complete the second leg to Malta.

Does this mean that she can apply as 'accompanying an EU spouse and all she has to do when applying for the Schengen visa is our marriage certificate, passports, travel insurance and both of our flight tickets to prove she is accompanying me?

Thanks for your help in advance!

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Post by wiz » Wed Dec 04, 2013 2:08 pm

European Union Freedom of Movement

Having read several posts on this board I understand most of them comeback to the same question!

Can I take my partner to another EU state without the need to apply for a Visa?

The member Jambo has created a post Q & A, where he is answering most of your common asked questions!

HERE: http://www.immigrationboards.com/viewto ... 263#956263

It is important to remember under which Law, NATIONAL LAW or THE EUROPEAN DIRECTIVE 2004/38/EU you have used to bring your partner in this or any other EU country.

You can read this Guide about the FREEDOM TO MOVE AND LIVE IN EUROPE.

http://ec.europa.eu/justice/policies/ci ... vement.pdf


I decided to write our own experience in case somebody can be helped and stop asking the same questions time after time.

My original Nationality is Greek and have acquired the British Nationality too.

When I married my Russian wife back in 2008, in Russia, I choose to use the European Directive route to bring her here in the UK, “Exercising my Treaty Rights” as I was advised that I was entitled to by a nice lady at HO, in Croydon, which I did. Those days you could speak to somebody on the phone but now since they moved to Liverpool, you can only email then and wait for many days to get a reply!

My wife visited the Moscow British Embassy with a well prepared file and 24 hours later she received an email to collect the passport, with her “ENTRANCE CLEARANCE”, which she did, FREE of ANY CHARGES.

After she arrived in this country, 10 days later we applied with the same documents for her “RESIDENT DOCUMENT” and it took the HO in Liverpool…… more than 6 months to issue it! Obviously, as it was FREE of Charge, it wasn't for them priority to do any work …… and only Moved when I threaten to complain to the EU Parliament for breaking the Directive’s time scale. I did not bother complaining to SOLVIT.

While we were waiting for the “Resident Document “ to be processed, we had requested our Passports back and decided to visit Greece. Visiting the Greek Consulate to apply for her Visa, according to the rules, FREE OF CHARGE, I was told that she had to pay…… which I replied to read their instructions…… and finally made a call to the FO in Athens, spoke to somebody who was dealing with EU Matters and few minutes later the woman who was adamant and refused to process our application, came out looking for us and in 30 minutes later we had a 3 months Schegen Visa in her Passport.

It is clear that the various clerks of the Authorities do not bother reading new instructions…… and to make sure we will have no more problems I printed the relevant Greek Law and took it with us. Entering Greece was a breeze, and testing the waters, I found out that the officer was very knowledgeable, asking my wife, “”where is your husband, you must be travelling together or is he waiting outside?” So I showed my face.

On the way out it was another story. A young ignorant officer was refusing to allow my Russian National wife to depart for the UK and it took over 20 minutes to sort it out, because the boss was drinking coffee…. and she would not listen to me neither bother reading the Greek Law.

After my wife received her Resident Document in Feb 2009, we started planning a visit to France, and reading the French Consulate web site in London, I realise that they were not implementing correctly Article 5 (2) of the directive and was confirmed by email to me.

EU DIRECTIVE 2004/38/EU

Article 5 (Right of entry)


1. Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport.

No entry visa or equivalent formality may be imposed on Union citizens.

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.

3. The host Member State shall not place an entry or exit stamp in the passport of family members who are not nationals of a Member State provided that they present the residence card provided for in Article 10.

A nice email to the French Minister for European Affairs and a couple of days later I received a letter from the French Consulate … in English…. Advising me of her eligibility to enter France without a VISA.

When we arrived in Nice, south of France..... the officer asked for Visa but I showed the letter from the Consulate.....checked their regulations and let us in .... no problem.

Having travelled with my Russian wife, over 16 times around various EU countries, we have had not much problems apart from the usual airline ignorant staff.

It is clear that ALL EU Member states have implemented the Directive 2004/38 to their National Law and any family member, National of 3rd world country and not a member of the EU in possession of "A RESIDENT CARD " from an EU member state can travel freely, accompanied by their partner or meeting them on another state, without the need of a visa.... :D

Of course the person in possession of a RESIDENT CARD cannot travel freely on their own in any country in the EU, without either meeting or together with the person that had exercised their TREATY Rights.

Republic of Ireland (Eire) and the EU Directive2004/38/EU

In the middle of 2010, I thought we had finished with all these nonsense, when I received an invitation to visit an Irish friend in Dublin, and then discovered we could not go because the Irish they were implementing the directive, since 2006 but not the article 5(2).

