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Travel to Schengen, without visa, for EEA-family members

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

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ca.funke
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Travel to Schengen, without visa, for EEA-family members

Post by ca.funke » Wed Feb 08, 2012 1:09 pm

Since this is a repetitive question with relevant answers scattered throughout the forum, I hereby try to wrap this up in 1 post, providing necessary links.

This will cover 2 parts, however please first note the following warning:
warning wrote:The problem with travelling in the way described here is that many embassy personnel, airline staff and/or border-guards never heard of this provision. So you might hear that what´s written here is incorrect (although it is correct) and you might have a hard time travelling this way in general. Be prepared to argue. Possibly a lot. You are legally entitled to travel, however some rare cases of being denied in spite of everything are known!

This is not legal advice - I´m not a qualified lawyer - I´m just presenting the result of my own research, which may be wrong partly or in its entirety!

EEA family member Residence Card holder (Part 1): This only applies to you if
  • you are a family-member of an EEA-citizen AND
  • legally living inside the EU but outside Schengen (=UK, Ireland, Bulgaria, Romania and Cyprus) AND
  • You have been given a "Residence card of a family member of a Union citizen"
    • If any of the above is not the case, check Part 2!
In this case you are legally entitled to travel to all of the EEA (not Switzerland :!: ), as long as your partner travels with you, or you "join the partner".
Please continue reading, but skip the next section!



EEA family member without Residence Card (Part 2): This only applies to you if
  • you are a family-member of an EEA-citizen AND
  • Not (yet) in possession of the residence-card as per Part 1 OR
  • legally living outside the EU altogether
In this case you are still legally entitled to travel to all of the EEA (not Switzerland :!: ), as long as your partner travels with you, or you "join the partner".

>>Article 5, Section 4 of 2004/38/EC<< reads as follows:
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 practice you take
  • both passports AND
  • some proof of residence AND
  • your marriage-certificate, officially translated and if necessary with a Hague-apostil
    • basically you take all papers you would need to apply for the permit as per "Part 1"
and you´re legally good to go without visa.
[u][b]Beware[/b][/u] wrote: :!: This section is even less known than the one before, so although you are entitled to travel, it may be wise to get a visa just to make sure :!:

Additional rare exception:
    • If you are
      • a family member of an EEA-citizen AND
      • living outside the EEA altogether AND
      • you intend to travel to the country of which the EEA-member is a national,
      • example1: Thai wife with Swedish husband, resident in Laos, travelling to Sweden
      • example2: non-EEA wife with EEA husband, resident in non-EEA country, travelling to home country of EEA-national
        • then you will ironically still need a visa just for that country :!: , in spite of being allowed to visit all other EEA-countries visa-free :!:


Related links / more reading / more info:
  • You should take the printed law with you >>in English<<, >>your native language<< and the country of destination´s language. Highlight the relevant passage to help you in your possibly upcoming argument... See full >>practical guide here<<.
  • Closely related, also read >>this blog<<, which contains many more details and some links to success stories.
  • I made >>some suggestions<< to the authorities how this could be improved/simplified/clarified, but obviously this is being ignored.
What to do in case you are denied:
  • You should know your stuff and have the law handy.
  • Ask for superiors of whoever wants to deny you. This could be airport/airline staff and/or border guards.
  • If (whoever) finally denies you, make sure to get in writing that the EEA and the non-EEA citizens were present together, and intended to travel together :!:
    • Ideally, get something like >>this<< filled out. (Self written by me, feel free to copy/change/amend/publish..., no guarantees whatsoever)
    • Otherwise, once you sue (whoever denied you) and they finally realise that they will lose their case, they will simply claim that the non-EEA person wanted to travel alone, such as in >>this<< case.
    • In case written confirmation is refused: Ask (politely but firmly) to be interviewed by police.
      • This will leave a proving paper trail.
      • Do not leave the check-in desk without boarding pass (or written refusal), never back off passport control without written refusal. Insist that the only way to get rid of you is either
        • letting you pass OR
        • giving a refusal in writing OR
        • arrest, so you have something in writing
  • It should then be possible to sue (whoever stopped you) for compensation
  • Last but not least: If you want to be 100% sure to travel, take out a visa.
Again - Warning:
warning wrote:The problem with travelling in the way described here is that many embassy personnel, airline staff and/or border-guards never heard of this provision. So you might hear that what´s written here is incorrect (although it is correct) and you might have a hard time travelling this way in general. Be prepared to argue. Possibly a lot. You are legally entitled to travel, however some rare cases of being denied in spite of everything are known!

