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Non-EU Spouse Visa Refused because didn't visit Belgium

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jenlemon
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Non-EU Spouse Visa Refused because didn't visit Belgium

Post by jenlemon » Tue Dec 18, 2012 10:01 am

My husband, a non EU national was refused a Schengen Visa from the Belgian Embassy today in London. The reasons given included a lack of proof of financial means, a lack of hotel booking etc - all reasons that are irrelevant under the EU directive 2004/38/EC.
My husband has had 4 previous Schengen visas - 2 of these were granted by the same Belgian embassy in London, however under the last visa they granted, we had to change our travel plans to visit Belgium due to a series of Eurostar Strikes.
My belief is that the visa was denied solely because the last visa was not used to visit Belgium (this was another reason given) and is an act from the embassy to prevent what they consider to be 'visa shopping'.
My husband visited Belgium with the first visa he was granted and therefore does not have a 'history' of applying for visas and failing to visit the Schengen member state he has applied with.
We had made plans to travel on Dec 22nd (the visa application was lodged 4 weeks ago today) which we believe should be honoured and the visa granted.
Does anyone have any experience with this?
I have a British Passport and my husband an Iranian passport + Indef Leave to Remain.
We have flights to Gibraltar this Saturday and had planned to cross the border into Spain and make our way up (eventually via Belgium) and back to the UK.

I have thought long and hard about attempting to cross the border at Spain with passports + marriage cert + copies of EU directive in Eng/Esp but given the Iran tensions + Gibraltar/Spain tensions - this seems unlikely to be successful.

*I have already emailed every European consulate in Gibraltar and they don't issue visas. They just seem to sip gin and tonics and not much else.

Any advice - please help.

dublin3
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Re: Non-EU Spouse Visa Refused because didn't visit Belgium

Post by dublin3 » Tue Dec 18, 2012 5:14 pm

jenlemon wrote:My husband, a non EU national was refused a Schengen Visa from the Belgian Embassy today in London. The reasons given included a lack of proof of financial means, a lack of hotel booking etc - all reasons that are irrelevant under the EU directive 2004/38/EC.
My husband has had 4 previous Schengen visas - 2 of these were granted by the same Belgian embassy in London, however under the last visa they granted, we had to change our travel plans to visit Belgium due to a series of Eurostar Strikes.
My belief is that the visa was denied solely because the last visa was not used to visit Belgium (this was another reason given) and is an act from the embassy to prevent what they consider to be 'visa shopping'.
My husband visited Belgium with the first visa he was granted and therefore does not have a 'history' of applying for visas and failing to visit the Schengen member state he has applied with.
We had made plans to travel on Dec 22nd (the visa application was lodged 4 weeks ago today) which we believe should be honoured and the visa granted.
Does anyone have any experience with this?
I have a British Passport and my husband an Iranian passport + Indef Leave to Remain.
We have flights to Gibraltar this Saturday and had planned to cross the border into Spain and make our way up (eventually via Belgium) and back to the UK.

I have thought long and hard about attempting to cross the border at Spain with passports + marriage cert + copies of EU directive in Eng/Esp but given the Iran tensions + Gibraltar/Spain tensions - this seems unlikely to be successful.

*I have already emailed every European consulate in Gibraltar and they don't issue visas. They just seem to sip gin and tonics and not much else.

Any advice - please help.
Hi,
Never had problem getting visa from Belgian embassy in Dublin. I got my first visa in 2009 which I used for 2 days visit after that I got 3 visas from Belgian embassy every time visa was granted with in two or three days and I couldn't travel on those visa. In October I applied again to visit Belgium again for 5 days and and lady asked me on the counter if I would travel this time or no. I said yes and I received my passport 6 days later in the post with 25 days visa in but this time I traveled to Belgium.
I am also family member of an EU Citizen and if I am traveling with my wife I don't need visa to visit Belgium.

I hope that helps.

Regards,

EUsmileWEallsmile
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Post by EUsmileWEallsmile » Tue Dec 18, 2012 7:07 pm

Firstly, the Belgians were incorrect in not issuing the visa for the reasons stated. Complain to them and to the EU commission.

Secondly, if you can get to Gibraltar with ILR, then you have a physical border with Spain. You can enter using article 5.4 of directive 2004/38/EC.

You appear to be pretty knowlegeable already.

jenlemon
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Belgium Embassy London Fiasco

Post by jenlemon » Tue Dec 18, 2012 7:39 pm

OK - so this is a long posting but I think it will interest others to hear about my experience.

