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French visa for spouse (ILR) of British citizen - documents

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Sten
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French visa for spouse (ILR) of British citizen - documents

Post by Sten » Fri Jul 23, 2010 6:08 pm

Has anyone tried to apply under this category ?

As I understand a visa would be required (no "Spouse of EEA citizen" note in the passport), but the visa will be given free of charge and itinerary/tickets do not have to be provided.

They do ask for the marriage certificate to be certified in the country of origin's embassy though, how strict is that ?

The one we've got is certified but the local embassy refuse to stamp it. What is chance of getting a vise if we send it like as it is ?

Thanks
Good luck !

Directive/2004/38/EC
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Re: French visa for spouse (ILR) of British citizen - docume

Post by Directive/2004/38/EC » Mon Jul 26, 2010 7:13 pm

Sten wrote:The one we've got is certified but the local embassy refuse to stamp it. What is chance of getting a vise if we send it like as it is ?
What do you mean by certified?

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Post by napers » Tue Jul 27, 2010 12:49 pm

Sten,
Are you just visiting France? You know a quick visit on the ferry? As opposed to emigrating? Because my recollection of that certificate authentication is you send off your wedding certificate and a payment and they send it back with a stamp saying its a wedding certificate.... a real pain.

This office I seem to recall:
http://www.legalisationoffice.org.uk/

But then if you're just visiting France, I'd just go with her ILR stamp and a wedding certificate, a bit of gumption, and just go. We've never been refused at a border, you just need to remind yourself she has a right to cross on the residents permit equivalent (her ILR stamp) if she's an EEA spouse and take some proof she's an EEA spouse, an certified UK English wedding certificate works for me.

Print out 2004/38/EC if you need to do a bit of arguing, but I've never had to argue that right with France, they all know it, and as soon as you make it clear you know it too, there just hasn't ever been an argument.

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Post by Ben » Tue Jul 27, 2010 12:59 pm

Hi napers,

You are quite right, but just one thing:
napers wrote:she has a right to cross on the residents permit equivalent (her ILR stamp) if she's an EEA spouse
The right to enter France in the company of her UK national spouse is derived from their relationship alone and is no way connected with an ILR endorsement in her passport.

Other than that, I agree with you.
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Post by napers » Tue Jul 27, 2010 1:09 pm

The right to enter France in the company of her UK national spouse is derived from their relationship alone and is no way connected with an ILR endorsement in her passport.
She has the right, but they can still insist on a visa if she doesn't have the ILR stamp (they'll try to deflect the right to saying she has a right to the visa instead). Better to use 2004/38 exemption from the visa:

2004/38/EC
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.
The residence card equivalent in the UK for this is the ILR stamp, she also needs to prove she's entitled to use 2004/38, the French consulate wants the ILR stamped 'EEA Family member' to confirm that to the border guard, although they have to accept any other proof of this.

Hence since she has the ILR stamp, I'd just take my wedding ceritifcate and a printout of 2004/38, just assert my right to cross. But as I say, I've never had a problem with French border control, they know spouses with residence stamps or permits have a right to go without a visa, they just want to check she is indeed a spouse and only wants a short visit and not to emigrate.

Your return ticket shows the short visit, the wedding certificate the spouse and the passport her id, and your UK passport, your EEA citizen ship.

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Post by 86ti » Tue Jul 27, 2010 1:20 pm

napers wrote:The residence card equivalent in the UK for this is the ILR stamp, she also needs to prove she's entitled to use 2004/38
The ILR stamp is certainly not an equivalent fo the RC. As Ben already said the ILR is meaningless in this context. The proof of entitlement to the Directive is the marriage certificate, properly certified and possibly translated into French.

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Post by Directive/2004/38/EC » Tue Jul 27, 2010 2:18 pm

napers wrote:But as I say, I've never had a problem with French border control, they know spouses with residence stamps or permits have a right to go without a visa, they just want to check she is indeed a spouse and only wants a short visit and not to emigrate.
Can you describe how it went the times you did it? Did they ask you to come into their office? Did they issue a Schengen visa or something else?

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Post by napers » Tue Jul 27, 2010 2:35 pm

Can you describe how it went the times you did it?
Directive 2004/38/EC, we went to Dover with her passport with an ILR stamp, my passport (British) and in my bag was our UK wedding certificate and a printout of 2004/38 just in case. We do not get stopped usually, not even a check, the French border control waves us through (6 crossing that way).

There has been one time when French passport control in Dover stopped us, we handed passports plus return ferry ticket to him (nothing else). He asked us if we live here (in UK), I said yes and motioned to the ILR stamp in her passport, he handed the passport back and waved us through.