This is not legal advice - I´m not a qualified lawyer - I´m just presenting the result of my own research, which may be wrong partly or in its entirety!
Last edited by ca.funke on Sat Jul 07, 2012 6:13 am, edited 26 times in total.

tonypetty
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Re: IRL or UK to Schengen, without visa, for EEA-family memb

Post by tonypetty » Thu Feb 16, 2012 1:16 am

Many thanks for your effort:

I want to clear one situation: I have UK ILR and my two kids have full UK passports and my wife is Tier1 holder my elder daughter has ILR. We are a family consisting of five people altogether. Do we classified as family member ?? do we need visa to go to France and Italy?

Kind Regards

ca.funke
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Re: IRL or UK to Schengen, without visa, for EEA-family memb

Post by ca.funke » Thu Feb 16, 2012 9:35 am

Hi tonypetty,

so you´re in the following scenario?
  • 2 parents, one on ILR and one on Tier 2
  • 2 children who are British nationals (passport is irrelevant, see >>here<<)
  • 1 child on ILR
I think the 3 non-British of yee will need visas :(

Reason is in
>>2004/38/EC<<, Articles 2 and 3 wrote:Article 2
Definitions
For the purposes of this Directive:
(...)
2. ‘family member’ means:
(...)
(d) the dependent direct relatives in the ascending line and
those of the spouse (...);
(...)
(=not you, because you´re not dependent on your children, I guess?)

Article 3
Beneficiaries
(...)
2. Without prejudice to any right to free movement and
residence the persons concerned may have in their own right,
the host Member State shall, in accordance with its national
legislation, facilitate entry and residence for the following
persons:

(a) any other family members, irrespective of their nationality,
not falling under the definition in point 2 of Article 2 who,
in the country from which they have come, are dependants
or members of the household of the Union citizen having
the primary right of residence(...)

(...)

The host Member State shall undertake an extensive examina-
tion of the personal circumstances and shall justify any denial
of entry or residence to these people.
So if at all you should have "entry facilitated", while I guess a visit-visa for you would not be refused anyway.

But then again: My understanding of the law as far as "who is a benificiary" outside of spouses isn´t great. Maybe some else can say something different/better about this?

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Re: IRL or UK to Schengen, without visa, for EEA-family memb

Post by cobra » Thu Feb 16, 2012 2:09 pm

Hi ca.funke,

Here is my scenario, I don`t expect you to give me full advice, but with your knowledge you can help.

1. I am a holder of UK ILR (Obtain through Asylum Legacy)
2. Wife & 2 kids British Citizen

Do I need Schengen visa to travel to Europe with my family?

ca.funke
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Re: IRL or UK to Schengen, without visa, for EEA-family memb

Post by ca.funke » Thu Feb 16, 2012 2:48 pm

Hi cobra,

your case is exactly what is described in part 2)

(EEA-family member, but not in possession of EEA-permit)

Rgds,
Christian

cobra
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Re: IRL or UK to Schengen, without visa, for EEA-family memb

Post by cobra » Thu Feb 16, 2012 4:17 pm

ca.funke wrote:Hi cobra,

your case is exactly what is described in part 2)

(EEA-family member, but not in possession of EEA-permit)

Rgds,
Christian
Thank you ca.funke,

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Post by docteurbenway » Fri Feb 17, 2012 7:06 am

Hi Christian,

i have another clarification question/remark.

If you are an EEA-Family member, living in Schengen area and hold a Residence Card of a Family member of a union citizen issued by a Schengen State:

a.Can you travel to Switzerland with your EEA Family member (spouse)?

b.Ireland now officially allows entry to people that fulfill the criteria listed above, see: http://www.immigrationboards.com/viewto ... sc&start=0

Is the reverse not true if you have a card issued by Ireland?

