EC Petition: Ireland told to respect Directive 2004/38/EC when EU Citizens and their Non-EU spouses visit Ireland instead of requiring the Non-EU spouse to obtain a visa...
Petition 0007/2005, by Frank Semmig (German) on the complicated procedures for travel to Ireland by non-EU citizens with residence permits in Great Britain and Germany
http://www.europarl.europa.eu/meetdocs/ ... 7078en.pdf
EUROPEAN PARLIAMENT20042009Committee on Petitions28.02.2007NOTICE TO MEMBERS
Petition 0007/2005, by Frank Semmig (German) on the complicated procedures for travel to Ireland by non-EU citizens with residence permits in Great Britain and Germany
1.Summary of petitionThe petitioner, who is German, lives with his Russian wife in Great Britain, where both have domicile status. His wife also has a German residence permit. He complains at the difficulties his wife faces in travelling to Ireland when she wants to accompany him on long business trips, since each time she has to apply for an individual visa in London and collect it from there. The petitioner also feels that his freedom of movement is restricted, as for each of his wife's visa applications he has to declare his personal and financial circumstances and give details of his travel plans and these are carefully checked
2.AdmissibilityDeclared admissible on 12 May 2005. Information requested from the Commission under Rule 192(4).
3.Commission reply, received on 3 February 2006.BackgroundThe petitioner is a German citizen married to a Russian citizen. They live in Great Britain. The petitioner frequently travels to Ireland on business and complains that each time, he has to obtain a visa for his wife so that she can accompany him. This procedure takes a week. After six or seven individual visas, the Irish Embassy sends the next visa application to Dublin, which takes six to eight weeks to process. He says he cannot apply to the Irish Embassy for a multiple-entry visa for his wife, as this takes at least eight weeks.The petitioner is amazed that Switzerland, which is not a Member State, allows non-EU citizens who have a residence permit in an EU Member State to enter the country without a
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PE 369.930/REV2/5CM\657078EN.docENvisa, while Ireland does not.- He takes the view that Ireland is in breach of its obligations in terms of free movement, as it requires him to make public his personal and financial data, travel plans and hotel reservations when he applies for a visa for his wife.- He complains that the Irish Embassy in London checks by telephone whether he and his wife really are in the hotel they reserved and believes he does not have to give this information to the embassy.- He takes the view that forcing his wife to obtain an entry visa involving such lengthy procedures constitutes discrimination against her, because she is Russian.Legal asssessmentThe visa requirementUnder the applicable Community law on free movement and residence, the Member States must allow citizens of the Union to enter their territory simply by producing a valid residence permit or passport. Members of their family who are not EU citizens themselves may be subject to the entry visa requirement, depending on their nationality.Russia is included in Annex I to Regulation (EC) No 539/20011, which consists of a list of third countries whose nationals are subject to the visa requirement in order to cross the external borders of the Member States. Ireland, which has opted out of this regulation,subjects Russians to the visa requirement on the basis of its own national legislation.It is worth noting, however, that Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States2, which is due to replace existing Community legislation on free movement and residence as from 30 April 2006, stipulates that the possession of a valid residence permit exempts family members from the visa requirement. As from that date, therefore, the petitioner's wife will be able to go to Ireland simply by producing a valid passport and a residence permit issued in Great Britain.The holding of a residence permit issued by a Schengen country is already now considered to be equivalent to a visa. The family members of an EU citizen who hold such a residence permit may, on the basis of this document, move around within the Schengen area without a visa, for maximum stays of three months. This equivalence between residence permit and visa is only valid for countries which fully apply the Schengen acquis. Since Ireland does not participate in this part of the acquis, this equivalence does not apply there.Accordingly, as the law stands at present, the entry visa requirement for Ireland, in respect of the petitioner's Russian wife who holds a British residence permit, does not conflict with Community law. 1OJ L 81, 21.3.20012OJ L 158, 30.4.2004
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CM\657078EN.doc3/5PE 369.930/REVENIn 2000, Switzerland unilaterally decided to amend its legislation on foreigners in order to allow holders of residence permits issued by Member States to enter Switzerland without a visa for short stays.1Conditions and time frames for issuing visasIn order to issue a visa to the wife of the petitioner, who wishes to accompany her husband on a trip to Ireland in the context of their right to free movement, the Irish authorities may only ask her for her valid passport or identity card and proof of her relationship to him. The directives applicable to the free movement of persons, and in particular Directive 73/148/EEC2applicable to those providing and those receiving services, stipulate that the Member States must 'afford every facility' to family members of EU citizens for obtaining any necessary visas. The Member States are not allowed to subject people to other requirements or to demand other documents or information from beneficiaries of Community law who apply for a visa to enter their territory. It is not in keeping with Community law to demand that EU citizens give detailed information on personal data, or on their travel plans or hotel reservations.The period of one week for the granting of an entry visa does not appear to be disproportionate. However, the time frame of six to eight weeks for a visa application after six or seven individual visas is not consistent with the obligation on the Member States to afford 'every facility' to family members for obtaining any necessary visas.This obligation to afford 'every facility' to family members of EU citizens also, in the Commission's view, relates to the nature of the visa issued. When it is clear that the person in question has to travel frequently in a given Member State in the context of exercising his right to free movement, he should be issued with a multiple-entry visa with a long period of validity. The time frame for issuing such a visa should also be sufficiently rapid to complywith the obligation to afford 'every facility'.Checks by the Irish Embassy in LondonAs regards the checks by the Irish Embassy in London that the couple actually are staying at the indicated hotel in Ireland, Community law merely provides that the Member States may require EU citizens to report their presence in the country. ConclusionThe Commission intends to contact the Irish authorities to discuss the above-mentioned 1On 26 October 2004, the European Union, the European Community and Switzerland signed an agreement on Switzerland's association with the implementation, application and development of the Schengen acquis. When the Council reaches a decision on the full application of the Schengen rules to Switzerland, the equivalence of residence permits and visas will come into play, and holders of Swiss residence permits will be able to move around the Schengen area for maximum stays of three months, on the basis of their residence permit. Equally, holders of residence permits issued by Schengen countries will be able to go to Switzerland on the basis of their residence permit.2OJ L 172, 28.6.1973.