So I see people beating themselves up over the visa, and I scratch my head at it, as many point out the way to use 2004/38 is to just use it and show a bit of gumption.

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Post by 86ti » Tue Jul 27, 2010 2:57 pm

It may work in Dover because you can directly talk to a French IO (and they appear to be knowledgable about EEA law. Are they at any other ferry port/St. Pancras station?) but if the OP plans to fly he would most likely not even get on the plane. And, if the Directive is mentioned in this contex it must be Article 5(4) not 5(2).

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Post by Ben » Tue Jul 27, 2010 3:00 pm

napers, your wife's passport, your passport (or National ID card) and your marriage cert is sufficient for entry to France in conformity with Directive 2004/38/EC.

The ILR stamp within your wife's passport is totally irrelevant. An ILR stamp is also not related to the residence card of a family member of a Union citizen referred to in § 10 of the Directive.
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Post by napers » Tue Jul 27, 2010 3:37 pm

napers, your wife's passport, your passport (or National ID card) and your marriage cert is sufficient for entry to France in conformity with Directive 2004/38/EC.
That's under 5(4) .
The ILR stamp within your wife's passport is totally irrelevant. An ILR stamp is also not related to the residence card of a family member of a Union citizen referred to in § 10 of the Directive.
Under 5(2) + Article 26 with my highlights,
1. Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of A RESIDENCE CARD or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by ANY OTHER MEANS OF PROOF.

I prefer to assert 5(2) + Article 26, because then the ferry company or airline is covered. I did not go to the country irregularly, I went perfectly legally with an equivalent proof of a residence card under Article 26.

Of course I've never had to do this, the ferry company never stops me, the border guards don't object. There never is a discussion on the merits, it simply never has arisen.

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Post by Ben » Tue Jul 27, 2010 3:45 pm

Respectfully, you are again failing to understand that an ILR stamp is not, nor is it related to in any way, the residence card of a family member of a Union citizen referred to in § 10 of the Directive.

ILR is issued under the Immigration Rules, not under The Immigration (European Economic Area) Regulations 2006.
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Post by 86ti » Tue Jul 27, 2010 3:45 pm

I think it must have been mentioned a few times in this thread but an ILR stamp is not a residence card based on Artcile 10 and thus you cannot use Article 5(2) or in fact most other parts of the Directive.

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Post by napers » Tue Jul 27, 2010 4:23 pm

Ben wrote:Respectfully, you are again failing to understand that an ILR stamp is not, nor is it related to in any way, the residence card of a family member of a Union citizen referred to in § 10 of the Directive. ILR is issued under the Immigration Rules, not under The Immigration (European Economic Area) Regulations 2006.
I believe I understand it, but please feel free to put me right. All I ask is you quote something more substantial to back up what your saying.

Article 10 says (my highlights):
1. The RIGHT OF RESIDENCE of family members of a Union citizen who are not nationals of a Member State SHALL BE EVIDENCED by the issuing of a document called "Residence card of a family member of a Union citizen" no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.
I assert that this card is simply evidence to a right, the right of residence in an EEA state. I assert that the ILR is the SAME EVIDENCE to the same right of residence in an EEA. I assert that Article 26 applies, that it is equivalent proof of right to residence in an EEA state.

I assert that Article 10 shows that the card evidences RIGHT OF RESIDENCE, not a very narrow right of residence which grants the right to cross a border without a visa. Thus it could never have been the intention to make a special right of residence which grants the right to cross a border without a visa. Thus it has the same purpose as Article 10 permits and thus whichever national law grants it has no bearing.

Your counter argument is....

(Edited to spell out that to be true, Article 10 would have to grant a right of EEA residence with special privileges, distinct from a right of EEA residence).

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Post by 86ti » Tue Jul 27, 2010 5:10 pm

napers wrote:I assert that this card is simply evidence to a right, the right of residence in an EEA state. I assert that the ILR is the SAME EVIDENCE to the same right of residence in an EEA.
And that's the flaw in your argument. You would have to answer why there is the need for two fundamentally different laws if they documented the very same thing? Or put differently: why did you pay hundreds if not thousands of pounds to obtain that ILR for your spouse while (permanent) residence card holders paid exactly zero?

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Post by napers » Tue Jul 27, 2010 5:41 pm

You would have to answer why there is the need for two fundamentally different laws if they documented the very same thing?
32 different laws to obtain the same thing surely (French system grants right of residence in an EEA country, UK system grants right of residence to an EEA Country, and 30 other EEA countries have 30 other laws all of which grant residence in an EEA country).