The Republic of Ireland (Eire) has transposed the EU Directive 2004/38/EU (Freedom Of Movement) into its National Law and became Law on the 28 April 2006.

Finding this information it took me ages but finally I managed to locate this information, very deep inside the INIS (Irish National Immigration Service) web site. Chasing around the Irish Consular and Government sites, I found that none of them makes any reference or give out information about EU Citizens.

On the 10th of October 2010, I submitted a petition to the EU Parliament against the Republic of Ireland for not implementing the Directive correctly, especially article 5(2), which allows holders of a Resident Card from an EU member Country to travel freely and without the need to have any visa, in any of the EEA (European Economic Area) countries.

Finally, the following year, on the 23 November 2011, I came across the STATUTORY INSTRUMENT No. 146 of 2011 IMMIGRATION ACT 2004 (VISAS) ORDER 2011.

This new order resolves the problem for many people, who the non EU partner has acquired a Resident Card, under the EU Directive 2004/38/EU, in another member state and want to visit the Republic of Ireland.

Now they don't need to have or apply for a visa to visit the Republic, their Resident Card/Document is sufficient enough.

As far as I am aware, the Irish Republic was the last one to implement correctly, article 5.2 of the Directive.

I hope this information help some people.

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Post by YoYohoney » Mon Dec 23, 2013 1:34 am

How about if my husband is having treaty rights and he is from france and I came uk on student visa but my visa is fininshed last week. I dont want to apply EEA2 and want to move to france with him without visa.

Because my student visa is going to expire in next week and french embassy wont issue me a visit visa so How to use my right to enter france with my husband.

Please advise

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Re: Directive 2004/38/EC thread

Post by mxgee » Thu Mar 06, 2014 3:14 pm

I am UK citizen and my wife is non EU citizen and staying with me in UK on UK spouse VISA. Can she travel to France or any other EU states with me without obtaining VISA under Directive 2004/38/EC.

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Re: Directive 2004/38/EC thread

Post by wiz » Thu Mar 06, 2014 7:01 pm

mxgee wrote:I am UK citizen and my wife is non EU citizen and staying with me in UK on UK spouse VISA. Can she travel to France or any other EU states with me without obtaining VISA under Directive 2004/38/EC.
No .... must have a visa.

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Re: Directive 2004/38/EC thread

Post by Prawo » Thu Mar 06, 2014 7:43 pm

No she cannot.
She has to apply for a Schengen Visa.
However any Schengen state has to issue her this visa and free of charge.

Should she by accident land at the border with you and without a visa, but in the possession of her original marriage certificate the French are not allowed to refuse her entry and should issue her a 15 day visa upon arrival. The Dutch would do so.
problem will be how to embark the chosen means of transportation as that will often be the moment the passport and visa check is dealt with.

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Re: Directive 2004/38/EC thread

Post by mxgee » Thu Mar 06, 2014 9:10 pm

Prawo wrote:No she cannot.
She has to apply for a Schengen Visa.
However any Schengen state has to issue her this visa and free of charge.

Should she by accident land at the border with you and without a visa, but in the possession of her original marriage certificate the French are not allowed to refuse her entry and should issue her a 15 day visa upon arrival. The Dutch would do so.
problem will be how to embark the chosen means of transportation as that will often be the moment the passport and visa check is dealt with.
Do u know wot documents do my wife need in order
to obtain visa from french embassy in London

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Re: Directive 2004/38/EC thread

Post by Prawo » Fri Mar 07, 2014 2:52 am

That should be very simple.
She needs the original marriage certificate and a copy of your passport.
Plus u properly filled out Schengen Visa Application form. This means: do NOT punt anything in the fields marked with an *.
At question 21 she merely writes "other" and specifies I accompany my UK husband.

Though not required it will be safe to submit proof of het medical insurance, valid for the EU. Best apply for the European Health Insurance card or EHIC.

Besides it's up to her to prove you are going to France and she will accompany you. Any proof should be admitted her. You best write a short letter stating this and might include any reservation (transport to France, hotel) you made already.