Since this morning I have been emailing with the Consul at the Belgian Embassy who have given a very inconsistent response. On the form they stated that my husband didn't supply proof of funds, intent to return (ILR isn't proof to return?) or a hotel booking and they are now fumbling around this nonsense visa shopping issue.

I'm pasting the entire correspondance I've had with them today below:

FIRST TWO EMAILS TO THE EMBASSY

Dear Mr xxx,

My husband xxxxx, an Iranian national, was today refused a Schengen Visa by your embassy. The reasons given included a lack of proof of financial means, a lack of a hotel booking - all reasons that are irrelevant under the EU directive 2004/38/EC. We supplied my UK passport, my husband's Passport and UK residence card for Indefinite Leave to Remain, and our marriage certificate with the application as required.

My husband has had 4 previous Schengen visas - 2 of these were granted by your embassy, however under the last visa you granted we had to change our travel plans to visit Belgium due to a series of Eurostar Strikes.

My belief is that the visa was denied solely because the last visa was not used to visit Belgium and is an act from your embassy to prevent 'visa shopping', however I can assure you that our intentions to visit Belgium are genuine and sincere and ask that you reconsider the refusal. My husband visited Belgium with the first visa he was granted by your embassy and does not have a history of applying for visas and failing to visit the Schengen member state he has applied with.

We have made plans to travel on Dec 22 (the visa application was lodged 4 weeks ago today). I would therefore request you to please reconsider my husband's request for a visa and issue it as you are required by law, as a matter of urgency.

Please note that I have also sought preliminary legal advice from xxxx from the London branch of the EU's Solvit channel who have advised me that "I am aware that Belgium is under an obligation to issue visas to citizens whose main destination is Belgium". I have copied xxxx so that I might continue to pursue a formal complaint if this becomes necessary.

To assist you in dealing with our case, I am providing our names and passport details.

xxxxx
D.O.B xxx
Passport: Iran
Passport No: xxxx

xxxx
D.O.B - xxxxxx
Passport: Great Britain
Passport No: xxxxx


Regards,
xxxx

------
Dear Mr. xxxx,

Further to my email this morning regarding a visa your embassy has refused for xxxxx, I have been taken advice from the London branch of SOLVIT. (see below)

I would like to suggest that my husband and I submit travel documents to Belgium as proof of our intention to visit Belgium as our first and primary member state. Would you accept this as sufficient evidence to grant my husband his visa?

With regards,
xxxx
----

THEIR RESPONSE

Dear xxxx,

Thank you for your emails.

Your husband's application has been denied by our authorities in
Brussels because of a repeated incorrect use of our former multiple
entries visa: it appeared that it was used to travel to different other
countries (France, Poland, Portugal, Spain, Netherlands, Italy, Hungary)
whereas not a single Belgian entry stamp could be found in his passport.
Applying with us means that Belgium will be the applicant's main
destination in the Schengen area.

Please note that after any denial of a previous visa, the general
instructions prescribe that we are bound to submit the new visa
application to our authorities and that we cannot issue the visa ex
oficio.

Your husband can of course re-apply and if you provide the proposed
evidence we will transmit that information together with the new
application to our Ministry of Interior who will then decide about it.

Best regards,

xxxx
consul
----

MY REPLY

Dear xxx,

Thank you for responding to me so promptly.

I'm afraid your information is incorrect. We have travelled to Belgium on more than one occasion via Eurostar. I am attaching a photo of the exit stamp from Brussels Zuid overlaid on my husband's previous Schengen Visa granted by your embassy as evidence to confirm this.

I appreciate the embassy's view on limiting visa shopping - however your assumptions with regards to my husband's case are unwarranted and the visa has been unfairly and wrongly denied.

Given the proximity to Christmas and the fact this decision has been made in error, I would appreciate any reconsideration you could give to granting my husband's visa or to have the visa approval expedited in Brussels so that we might proceed with our plans.

Best regards,
xxxx

----
THEIR RESPONSE

Dear xxxx

The enclosed photograph of an exit stamp from Brussels corresponds to our 1st visa which was issued for a single entry at the time. That visa was indeed used correctly and precisely therefore we gave afterwards to Mr. xxxx a multiple entries visa valid during 6 months. The problem is that the 2nd visa has been used only to visit other Schengen countries, which is incorrect. We (and Brussels) have no trace at all of any entry in Belgium with that multiple entries visa…..