Thanks

ca.funke
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Post by ca.funke » Fri Feb 17, 2012 11:45 am

You ask exactly the questions, which are very hard to explain by themselves. It´s easier to understand if you see the whole picture:

There are 4 different laws interacting here, and their interaction has some totally illogical outcomes:
  1. 2004/38/EC is valid throughout the >>EEA<<.
    • Part1) and Part2) of the first post in this thread are valid throughout the EEA (only), of which Switzerland is not a member
  2. Every country has their own implementation (="transposition") of 2004/38/EC
    • The UK includes Switzerland into their 2004/38/EC implementation, thus combining 2004/38/EC and the "Free Movement of Persons Switzerland – EU/EFTA" agreement
  3. Schengen rules are valid throughout Schengen
    • Of which Switzerland is a member, but most notably Ireland and the UK, but also Bulgaria, Romania and Cyprus are not a member.
  4. Switzerland has a seperate agreement, called "Free Movement of Persons Switzerland – EU/EFTA"
    • It´s close to 2004/38/EC, but does not allow for visa-free visits
Consequences:
  • My Part1) and Part2) descriptions in the first post of this thread rely uniquely on a), hence these points are valid throughout the EEA (only), most notably NOT in Switzerland.
  • Because of b), a Swiss person (and his/her non-EEA spouse) can travel to the UK according to 2004/38/EC, but not the other way around.
Direct answers to your questions:
docteurbenway wrote:If you are an EEA-Family member, living in Schengen area and hold a Residence Card of a Family member of a union citizen issued by a Schengen State:

a.Can you travel to Switzerland with your EEA Family member (spouse)?
You may travel to Switzerland with any Schengen-residence-permit because of c) (Schengen), but this has nothing to do with a) (2004/38/EC). The family member does not need to accompany you.
docteurbenway wrote:b.Ireland now officially allows entry to people that fulfill the criteria listed above, see: http://www.immigrationboards.com/viewto ... sc&start=0

Is the reverse not true if you have a card issued by Ireland?
You mean "enter Switzerland with the Irish residence card"? That´s not allowed, just as with the UK :!:

Reason is, that EEA-citizens that want to go to Switzerland have to rely on either c) or d), both of which do not allow visa-free entry for family members.

I´m not sure if a Swiss residence-card is valid for my Part1) description for Ireland. This depends on the Irish implementation.
Last edited by ca.funke on Wed Mar 28, 2012 6:28 am, edited 1 time in total.

EUsmileWEallsmile
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Post by EUsmileWEallsmile » Fri Feb 17, 2012 5:48 pm

ca.funke wrote: I´m not sure if a Swiss residence-card is valid for my Part1) description for Ireland. This depends on the Irish implementation.
The Irish visa exception talks about a residence card issued under the directive, so I suspect that a Swiss residence card would not qualify.

ca.funke
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Post by ca.funke » Wed Feb 22, 2012 12:37 pm

EUsmileWEallsmile wrote:
ca.funke wrote: I´m not sure if a Swiss residence-card is valid for my Part1) description for Ireland. This depends on the Irish implementation.
The Irish visa exception talks about a residence card issued under the directive, so I suspect that a Swiss residence card would not qualify.
Checking up on it, I´d say a Swiss residence card does not grant entry into Ireland, since Ireland specifically refers to cards issued through Article 10 of 2004/38/EC, which the Swiss card is not.
S.I. No. 146/2011 — Immigration Act 2004 (Visas) Order 2011. wrote:(...)
3. It is hereby declared that the following classes of non-nationals are specified as classes the members of which are not required to be in possession of a valid Irish visa when landing in the State:
(...)
(c) non-nationals who are family members of a Union citizen and holders of a document called “Residence card of a family member of a Union citizen”, as referred to in Article 10 of the Directive of 2004.
(...)
Ireland seems to still disregard >>Article 5, Section 4 of 2004/38/EC<<:
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.
However, a Swiss residence card according to the >>Free Movement of Persons Switzerland – EU/EFTA<< is valid in the UK, since the UK´s implementation of 2004/38/EC combines both laws into one, yielding Switzerland equivalent to an EEA country for immigration purposes in the UK.