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PE 369.930/REV4/5CM\657078EN.docENpractices, which may be in breach of Community law.4.Further Commission reply, received on 28 February 2007As announced in the reply to this petition, the Commission services wrote to the Irish authorities on 23 December 2005. They noted that in order to issue a visa to the spouse of the petitioner, who is a Russian national, the Irish authorities may only require from her a passport and the proof of her family link to the petitioner. The Commission's services also noted that the delay of six to eight weeks to obtain a visa in the case of a visa request intervening after six or seven individual visa requests have been granted is not in conformity with the obligation on Member States to grant them every facility to obtain the necessary visas. As regards verifications by the Irish embassy in London on whether the petitioner and his spouse stayed in the hotel previously indicated, they noted that Community law only provides that Member States may impose on Union citizens to report their presence in their territory.The Irish authorities replied by letter of 13 April 2006. They clarified that for the past twelve months third country national spouses of Union citizens travelling to Ireland had to presentthe Union citizen's passport, the spouse's passport, the original marriage certificate and three photographs. In the case where the Union citizen does not accompany the third country national there are additional requirements to respect. By letter of 13 June 2006 the Commission services wrote to the Irish authorities again and reminded them that under Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ L 229, 29.6.2004) which has become applicable since 30 April 2006 and replaced Directive73/148/EEC, citizens of the Union may travel to another Member State not only with a valid passport but also with a valid identity card, as was the case also under previously applicable Community instruments on free movement and residence. The new Directive also provides in Article 5.2, as a novelty, that the possession of the valid residence card referred to in Article 10 of the Directive shall exempt family members who are not nationals of a Member State from the visa obligation. The Irish Immigration Act 2004 (visas) Order 2006 provides in Article 3 (b) ii) and iii), that non-nationals who are holders of a valid permanent residence card issued under Regulation 16 or of a valid residence card issued under Regulation 7 of the European Communities (Free movement) Regulations of 2006 are not required to be in possession of a valid Irish visa when landing in Ireland. However, the above transposition provision does not conform to Directive 2004/38/EC since, in accordance with that text, a residence card issued in any Member State exempts family members from the visa obligation. The Irish transposition legislation just exempts family members who have a residence card issued in Ireland from the visa obligation.Therefore, a visa may not be required from a family member of a Union citizen who is not a national of a Member State and who has a residence card issued by any of the Member States of the Union. This rule should also apply, in Commission services' view, in cases where the family member holding a residence card travels alone to join the Union citizen in Ireland.
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CM\657078EN.doc5/5PE 369.930/REVENThe Commission's services underlined that the above observation was without prejudice to any other comments they might have in future with regard to the compatibility of Irish legislation, currently under examination, with Directive 2004/38/EC and recalled that they had received recurring complaints on visa requirements for family members on which separate letters had been sent to the Irish authorities and which may indicate that there is a consistent administrative practice which would seem to be not in conformity with Community law.With regard to the question of the delay in processing the visas the Commission's services noted that Article 5.2 of Directive 2004/38/EC, like the previous Community law instruments in this field, provides that Member States shall grant family members who are not nationals of Member States and who are not in possession of a valid residence card every facility to obtain the necessary visas which shall be free of charge. The novelty brought about by Directive 2004/38/EC is that the visa shall be issued on the basis of an accelerated procedure. In line with this provision, the European Communities (Free movement) Regulations of 20061which have transposed Directive 2004/38/EC into Irish law, provide in Article 4(3)(b) that the Minister shall, on the basis of an accelerated process, consider an application for an Irish visa from a qualifying family member referred to in subparagraph a) as soon as possible and free of charge. Therefore, a delay of six to eight weeks to issue a visa is incompatible with the above mentioned provisions, even in a case where complicating circumstances would exist.The Irish authorities have replied by letter of 25 September 2006. They contest the applicability of Article 5.2 of Directive 2004/38/EC to Ireland. The Commission's services are considering the possibility of initiating infringement proceedings against Ireland on this position in the context of the screening of the Irish transposition measures. With regard to the delays in the issuance of visas, they stated that although some cases may be particularly time consuming, currently the great majority of applicants at the London embassy receive a reply within 5 working days and visa applications referred to Dublin are processed within one and a half to two weeks on the basis of an accelerated procedure. A revision of guidance to missions in relation to visa processing has been undertaken and will be forwarded to the Commission's services.1Statutory Instrument S.I. N). 226 of 2006
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