As already mentioned I am not authorized to reconsider a decision taken by our authorities in Brussels. Mr. xxxx is most welcome to re-apply for a Schengen visa with us if he wants to. This is the only way to possibly obtain the requested visa to go to Brussels.

Kind regards
xxxxxx
consul

---
MY FINAL RESPONSE

Dear Mr. xxxx,

Thank you for your response. As we appear to have reached a point where we cannot progress, I have been obliged to lodge a complaint for the way your embassy staff, and the ministry of foreign affairs in Brussels have handled my husband's case.

As you must be well aware, the only reason the Belgian authorities can refuse a Schengen visa to a non EU family member is if that person presents a genuine danger to public policy, public security or public health. In addition, you are obliged to tell us in writing how you judged that my husband is a genuine, present and sufficiently serious threat.
There is nothing in our correspondance to indicate that the Belgian authorities have found any evidence of this nature.

The sole reason I can ascertain for the refusal is a failure to understand and correctly apply EU law.

Finally - you have invited my husband to reapply for another visa at your embassy. Given that the conditions (one Schengen visa with no Belgian entry/exit, the other used correctly) would be identical - what possible reason would there be to expect a more positive outcome?

Best regards,
xxxx

---

So a totally inconsistent response from the embassy and a total unwillingness to correct their error.


Who should I complain to aside from SOLVIT? I've written to them today and they aren't seeming super willing to help. (see below) Is there anyone more effective? I don't think the Belgian embassy or MFA should be allowed to show such blatant disregard for EU Law.


CORRESPONDANCE WITH SOLVIT (so far)
-----

Good morning Ms xxxx

I am responding to your complaint to SOLVIT about the decision of the Belgian Embassy to refuse your husband a visa.

I am aware that Belgium is under an obligation to issue visas to citizens whose main destination is Belgium, but a previous refusal should not have an impact on any future applications.

SOLVIT is a network that has ten weeks in which to obtain a practical solution to a problem. We are not able to provide a practical solution in respect of travel arrangements in four days, and we are not able to obtain any reassurances about future applications that are not yet in place. A formal complaint about a refusal incorrectly issued should be addressed in the first instance to the Embassy

Regards

xxxx
UK SOLVIT Centre
Direct line: xxxx

----
Dear Ms xxxx,

Thank you for getting back to me so quickly. I am aware of Solvit's remit and not expecting that Solvit will be able to resolve my issues within 4 days. I am however hoping that by making the Belgian Embassy aware that I am informed about my rights and willing to pursue them via an official channel, they may relent and grant my husband the visa he is entitled to.

I have written again to the embassy presenting them with the facts and asking them to reconsider their refusal and respect existing EU laws. If there is any form of support you could lend to this matter in the form of a simple phone call or email, it would be gratefully appreciated. I took the liberty of cc'ing you on my email to the embassy - I hope you can appreciate my desperation given the proximity to the Christmas holidays.

With best regards,
xxxx

-----
Hello Ms xxxx

I should advise that you can be required to provide evidence that you are travelling together to Belgium, with your application. Article 3 of Directive 2004/38/EC states that the legislation applies only to citizens who are travelling with or to meet their EU sponsor. It is therefore in line with the Directive that Belgium requires evidence that you are travelling together to Belgium, and in order to take forward a complaint that Belgium is in breach of the Directive, I would need to see evidence that you had shown clearly that you are travelling together with the application documents.

xxxxx
UK SOLVIT Centre
Direct line: xxxx

-----
Hi Ms xxxx,

We have not been asked to supply any proof of travel to Belgium by the embassy. In the past, before I became a UK citizen, we were usually asked for this as the final step before the visa was approved. We were not however asked, now that I am an EU citizen, to supply any proof of travel arrangements this time.

Surely the embassy has to ask us for these documents, instead of simply refusing the application? I would be more than happy to supply proof of travel documents to the embassy if this would cause the visa to be granted.

If you are in any position to liase with the embassy on our behalf and propose that we provide proof of travel to resolve this issue, I'd be extremely grateful. Otherwise, I continue to be appreciative for your assistance and advice.

Best,
xxxx

----
Hello xxxx

I am not able to call the Belgian Embassy on your behalf. You might however make this suggestion in your communication with the Embassy.

xxxx

------
I then forwarded her the email response I had from the Belgian embassy below

Dear Ms xxxx,

Can I ask you to provide a view on the below?