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Post by tekkers09 » Sun Mar 25, 2012 11:41 am

I completely agree with you and the relevant extracts, I know those to be the rules as well. I think my frustration is that I had to suffer because of people not being competent/trained enough to know what the provision is.I will file a claim with easy jet and see what they say, as a starter anyways. Thanks for the clarity though, much appreciated.

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Post by EUsmileWEallsmile » Sun Mar 25, 2012 4:33 pm

tekkers09 wrote:I completely agree with you and the relevant extracts, I know those to be the rules as well. I think my frustration is that I had to suffer because of people not being competent/trained enough to know what the provision is.I will file a claim with easy jet and see what they say, as a starter anyways. Thanks for the clarity though, much appreciated.
Are you a family member of an EU citizen and were you traveling together? If not, your post is pretty irrelevant here.

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Post by johannf » Tue Mar 27, 2012 7:26 am

Hi all. Just some feedback on our trip to France from Belfast last week.

We checked in at Belfast International, at the easyJet counter. The lady was actually very good and recognised my EEA Residence card, and even wrote on my boarding pass "No V/C needed because of EEA RC". So we had no problems boarding the easyJet plane.

After landing at Charles De Gaulle in Paris, we had to go through immigration there. There were 2 counters. One counter for "All passports" and another for "EEA" passports. We stood in front of the EEA counter but was called over to the "All Passports" counter, so I gave our passports in and held thumbs! And once again I was suprised that the immigration officer flipped through to my EEA RCard, checked my wife and kids Irish passports, and gave our passports back, with a smile! No problem! So we travel to Paris with no issues at all, probably because the people that checked our passports were informed of what an EEA Rcard is and what it means.

On our way back yesterday, we checked in again at the easyJet counter. The guy behind the check-in counter was very friendly. He did have abit of a chat with his colleague in french, about my EEA residence card, but after a few minutes all was ok. He said he had to be sure all is ok with it because the UK immigration is extremely strict and they can be very difficult. But we had no problem checking in. So on we went to the immigration "check-out". This time we went to the "EEA Passports" counter.

The french immigration officer took my passport and flicked through it a few times and then pointed at an older Schengen visa I got about 3 years ago when I travel to France before I had an EEA residence card, and then said to me "visa expired"... So I said to him "No, let me show you". So I showed him the EEA Residence card. He had a blank look and I could see he wasnt sure about what I was saying. So I said to him that I have contacted both French embassys in the UK and both told me that I dont need a schengen visa, as long as I travel with my EU spouse. So after he checked something on his computer screen, he put my passport down, looked at my wife's and kids' Irish passorts...then picked mine up again, had a long look at my RC card...and then with a frown on his face he gave us our passports back and let us through.... I must say at one stage I was starting to think that I would have to take out the print-outs of Directive 2004. the FAQ from the French embassy website etc, but luckily it didnt go that way, phew!!!!! i was really glad.

At Belfast International we also didnt have any issues going through immigration, so all went well for us.

Directive/2004/38/EC
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Post by Directive/2004/38/EC » Tue Mar 27, 2012 1:01 pm

johannf wrote:Hi all. Just some feedback on our trip to France from Belfast last week.

We checked in at Belfast International, at the easyJet counter. The lady was actually very good and recognised my EEA Residence card, and even wrote on my boarding pass "No V/C needed because of EEA RC". So we had no problems boarding the easyJet plane.

After landing at Charles De Gaulle in Paris, we had to go through immigration there. There were 2 counters. One counter for "All passports" and another for "EEA" passports. We stood in front of the EEA counter but was called over to the "All Passports" counter, so I gave our passports in and held thumbs! And once again I was suprised that the immigration officer flipped through to my EEA RCard, checked my wife and kids Irish passports, and gave our passports back, with a smile! No problem! So we travel to Paris with no issues at all, probably because the people that checked our passports were informed of what an EEA Rcard is and what it means.