See also the relevant site of the French Consulate-General: http://www.ambafrance-uk.org/Family-mem ... -Community
Keep in mind their directing your wife to the TLScontact centre. If she chooses so she will have to pay the service fee (and I am not sure if TLS is aware of your wife special rights, best print the direct info from the French themselves and have her take this. Though their website states
Pursuant to the Directive 2004/38, members of the family (spouse, children under the age of 21/ dependent or direct dependent parent) of EU Nationals do not require a visa to travel to France if:
- their UK residency states "Family Member of an EEA national",
- they are travelling or meeting in France their EU relative.
Attention: To avoid unnecessary problems whilst travelling it is advisable to carry along evidence of family relationship.
If your UK residency does not state "Family Member of an EEA national", you will need a visa to travel to France. In support of your application, the following documents will have to be produced:
- Evidence of the family link between the visa national and the EU/ EEA/ or Swiss National (civil status document)
- Evidence of EU/ EEA/ or Swiss Nationality (passport or national ID card)
- Evidence of stay in France of the EU/ EEA/ or Swiss National (proof of travel and accommodation)
However she can make a direct appointment as it's her right for filing a (fully free) direct application at the Consulate. She should get an appointment within 15 days and normally should get her visa within another 15 days.
This is what TSL website has to say
Direct Appointment at the French Consulate General
If you do not want to use TLScontact services, you may still apply directly at the French Consulate. Appointments are compulsory and shall be made through TLScontact by calling 0845 7300 118, Monday to Friday from 8.30 am to 4.30 pm. The minimum processing time is 24h00 – you will need to arrange to come back to the Consulate in person to collect your passport.
Remember: they should not charge her for making only this appointment. If they do: complain to the consulate and the European Commission (where there are more complaints like this also about practices from other countries which they are going to deal with).

She best applies for a 90-day visa, multiple entry and can ask it to be made valid voor 1-5 years.

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Re:

Post by Prawo » Fri Mar 07, 2014 3:27 am

wiz wrote:Having travelled with my Russian wife, over 16 times around various EU countries, we have had not much problems apart from the usual airline ignorant staff.
...
In the middle of 2010, I thought we had finished with all these nonsense, when I received an invitation to visit an Irish friend in Dublin, and then discovered we could not go because the Irish they were implementing the directive, since 2006 but not the article 5(2).
...

This new order resolves the problem for many people, who the non EU partner has acquired a Resident Card, under the EU Directive 2004/38/EU, in another member state and want to visit the Republic of Ireland.

Now they don't need to have or apply for a visa to visit the Republic, their Resident Card/Document is sufficient enough.
You did quite some effort in making things clear.
i remember the '80's from the last century when I was trying to get free visa for all EU member states my third country national wife wanted to visit together with me. In the end (after almost 2 years) the European Commission helped out.

The following situation comes to my mind.
By now your Russian wife could have the EU permanent residence right (if she is not a British national). If so it looks like she needs visa again, as the Directive excludes only those in the possession of a residence card for the family member.
What would be your view here?

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Re: Re:

Post by wiz » Fri Mar 07, 2014 9:55 am

Prawo wrote: You did quite some effort in making things clear.

i remember the '80's from the last century when I was trying to get free visa for all EU member states my third country national wife wanted to visit together with me. In the end (after almost 2 years) the European Commission helped out.

The following situation comes to my mind.
By now your Russian wife could have the EU permanent residence right (if she is not a British national). If so it looks like she needs visa again, as the Directive excludes only those in the possession of a residence card for the family member.
What would be your view here?
Hi there

Obviously you must be older than me ...... :lol:

Well I have been dealing with EU matters for around 14 years.....regarding having a partner from a 3rd world Country.
I am dual National and I never had any problems travelling around because of my British Passport, actually since 1 Jan 1979!

My wife is waiting for her British passport and life will be easier instead of arguing with ignorant Airline staff!

When the wife or partner has got an "Entrance Clearance" to join her partner, exercising her/his treaty rights, then it is advisable to apply ASAP, with the same documents, for a "RESIDENT CARD", which normally expires after 5 years.
After completion of 5 years residence AUTOMATICALLY he/she acquires PERMANENT RESIDENCY.
There is no need to apply for permanent RESIDENT CARD but for convenience and to avoid all these hassle, I have mentioned, it is better to apply and get one. The bloody British Government is charging now 65 pounds, when before was free. Because wife and I travel frequently and have family is the US, it is better to have a British Passport, otherwise applying for a visa to USA....... mostly refuse to a woman from RED RUSSIA (still the cold war is on :evil: )

To make it much clearer:

When your partner has exercised Treaty rights under the directive 2004/38/EU and is granted an ENTRANCE VISA, then has the right of Permanent residence in the country, even if the Entrance Visa expires. Of course to make life and travelling easier it is always better to apply for a Permanent resident Card if they do not want to acquire the Nationality of the country they are living in.

I have made a special thread where you can find full details regarding the Freedom of Movement under the directive 2004/38/EU.

Bringing an FSU Lady to EU with Directive 2004/38/EU

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Re: Directive 2004/38/EC thread

Post by shamimmig » Tue Mar 18, 2014 6:47 pm

Hi, thank you very much for this thread, because I am at the end of my mental tether here :)

I'm French, married to a filipina, we have 2 kids from her previous marriage. Kids are 14 and 18, also filipinos. I adopted both of them , and their UK birth certificates now indicate me as the father.