It states here (http://europa.eu/youreurope/citizens/tr ... #need-help) that a visa can only be refused on the grounds of "public policy, public security or public health" and that in order to refuse a visa application "the authorities must prove that you or your family members pose a genuine, present and sufficiently serious threat".

I do not think the reasons provided below by Mr xxx from the Belgian embassy meet these criteria. In addition, we have been given no opportunity to present proof of our intention to travel to Belgium or present evidence that we had intended to travel under the second visa we were granted and were prevented by strike action. (I am able to provide evidence in both cases)

For these reasons and due the constantly changing and inconsistent responses for the refusal that have been given to us (lack of funds, no hotel booking, no stamp found in passport, no stamp for second visa) I would like to pursue a complaint against the embassy for failing to correctly apply EU law.

Kind regards,
xxxxx


-------------

I am so mad and determined that I think we are going to try and enter via the border with Spain from Gibraltar. I'll look at 5.4 of the directive but...
aside from the UK/Chinese couple who did a lap of honour at CDG in Paris, has any UK passport holder with a non EU spouse and a marriage certificate ever managed this successfully?

EUsmileWEallsmile
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Post by EUsmileWEallsmile » Tue Dec 18, 2012 8:25 pm

It is interesting that Beligium has several borders with countries that your husband entered the shengen zone on the occasions stated.

How can they be sure that he did not visit Belgium (unless you have now told them)?

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Post by EUsmileWEallsmile » Tue Dec 18, 2012 8:32 pm

Others have posted that UK solvit are not particularly helpful. It is possible to complain direct to the EU commission (don't expect this to be addressed quickly).

jenlemon
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Belgium Embassy London Fiasco

Post by jenlemon » Tue Dec 18, 2012 8:32 pm

No, I haven't told them. In fact when you travel from London to Brussels with Eurostar your entry stamp is actually from the French authorities since you pass through Lille first. Surely they must know that.

I think it's all just a very narrow stab at justifying a decision that was completely incorrect.

The question though is what recourse do I have? Solvit don't seem as interested as I think they should be at such a blatant abuse of EU law.

Do you know of anyone who has successfully entered the Schengen area on the back of 2 passports (1 EU 1 nonEU), UK residence permit + marriage license? We won't have time to get an official translation of the marriage license or any apostilles either - so am weighing up Xmas in Gibraltar over just staying home.. :(

jenlemon
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Belgium Embassy London Fiasco

Post by jenlemon » Tue Dec 18, 2012 8:36 pm

Aha - thanks. I found the complaints area on the EU Commission website:
http://ec.europa.eu/eu_law/your_rights/ ... hts_en.htm

I know nothing will happen to change things for me, but I don't think the Belgian Embassy should be able to get away with treating people this way. They are the home of the EU after all...
Last edited by jenlemon on Tue Dec 18, 2012 8:37 pm, edited 1 time in total.

EUsmileWEallsmile
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Post by EUsmileWEallsmile » Tue Dec 18, 2012 8:36 pm

With three days to go, unless you can persuade the Belgians to change their stance, you can try the 5.4 route (MRAX).

You will need evidence that you are married. Does your husband's IRL state that?

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Re: Belgium Embassy London Fiasco

Post by EUsmileWEallsmile » Tue Dec 18, 2012 8:39 pm

jenlemon wrote:No, I haven't told them. In fact when you travel from London to Brussels with Eurostar your entry stamp is actually from the French authorities since you pass through Lille first. Surely they must know that.(
I would point that out to them and don't leave anything to chance. The visa rules state that one should apply at the country of main destination or of first entry if there is no main destination. There is an element of flexibility in this and of course people's plans can and do change.

jenlemon
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Belgium Embassy London Fiasco

Post by jenlemon » Tue Dec 18, 2012 8:40 pm

I have tried everything with the Belgians - they only say that we are 'most welcome to reapply' but that they wouldn't be able to issue any new visas until the new year at the earliest.

The ILR card never says anything about family members or marriage. It simply isn't one of the pieces of data they include when they print the cards. All we have is my name on my husband's fiance visa from when he first came to the UK 3 years ago + our marriage certificate from the Town Hall in our London Borough where we got married.

I can imagine a Spanish Border guard at the 'walk across' border in Gibraltar being a bit clueless and not really in the mood given UK/Spain relations to show much interest.