They're no fundamental difference in the context of Article 10, because Article 10 defines it as a paper that evidences a right of residence in an EEA country and all 33 (32+1) are the same in that context.
"Or put differently: why did you pay hundreds if not thousands of pounds to obtain that ILR for your spouse while (permanent) residence card holders paid exactly zero?"
Because they didn't, a French person with non-EEA spouse would have paid the French costs plus zero when they transferred to the UK, likewise a Brit paid the UK costs of settlement visa plus zero to transfer to France.

Let me put it this way to you.

I get an EEA permit for my Spouse issued before 2004. How could it be issued under Article 10, if Article 10 didn't exist yet. Yet every country behaves as if it was. All of them recognize EU family residence permits issued under previous laws as issued under Article 10. Even though it was issued under a previous EU law. Ergo equivalence is what countries are doing now.

So it's too late for them to pretend that Article 10 2004/38 residence permits are special and only those grant this special visa free right simply by virtue of being issued under Article 10.

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Post by 86ti » Tue Jul 27, 2010 6:20 pm

napers wrote:They're no fundamental difference in the context of Article 10, because Article 10 defines it as a paper that evidences a right of residence in an EEA country and all 33 (32+1) are the same in that context.
No. A residence card documents the rights under the very specific conditions laid out in the Directive and related case law. If there is no EEA context ("cross-border element") the Directive simply doesn't apply. In your case this only comes into play when you cross the border but not before. The ILR was still issued under national legislation and this is evidence that it is legally something entirely different.

napers wrote:I get an EEA permit for my Spouse issued before 2004. How could it be issued under Article 10, if Article 10 didn't exist yet. Yet every country behaves as if it was. All of them recognize EU family residence permits issued under previous laws as issued under Article 10. Even though it was issued under a previous EU law. Ergo equivalence is what countries are doing now.

Do they? Just because they do doesn't mean that your assertion of equivalence is true. And even if it is handled in this retrospective way it doesn't change the fact that the permit was issued under EU and not national law. An ILR stamp does not fall within the scope of Article 10.


BTW, don't bother convincing me. We are moving in circles here anyway.

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Post by Directive/2004/38/EC » Tue Jul 27, 2010 6:46 pm

What is the citizenship of your wife?
napers wrote:There has been one time when French passport control in Dover stopped us, we handed passports plus return ferry ticket to him (nothing else). He asked us if we live here (in UK), I said yes and motioned to the ILR stamp in her passport, he handed the passport back and waved us through.
You stayed in the car the whole time? Did even bother stamping the passport?
napers wrote:So I see people beating themselves up over the visa, and I scratch my head at it, as many point out the way to use 2004/38 is to just use it and show a bit of gumption.
I flew to Dublin with my wife for day trip. She did not have a "required" visa. The border guard's boss was acting a bit of a jerk, but the border guard himself was fine. Passports+marriage certificate= entry to Ireland.

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Post by napers » Tue Jul 27, 2010 7:30 pm

No. A residence card documents the rights under the very specific conditions laid out in the Directive and related case law.
Very specific conditions? Which specific conditions under Article 10 are not also filled by every other EEA Residence permits, except for being issued under Article 10 itself?

You said:
An ILR stamp is not a residence card based on Artcile 10 and thus you cannot use Article 5(2)
You see your previous argument is that its special because it's issued under Article 10, i.e. the only specific condition you have argued is the article number/law it is issued under.

And ignoring Article 26 equivalent proof at that.
Do they? Just because they do doesn't mean that your assertion of equivalence is true.
Reverse that, if you are saying that non-equivalent things are ones NOT issued under Article 10 of 2004, then you break your argument by also apply it to permits issued under the national versions of 68/360/EEC....

So when France treats permits issued under it's equivalent of 68/360 as equivalent to 2004/38, it then can't argue that Article 10 is special.

"An ILR stamp does not fall within the scope of Article 10."

And Article 26 doesn't apply because.... (fill in the blank).
BTW, don't bother convincing me.
It's a football match, you don't try to convince the other team they lost, you try to convince the referee.

Even if you don't agree that Article 5(2)+Article 26 works, until somebody actually is prepared to stop us crossing the border, its moot anyway.

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Post by 86ti » Tue Jul 27, 2010 7:47 pm

napers wrote:
86ti wrote:No. A residence card documents the rights under the very specific conditions laid out in the Directive and related case law.
Very specific conditions? Which specific conditions under Article 10 are not also filled by every other EEA Residence permits, except for being issued under Article 10 itself?
The EEA national needs to exercise treaty rights for the non-EEA family member to be entitled to a residence card. There are no EEA residence permits issued under Article 10 even though you claim that legacy permits issued under now obsolete laws are treated as such.

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