Directive 2004/38/EC thread

[Richard66]

As previously mentioned, it is only a Residence Permit for the purposes of avoiding a visa if it meets the standards set out in Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third-country nationals.

But Mark, Article 5 says this Regulation does not apply to family members of citizens exercising treaty rights.

[irish_ruskei]

Em, who's Mark?

[John]

Looking back through this topic the answer is .... member mym .... whose signature includes "Mark".

[mym]

As previously mentioned, it is only a Residence Permit for the purposes of avoiding a visa if it meets the standards set out in Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third-country nationals.

But Mark, Article 5 says this Regulation does not apply to family members of citizens exercising treaty rights.

I know, but the day-to-day consular business is conducted according to the CCIs, not the Regulations...

As Signpost recently commented to me: "Regrettably, at present the Schengen Agreement does not make a distinction according to non-EU nationals who have no family ties to EU citizens and those who are family members exercising their EU rights to free movement. As a result, the consular authorities currently apply the requirements of the Schengen Agreement in full as regards the documentation necessary for the issue of visas. "

[irish_ruskei]

So far, the embassies of the UK, Malta, Czech Rep, Latvia, Hungary and this morning Lithuania have told me that my wife can get a visa at the entry point into their respective countries. I am still looking for explanations from other member States. The Belgians and Dutch sem to think that the airlines would not let my wife board without a visa so I will also be checking with the airlines to make sure that they are aware of the relevant section in Directive 2004/38/EC.

The Danes and French said my wife needs a visa beforehand...then I asked them to explain:

Chapter 2, Article 5.4 states:

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

They said they would not explain it!

[boburo1]

Hi I'm British living in the Netherlands. My partner & child are Kenyan living in Kenya. We have not lived together.

If I understand correctly, we would have to marry to be able to take advantage of 2004/38. If we marry then in order to visit Europe, would that be seen as a marriage of convenience? Or is our child sufficient proof that the marriage is 'for real'?

Then we just fetch a free visa at the Dutch Embassy (am I right?) & buy a ticket to NL. What do I need to know about travelling via London (the tickets are cheaper than flying direct)?

Thanks.

[John]

Are you actually wanting them to visit Europe? Or are you wanting to live in Europe with you? And indeed live with you in the Netherlands?

If so, yes get married in Kenya, when safe to do so, then as you say apply at the Dutch embassy in Kenya.

Transit via the UK? Kenyans are subject to the DATV .. direct airside transit visa ..... requirements, so at first glance a DATV visa would also be required from the British Embassy if the flight is going to be via the UK ..... except :-

It looks like the Dutch visa would be one of the following :-

• a valid common format Category D visa for entry to a European Economic Area (EEA) State;
• a valid common format residence permit issued by an EEA State pursuant to Council Regulation (EC) No. 1030/2002

-: in which case, once the Dutch-issued visa is in the passport, there would be no requirement for a UK-issued DATV. So flight via the UK would be OK. But do appreciate that they would need to remain airside, and not allowed to enter the UK as such.

Actually, your child? Has the child got a British Passport? Are you named as the father on the birth certificate?

Marriage of convenience? I think the existence of the child proves otherwise. But don't skimp on the supporting evidence to show the relationship is real.

[boburo1]

Thanks John.

Are you actually wanting them to visit Europe? Or are you wanting to live in Europe with you? And indeed live with you in the Netherlands?

Yes, visit me and/or live with me. Is there a distinction in 2004/38?

Has the child got a British Passport?

As I understand, this is not possible before his parents (British non-resident father & foreign mother) marry.

Are you named as the father on the birth certificate?

Yes.

They would need to remain airside

So it's not possible to fly out of Gatwick, for instance, or to travel on by bus?

[John]

As I understand, this is not possible before his parents (British non-resident father & foreign mother) marry.

When was the child born? More specifically, was the child born before 01.07.06? Or alternatively on or after 01.07.06? If the latter than do note that the law changed in respect of such births and accordingly the child would already be British. "Just" a question of applying for a British passport for the child? The child was born in Kenya? Is living there now? Apply at the BHC in Kenya for the passport.

A bit more complicated if the child was born before 01.07.06.

So it's not possible to fly out of Gatwick, for instance, or to travel on by bus?

Well no! To enter the UK a UK visa would be required. So you need to look for connecting flights from say Gatwick to Schiphol, or wherever in the Netherlands.

I don't know what the cost differential is but it would cut out a lot of hassle flying direct to Schiphol.