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Post by EUsmileWEallsmile » Tue Dec 18, 2012 8:48 pm

If you can prove you are married, the Spanish must let you pass. Be prepared, expect perhaps a wait, but understand your rights.

jenlemon
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Belgium Embassy London Fiasco

Post by jenlemon » Tue Dec 18, 2012 8:52 pm

We're going to try. I am also trying to obtain a 'Note Verbale' from one of the Consulates in Gibraltar which can only help. I am trying to cover all my bases so that we will be allowed in.

I'll let you know what happens.

Directive/2004/38/EC
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Post by Directive/2004/38/EC » Thu Dec 27, 2012 12:56 pm

I hope you made it. http://eumovement.wordpress.com/2010/08 ... to-travel/ may be useful for future reference. Please let us know about the Belgian embassy and about crossing into Spain.

jenlemon
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Belgium Embassy London Fiasco

Post by jenlemon » Thu Dec 27, 2012 7:47 pm

Well - we made it. After much campaigning and many emails, I got the visa decision overturned at the 11th hour and on Friday morning my husband was able to go and get his visa issued at the Belgian Embassy.

In the end I did three things:

1. I continued emailing the Consul at the embassy in London and cc'ing in the member of SOLVIT to add pressure. While I managed to get SOLVIT to agree to pursue a complaint against the embassy for me if we submitted another visa request + proof of travel to Belgium and it was turned down, no one was willing to do anything in time for Christmas. The Consul at the embassy just repeated that he had no power to authorise Visas 'ex-officio' and that everything had to go through Brussels via a completely new visa application.

2. I wrote directly to the Ministry of Foreign Affairs in Brussels, to the attention of the director-general of the immigration department. I sent a similar email to the one I'd sent to the embassy insisting that my husband was entitled to the visa and quoting the directive. One working day later I had a reply from a caseworker from the 'Short Stay' unit saying she was going to contact the embassy in London and look in to my case. The following day I got the following email:

-----

Dear Misses XXXXX,


The embassy did not fully inform us about the fact that Mister XXXXX intended to travel with his British spouse, therefore we have now changed the decision.
Ofcourse you shall have to give the proof that you will travel with your husband to Belgium or that he will join you in Belgium.


Best regards ,

XXXX
Wnd. Adviseur
T XXX
F XXX
XXXX@dofi.fgov.be

FOD Binnenlandse Zaken | SPF Intérieur
Dienst Vreemdelingenzaken - Office des Etrangers
Kort Verblijf - Court Séjour
Antwerpsesteenweg 59 B - Chaussée d’Anvers
1000 Brussel – Bruxelles

Then a few minutes later I received this email from the consul who I'd been pleading with all week:

Dear Mrs. xxxx

Our authorities in Brussels have just informed me that they have reconsidered their decision about your husband’s visa application.

I am now authorized to give him a Schengen visa on the condition that either you travel both together to Belgium or he travels to rejoin you in Belgium.

His visa will be issued right away at our Embassy upon presentation of returns ticket London-Brussels in the name of both of you.

Our visa section will be open tomorrow 21/12 between 9 and 12 am (address: Grosvenor Crescent 17); please note that our offices will be closed between 22 and 30/12.

Kind regards

xxxx
consul


So in the end I had to bypass the embassy and liase directly with the immigration officers in Brussels to get anywhere, even though it turns out that the embassy actually were at fault and didn't submit the correct information in the first place.


3. In the meantime I also submitted details of what happened to 'My Europe Advice' http://europa.eu/youreurope/advice/index_en.htm and they sent me a response within 4 working days which was excellent. They encouraged me to do the 'EU spouse' border crossing and included links to the directive and its implementation in Belgium to print out and take with me. I was very impressed with this service and would absolutely contact them again.

Here's the response in full - sorry it's a bit long.

----

Dear Sir/Madam,

Please find below the reply to your enquiry. Please note that the advice given by Your Europe Advice is an independent advice and cannot be considered to be the opinion of the European Commission, of any other EU institution or its staff nor will this advice be binding upon the European Commission, any other EU or national institution.

Thank you, Ms XXX, for contacting Your Europe Advice.

We are sorry to hear that your husband has been denied a visa to Belgium. We can confirm that the Belgian authorities have breached Article 5(2) of Directive 2004/38 which exempts family members of EU citizens from the need to provide supporting documents relating to the purpose of their journey, proof of financial resources and proof of accommodation. We therefore invite you to contact the Belgian consular authorities in London again and ask them to reconsider their advice. You may wish to provide them with a copy of our advice.