On our way back yesterday, we checked in again at the easyJet counter. The guy behind the check-in counter was very friendly. He did have abit of a chat with his colleague in french, about my EEA residence card, but after a few minutes all was ok. He said he had to be sure all is ok with it because the UK immigration is extremely strict and they can be very difficult. But we had no problem checking in. So on we went to the immigration "check-out". This time we went to the "EEA Passports" counter.

The french immigration officer took my passport and flicked through it a few times and then pointed at an older Schengen visa I got about 3 years ago when I travel to France before I had an EEA residence card, and then said to me "visa expired"... So I said to him "No, let me show you". So I showed him the EEA Residence card. He had a blank look and I could see he wasnt sure about what I was saying. So I said to him that I have contacted both French embassys in the UK and both told me that I dont need a schengen visa, as long as I travel with my EU spouse. So after he checked something on his computer screen, he put my passport down, looked at my wife's and kids' Irish passorts...then picked mine up again, had a long look at my RC card...and then with a frown on his face he gave us our passports back and let us through.... I must say at one stage I was starting to think that I would have to take out the print-outs of Directive 2004. the FAQ from the French embassy website etc, but luckily it didnt go that way, phew!!!!! i was really glad.

At Belfast International we also didnt have any issues going through immigration, so all went well for us.
Who, if anyone, stamped your passport? Did the French stamp it coming or going from France? The British?

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Post by johannf » Tue Mar 27, 2012 1:10 pm

Hi there. Nope, noboby stamped my passport, I just double-checked. I kept a close eye everytime to make sure they dont.

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Post by EUsmileWEallsmile » Tue Mar 27, 2012 7:52 pm

johannf wrote:Hi there. Nope, noboby stamped my passport, I just double-checked. I kept a close eye everytime to make sure they dont.
I asked the same question in your previous post. I have to say, well done. You were prepared, knew what to do and had a trouble free trip. Hope the holiday was just as good.

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Post by johannf » Tue Mar 27, 2012 7:59 pm

Sorry Eusmile, didnt see your Q there.

Well thanks to this forum and you guys for all the advice posted here, that I was prepared! So thank you guys! :wink:

yes the holiday was great with many good memories!

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Portugal - anyone had any experience with EEA Residence card

Post by rlobo » Mon Apr 02, 2012 2:53 pm

Folks,

My partner (Dutch) and I (Indian) live in London with EEA Family Residence card. Thanks to all you lovely folks who have taken the time to answer my queries, we have now bucked up the courage to 'test drive' my residence card! :D

Our first trip on the strengths of the Residence card will be to Holland for Easter this weekend to visit my parter's family and friends. We have already gotten in touch with the dutch consulate who ahve sent us a confirmation email that I dont need a visa.
We are flying from the London Southend airport via Easyjet - fingers crossed that they will live up to their name and make our jet flight easy! I will post the outcome of that trip sometime next week.

In the meantime, I have another query: We have been invited to a friend's wedding in Portugal in May. We fly to Faro first, get to Lisbon and then fly to Funchal/Madeira for the wedding a couple of days later. Does anyone in this forum have any first - (or second) hand experience with the Portuguese authorities wrt to free travel with Residence Card? Does anyone know the contact details of the consulate here from whom we can perhaps get a confirmation email before setting off?

Thank you for your time!
Resh

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Post by EUsmileWEallsmile » Mon Apr 02, 2012 7:09 pm

Good luck with your trip to the Netherlands hope it goes well.

Portugal applies the same rules so your article 10 residence card will be fine. However, embassy information from Portugal is rather thin on the ground.

Would you mind doing me a favour? Could you post your experience of your trips in the following thread? We often get people saying, can I do this, or can I do that? It's nice once in a while for someone to say, yes I did this or yes I did that.

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Post by EUsmileWEallsmile » Mon Apr 02, 2012 7:10 pm

The thread I was referring to is here.

http://www.immigrationboards.com/viewtopic.php?t=98029

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