[JAJ]

As I understand, this is not possible before his parents (British non-resident father & foreign mother) marry.

When was the child born? More specifically, was the child born before 01.07.06? Or alternatively on or after 01.07.06? If the latter than do note that the law changed in respect of such births and accordingly the child would already be British. "Just" a question of applying for a British passport for the child? The child was born in Kenya? Is living there now? Apply at the BHC in Kenya for the passport.

A bit more complicated if the child was born before 01.07.06.

But not much more complicated - all that's needed is an application for registration as a British citizen to be submitted to the Home Office.

[boburo1]

Great news about the child being British. Thanks.

I don't know what the cost differential is but it would cut out a lot of hassle flying direct to Schiphol.

About €100 per person. I understand from "UK's DATV Regime" on this BHC page that, if we stay airside, a DATV is unneccessary. If however we want to change airports (I've already booked myself Nairobi to Heathrow, then less than 48 hours later Gatwick to Schiphol), we would need a transit visa for my partner @ Ksh6200. Would you agree? Any experience of how much or what kind of hassle?

[John]

For the reasons already stated, once the Dutch-issued visa is in the passport, there is no need to get a DATV, merely to change planes inside the same airport.

But not sure a DATV is appropriate to change airports. I think she would need a proper Visitor Visa. Also, given that the application for a UK Visitor Visa would be made after the Dutch-issued visa is in the passport, I would not expect any particular problem getting the Visitor Visa, especially if it is explained that the intention is to leave the UK shortly after arrival.

Getting the Visitor visa would give total flexibility to the mode of travel from say Gatwick. Coach, air or indeed train .... using the Eurostar from London to Brussels, before going on to the Netherlands.

But the difference only €100? Even if that is €100 each, still think it is a lot of hassle not flying direct to the Netherlands. Anyway cheaper to fly anywhere in the Schengen area? Paris? Brussels? Frankfurt? etc etc . The point is that if she already has the Dutch-issued visa in her passport then she will have no problem entering the Schengen area anywhere and then travelling on to the Netherlands.

[JA13I]

Adding on to further experiences about travel on the Residence Card of family member of EEA national, the latest was Italy with the PoE being Milan.

As expected of the Italians, they did give us ard time and refused to let us go and send us back to the transit lounge to wait the whole 12 hours before our connecting flight to Dubai. But after we went back toto another IO and had a word .... which lasted for over an hour they reluctantly let us go, but warned us against travelling without a Schengen visa the next time.

[JA13I]

The Germans seems to have gotten on track as well.

http://www.london.diplo.de/Vertretung/l ... seite.html

You DO NOT need a visa for Germany short stays if you are:


.......
a family member of an EEA national if you hold a British Residence Card.

[esam]

Hi. This is a great thread.

I am a British citizen, working in Denmark. Formerly I was working in Mozambique and am planning to marry my Mozambican girlfriend and bring her to reside with me in Denmark.

Problem – Danish authorities tell me that because she is both a non-EU citizen AND not yet residing in the EU then no special freedom of movement treatment applies to her, even after marriage . They tell me she must apply for residence under the standard national Danish immigration procedures (as if I was, say, Mexican) which may lead to the imposition of various requirements e.g., depositing a bank guarantee of £5k and even requiring we have greater attachment to Denmark than to another country (which is impossible!).

My reading of the relevant EU Directives is that this cannot be correct. However perusal of other threads suggests that there is some confusion here. For example, one comment was: “... some Member States consider that Directive 2004/38/EC only provides for free movement between Member States, that the non EU family member entering into the EU for the first time falls outside of the Directive and will be considered under national legislation; once legally resident in a Member State the family member can then exercise free movement rights under the Directive.â€

[mym]

Legally resident includes visitors. Get a visitor visa for some part of the EU for her then apply for a residence permit when she is in Denmark.

See http://www.nyidanmark.dk/resources.ashx ... 45_eng.pdf

Specifically 2 and 6.

[Directive/2004/38/EC]

Legally resident includes visitors. Get a visitor visa for some part of the EU for her then apply for a residence permit when she is in Denmark.

See http://www.nyidanmark.dk/resources.ashx ... 45_eng.pdf

Specifically 2 and 6.

See the following link for more examples from UK and Irish legislation about family members of EU citizens being resident for even short periods of time.... http://eumovement.wordpress.com/2007/06 ... -question/

[esam]

Thanks. Very helpful. However, danish authorities also tell me that they would deny her a >3 month residency permit "because she was not residing in the EU prior to arrival in denmark".