In the event that your husband is not issued a visa in time for your travel, your husband must nonetheless be permitted to enter Belgium without a visa or he must be allowed to apply for a visa at the border as explained further below. You should travel with a copy of this advice, your passports and your marriage certificate.

1. YOUR HUSBAND’S RIGHT TO OBTAIN A VISA TO TRAVEL TO BELGIUM

Under Article 5(2) of Directive 2004/38, at the spouse of an EU citizen, your husband has a right to obtain his entry visa free of charge and on the basis of an accelerated procedure since he understand he will be travelling with you to Belgium or joining you there. This Directive applies to your husband regardless of whether he will be traveling to Belgium from outside the EU.

The rules on the issue of Schengen visas are contained in the Visa Code (Regulation 810/2009) and the Visa Handbook (Decision C (2010) 1620 final).

Article 23(1) of the Visa Code clearly states that applications for a Schengen visa should be decided within 15 calendar days from the date of application.

Part III of the Visa Handbook (Decision C (2010) 1620 final), sets out how the Schengen visa rules should be applied to family members of EU citizens. In particular, Section 3.4 specifies that the consular authorities should process visas within 15 days in the absence of exceptional circumstances. Section 3.6 of the Visa Handbook specifies that your husband should only need to furnish the following documents in accordance with Directive 2004/38 on residence and travel rights of EU citizens:

-proof that you are an EU citizen from whom your husband can derive his rights (by providing a copy of your passport);

-proof that your husband is a family member (by providing your marriage certificate and a copy of his passport); and

-proof that your husband is accompanying you to Belgium or joining you there (for example, ticket reservation to show you will be traveling there together and a letter from you to confirm this).

The other documents required for ordinary Schengen visas do not apply to family members of EU citizens.

We can therefore confirm that you should not need to provide supporting documents relating to the purpose of travel, sufficient accommodation, subsistence and travel insurance.

This is made clear on the official standard application form for Schengen visas available on the website of the Belgian Office for Immigration:
https://dofi.ibz.be/sites/dvzoe/FR/Docu ... V%20FR.doc

The form clearly states:
“The fields marked with (*) shall not be filled in by family members of EU, EEA or CH citizens (spouse, child or dependent ascendant) while exercising their right to free movement. Family members of EU, EEA or CH citizens shall present documents to prove this relationship and fill in fields No 34 and 35”
This applies to questions 19, 20, 31, 32 and 33 on the form:
*19. Current occupation
*20. Employer and employer’s address and telephone number. For students, name and address of educational establishment
*31. Surname and first name of the host person(s) in the Member State(s). If not applicable, name of hotel(s) or temporary accommodation(s) in the Member State(s)
Address and e-mail address of host person(s)/hotel(s)/temporary accommodation(s)
*32. Name and address of host company/organisation
Telephone and telefax of company/organisation
Surname, first name, address, telephone, telefax, and e-mail address of contact person in company/organisation
* 33.Cost of travelling and living during the applicant's stay is covered

The form also clearly states that the application should be free.

This is all confirmed on the website of the Belgian Officer for Immigration:
https://dofi.ibz.be/sites/dvzoe/FR/Guid ... union.aspx

We therefore invite you to make contact with the Belgian consular authorities in London and ask them to reconsider their refusal. Please feel free to provide them a copy of this advice.

2. YOUR HUSBAND’S RIGHT TO ENTER BELGIUM WITHOUT A VISA OR APPLY FOR A VISA AT THE BORDER WHEN ENTERING BELGIUM

In the event that your husband is unable to secure a visa for himself before your departure, you should know that the Belgian authorities must allow your husband to enter Belgium after proving that he is the family member of an EU citizen and allow him to apply for a visa at the border if need be.

Directive 2004/38 (which regulates travel and residence rights within the EU) would also allow your husband to enter another country even if he does not have the correct an entry visa.
Article 5(4) of the Directive specifies that “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.”

In Belgium Directive 2004/38 is implemented by the Belgian Immigration Decree of which reads as follows in French:
Arrêté royal du 7 mai 2008 sur l'accès au territoire, le séjour, l'établissement et l'éloignement des étrangers, Article 47 § 1.
« Conformément à l'article 41, alinéa 2, de la loi, les autorités chargées du contrôle aux frontières autorisent l'accès au territoire au membre de la
famille du citoyen l'Union qui n'est pas citoyen de l'Union, et qui n'est pas titulaire des documents requis en vertu de l'article 2 de la loi, sur la
production d'un des documents suivants :
1° un passeport national ou une carte d'identité valable ou non ….
Si le membre de la famille est soumis à l’obligation de visa, il reçoit un visa, ou, si l’intéressé n’a pas de passeport en cours de validité, une autorisation tenant lieu de visa d’une durée de validité de 3 mois.»