We have been leaving in the UK for 10 years now. Every one got familly member of an EEA national cards in their passports. My wife has ILR.

So far we have been forced to fill shengen visa after shengen visa everytime we want to visit my mother in france. The problem is that shengen visas are not straightforward to fill contrary to what it should be. In fact it's HELL. My mother has to go to the local police station each time to validate that we are going to stay in my own family home. They want to see booked flights even before the visa is processed, and that's often impossible as they don't specify when they issue the visa (so you could miss your flight). They want to talk to my wife ex-husband and check if he consents for my own adopted son to travel. Its bullying really.

So imagine my joy when i discovered this 2004/38/EC thread. It sounds like the answer to my prayers, even though at no point border agents or consulate official informed me of its existence (where do you guys find your 'nice' border agents? I never met any).

Questions:
- i guess this means i can now just walk to the eurostar with my wife and kids and cross the border to france, correct? As long as they have their residency cards with them
- can this mean my wife can travel on her own to france to go visit my mother?
- same questions for my son, can he travel on his own to visit my mother?

Thank you a million times. I can almost see the light at the end of the tunnel

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Re: Directive 2004/38/EC thread

Post by wiz » Tue Mar 18, 2014 8:08 pm

shamimmig wrote: So imagine my joy when i discovered this 2004/38/EC thread. It sounds like the answer to my prayers, even though at no point border agents or consulate official informed me of its existence (where do you guys find your 'nice' border agents? I never met any).

Questions:
- i guess this means i can now just walk to the eurostar with my wife and kids and cross the border to france, correct? As long as they have their residency cards with them
- can this mean my wife can travel on her own to france to go visit my mother?
- same questions for my son, can he travel on his own to visit my mother?

Thank you a million times. I can almost see the light at the end of the tunnel
I am glad we can help you in some way.

Firstly I would suggest, use the link in the previous post and there find the whole Directive 2004/38/EU and print it or download so you can make copiy, to take with you to save husle.

1. You say your wife has ILR and I think she needs to have a Shegen Visa, from the French Consulate in London.
Check with their website...... for details.

2. I guess the children have a RESIDENT CARD under the Directive 2014/38/eu. Therefore they must travel together with you, or they can come to meet you, (article 5(2) without Visa).... if you are already there.
They cannot travel just alone.

3. Your wife can travel with the visa on her own but not with the children.

4. If your wife and sons are legally resident for over 5 years in the UK, your sons have PERMANENT AUTOMATIC RESIDENCY. why not apply for British Naturalisation and then get British passports, for complete freedom?

Yes I understand is very costly but gives you the freedom you want to have. That is what I have just done with my wife.... and now she is British and we applying for her British passport. After that 10 years without problems.

Hope it helps and good luck.

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Re: Directive 2004/38/EC thread

Post by shamimmig » Tue Mar 18, 2014 11:26 pm

wiz wrote: 2. I guess the children have a RESIDENT CARD under the Directive 2014/38/eu. Therefore they must travel together with you, or they can come to meet you, (article 5(2) without Visa).... if you are already there.
They cannot travel just alone.

3. Your wife can travel with the visa on her own but not with the children.

Thank you, do you think it's OK for my mother to travel with the children back to france? I guess the thing is, how does the border control agent knows I myself am in england or france? Can't they just say 'oh yeah we're coming to visit our dad'

Cheers

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Re: Directive 2004/38/EC thread

Post by wiz » Wed Mar 19, 2014 7:04 am

shamimmig wrote: Thank you, do you think it's OK for my mother to travel with the children back to france? I guess the thing is, how does the border control agent knows I myself am in england or france? Can't they just say 'oh yeah we're coming to visit our dad'

Cheers
I suggest you take a good look at the Resident stamp of your sons..... and see what exactly is written..... because
... I say maybe somebody .... can take a close look!

Good luck, whatever you do.... but you will take risks....

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Re: Directive 2004/38/EC thread

Post by Prawo » Wed Mar 19, 2014 9:16 am

wiz wrote:... take a good look at the Resident stamp ...
When I read this I fear the UK does not fully comply with EU rules.

Registration certificates for EU citizens as well as residence cards for their dependent family members HAVE TO BE issued as separate documents (thus should NEVER be a mere stamp or sticker in a passport!).
The main reason for this is that there should be no misunderstanding about their validity being not dependent on the validity of the passport.

Maybe a reason for those persons concerned to file a complaint with the European Commission and file a petition to the European Parliament simultaneously?
In due course this might change UK's malpractice.

Does anyone have an argument against this?

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