So what you are saying is that as long as we pass through another Member State (not the UK) and THEN come to Denmark they would not be in a position to refuse the residency?

Talk about unnecessary legal arbitrage....

[Directive/2004/38/EC]

Thanks. Very helpful. However, danish authorities also tell me that they would deny her a >3 month residency permit "because she was not residing in the EU prior to arrival in denmark".

So what you are saying is that as long as we pass through another Member State (not the UK) and THEN come to Denmark they would not be in a position to refuse the residency?

Look, the Danish goal is to discourage your wife from coming. But they are not working from very solid ground. It is not clear that the prior residence requirement is legal, but lets assume it is for a minute.

If you can make a case that she was legally residing in another member state, then they have no excuse. And it is pretty clear that EU law thinks of both short periods and long periods as “residenceâ€

[86ti]

Hello,

I just got a mail from the Austrian Embassy in London. They told me that they are aware of the directive and the Schengen handbook but are still awaiting instructions from Austria, i.e. their webpage still says that visa for non-EEA spouses would be necessary. A member of the Austrian NGO helping hands, on the other hand, told me that visa free entry would be possible already now. Anyway, I was wondering what would happen if we entered Austria from Germany which accepts the UK residence card. Police is allowed to check IDs.

In a mail from the Estonian Ministry of Foreign Affairs I was told that spouse visas are still necessary. Their web page mentions that only Swedish residence cards (pursuant to the directive) entitle to visa free travel.

[Directive/2004/38/EC]

I was wondering what would happen if we entered Austria from Germany which accepts the UK residence card. Police is allowed to check IDs.

As long as you are travelling with your EU citizen spouse, you will be fine. They can check away as much as they want – you will be legally resident in that EU country. (Until Europe sorts out this mess you should always travel with your marriage certificate in order to prove the relationship with the EU citizen, and it may be worth keeping the emergency number for consular services of the UK embassy)

In a mail from the Estonian Ministry of Foreign Affairs I was told that spouse visas are still necessary. Their web page mentions that only Swedish residence cards (pursuant to the directive) entitle to visa free travel.

Do you have a link to the web site that talks about this? There is no point in mentioning this and not providing the link!

[86ti]

In a mail from the Estonian Ministry of Foreign Affairs I was told that spouse visas are still necessary. Their web page mentions that only Swedish residence cards (pursuant to the directive) entitle to visa free travel.

Do you have a link to the web site that talks about this? There is no point in mentioning this and not providing the link!

Here the missing link
http://www.estonia.gov.uk/consular_information/visa

Look towards the bottom of the page (point 2). The text appears to be same on their other embassy webpages.

[86ti]

Some interesting news: I contacted the Austrian Embassy again to clarify.

They told me that they urged the consular section of the Austrian ministry of foreign affairs for an answer. I have also been told that in a recent meeting with the EU partners in London the implementation of the directive was discussed: so far only THREE countries including Germany have implemented the directive.

Germany has been already mentioned in this thread (see JA13I's posting from Mar 19, 2008 above). Interestingly also the Austrian embassy in Berlin, Germany, writes that residence permits from EEA member countries entitle to visa free entry. Link in German:
http://www.bmeia.gv.at/botschaft/berlin ... ation.html

[Directive/2004/38/EC]

They told me that they urged the consular section of the Austrian ministry of foreign affairs for an answer. I have also been told that in a recent meeting with the EU partners in London the implementation of the directive was discussed: so far only THREE countries including Germany have implemented the directive.

Huh? Most (or all?) of the EU countries have now passed the Directive 2004/38/EC into law.

But then I guess it depends what they mean by "implemented". Any idea what was meant exactly?

[86ti]

They told me that they urged the consular section of the Austrian ministry of foreign affairs for an answer. I have also been told that in a recent meeting with the EU partners in London the implementation of the directive was discussed: so far only THREE countries including Germany have implemented the directive.

Huh? Most (or all?) of the EU countries have now passed the Directive 2004/38/EC into law.

But then I guess what they mean by "implemented". Any idea what was meant exactly?

I have not the faintest idea! Somehow I got the feeling that the people answering me didn't really have a clue what they are talking about, e.g. in the first mail the sender was not sure if Austria had accepted the directive!

So my guess is probably the same as yours: the interpretation and implementation may vary in the countries (just look at Austria's recent 'residence law').