In accordance with the EU Court of Justice’s ruling in MRAX Case C-459/99 [2002] ECR I-6591, national authorities are prohibited to send back a non-EU national who is able to prove his identity and that he is married to an EU citizen where there is no evidence to suggest he represents a risk to public policy, public security or public health.

The relevant part of the MRAX judgment reads as follows in French:
Arrêt de la Cour dans l’affaire C-459/99 Mouvement contre le racisme, l'antisémitisme et la xénophobie ASBL (MRAX), points 60 et 61:
« 60 Cependant, les articles 3, paragraphe 2, de la directive 68/360 et 3, paragraphe 2, de la directive 73/148 [désormais l’article 5, paragraphe 4, de la directive 2004/38] précisent que «[l]es États membres accordent à ces personnes toutes facilités pour obtenir les visas qui leur seraient nécessaires». Cela signifie que, sous peine de méconnaître le plein effet des dispositions précitées des directives 68/360 et 73/148 [remplacées depuis par la directive 2004/38], la délivrance du visa doit intervenir dans les plus brefs délais et, dans la mesure du possible, sur les lieux d'entrée sur le territoire national. »
« 61 Compte tenu de l'importance que le législateur communautaire a attachée à la protection de la vie familiale (voir point 53 du présent arrêt), le refoulement est, en tout état de cause, disproportionné et, partant, interdit si le ressortissant d'un pays tiers, conjoint d'un ressortissant d'un État membre, est en mesure de prouver son identité ainsi que le lien conjugal et s'il n'existe pas d'éléments de nature à établir qu'il représente un danger pour l'ordre public, la sécurité publique ou la santé publique au sens des articles 10 de la directive 68/360 et 8 de la directive 73/148 [remplacées depuis par la directive 2004/38]. »

Under Article 5(4) of Directive 2004/38, the national authorities must grant family members of EU citizens “every reasonable opportunity to obtain the necessary documents”. This would include the obligation on national authorities to give family members the right to apply for a Schengen visa at the border in accordance with Article 35 of the Schengen Visa Code (Regulation 810/2009) read in conjunction with Article 5 of the Schengen Borders Code (Regulation 562/2006).

Article 35 of the Schengen Visa Code (Regulation 810/2009) reads as follows in French:
Règlement (CE) No 810/2009 du Parlement européen et du Conseil du 13 juillet 2009 établissant un code communautaire des visas (code des visas), Article 35 :
« Visas demandés aux frontières extérieures
1. À titre exceptionnel, un visa peut être délivré aux points de passage frontaliers si les conditions ci-après sont remplies:
a) le demandeur remplit les conditions énoncées à l’article 5, paragraphe 1, points a), c), d) et e), du code frontières Schengen;
b) le demandeur n’a pas été en mesure de demander un visa à l’avance et, sur demande, il fait valoir par des pièces justificatives la réalité de motifs d’entrée imprévisibles et impérieux; et
c) le retour du demandeur vers son pays d’origine ou de résidence, ou son transit par des États autres que les États membres mettant en œuvre l’intégralité de l’acquis de Schengen est considéré comme garanti. »

Article 5 of the Schengen Borders Code (Regulation 562/2006)
Règlement (CE) No 562/2006 du Parlement européen et du Conseil du 15 mars 2006 établissant un code communautaire relatif au régime de franchissement des frontières par les personnes (code frontières Schengen), Article 5 :
« Conditions d'entrée pour les ressortissants de pays tiers
1. Pour un séjour n'excédant pas trois mois sur une période de six mois, les conditions d'entrée pour les ressortissants de pays tiers sont les suivantes:
a) être en possession d'un document ou de documents de voyage en cours de validité permettant le franchissement de la frontière;

c) justifier l'objet et les conditions du séjour envisagé, et disposer des moyens de subsistance suffisants, tant pour la durée du séjour envisagé que pour le retour dans le pays d'origine ou le transit vers un pays tiers dans lequel leur admission est garantie, ou être en mesure d'acquérir légalement ces moyens;
d) ne pas être signalé aux fins de non-admission dans le SIS;
e) ne pas être considéré comme constituant une menace pour l'ordre public, la sécurité intérieure, la santé publique ou les relations internationales de l'un des États membres et, en particulier, ne pas avoir fait l'objet d'un signalement aux fins de non-admission dans les bases de données nationales des États membres pour ces mêmes motifs. »

We hope this answers your query.

We remain at your disposal, should you require further information.

To submit another enquiry, please visit Your Europe Advice, but do not reply to this e-mail.

Your original enquiry was:
My husband, a non EU national was refused a Schengen Visa from the Belgian Embassy in London. The reasons given included a lack of proof of financial means, a lack of hotel booking etc - all reasons that are irrelevant under the EU directive 2004/38/EC.
My husband has had 4 previous Schengen visas - 2 of these were granted by the same Belgian embassy in London, however under the last visa they granted, we had to change our travel plans to visit Belgium due to a series of Eurostar Strikes.
My belief is that the visa was denied solely because the last visa was not used to visit Belgium (this was another reason given) and is an act from the embassy to prevent what they consider to be 'visa shopping'.
My husband visited Belgium with the first visa he was granted and therefore does not have a 'history' of applying for visas and failing to visit the Schengen member state he has applied with.
We had made plans to travel on Dec 22nd (the visa application was lodged 4 weeks ago today) which we believe should be honoured and the visa granted.

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Yours sincerely,

Your Europe Advice



I hope this is helpful to anyone else who might end up in a similar situation.

Happy holidays and thanks again to Ca Funke, EUsmileWEallsmile and Directive/2004/38/EC who have given so much of their time and excellent information on this board.

EUsmileWEallsmile
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Post by EUsmileWEallsmile » Thu Dec 27, 2012 9:22 pm

Well done for your persistence!

askmeplz82
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Post by askmeplz82 » Wed Dec 04, 2013 9:19 am

ChristinaJohn wrote:Good. Continue this.
how did you find it after 1 year? :D
UK Student Visa : 04/2004 - 09/2009
EEA Residence Card : 07/2010 - 7/2015
EU Settled Status: Confirmed on 16th July 2019
Naturalisation : Confirmed on 02nd Oct 2020
Passport Approval : 21st Feb 2021

citizen pakistani
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Re: Non-EU Spouse Visa Refused because didn't visit Belgium

Post by citizen pakistani » Sat Feb 22, 2014 12:17 pm

well done

suuuuutje
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Re: Non-EU Spouse Visa Refused because didn't visit Belgium

Post by suuuuutje » Mon Aug 18, 2014 7:35 pm

It would be nice if the topicstarter was still around to give some advice.

BIG Dobby
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Re: Non-EU Spouse Visa Refused because didn't visit Belgium

Post by BIG Dobby » Sun May 21, 2017 10:05 am

My wife went to Spanish VAC on the 19 May 2017 and they required that she submitted Air Ticket which was not a requirement under Directive 2004/38/EC for direct family members.

They refused to attend to her for over 1hr and she had to contact me. I requested to speak to the manager and they said they were not allowed to talk to applicants or anybody. I asked my wife to put the phone on speaker and I told them that their job is to collect the application (visa application centre VAC)and NOT to advise on the visa requirements.

They were afraid and asked my wife to sign an undertaking before processing her application. The truth remains that there are different requirements according to the EU country u are applying _ Meaning that EU is truly a failed Union.

I will be waiting for Spain and will surely deal with them as per Freedom of Movement Rights should her visa application fall for refusal

sam123456789
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Re: Non-EU Spouse Visa Refused because didn't visit Belgium

Post by sam123456789 » Sun Jul 23, 2017 12:07 pm

Dear friends
i am really appreciated if any one look up on my question and advise me, i am indian citizen currently studying in poland under student visa, my wife from philipines, she got italy permanent resident(indefinite) but she doesn't apply for italy passport,recently i went to philipines got married there then i back to poland continue my studies, my wife back to italy, currently I got Schengen type visa, there for any time i can travel to italy without apply italy visa, my wife plan to sponsor me to go italy , but me and she does not have any idea about this but i believe some of you genius in this, my question is which is better applying for spouse visa from Poland or travel to italy and apply for the spouse visa from italy and also please advise me the current NON EEA , EU spouse sponsoring visa requirements to go to italy

have a wonderful time

thank you

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