New Guidelines for EU Free Movement of EU citizen & Fam

Press Release July 2nd 2009 >here<

Short Introduction >here<

download Actual New Guidelines >here<

2.2. Entry and residence of third country family members
2.2.1. Entry visas
:
Residence cards issued under Article 10 of the Directive to a family member of an EU citizen residing in the host Member State, including those issued by other Member States, exempt their holders from the visa requirement when they travel together with the EU citizen or join him/her in the host Member State.

Residence cards not issued under the Directive can exempt the holder from the visa requirement under Schengen rules .

Can someone clarify, does this new line added in the latest guidelines
Residence cards not issued under the Directive can exempt the holder from the visa requirement under Schengen rules
mean STAMP-4, as held by Irish and some EU family members.

STAMP-4 is issued to Irish family members or EU family members waiting
the 6 months for 4EUFam.
It is a Residence card which is not issued under the Directive 2004/38.
It is issued under domestic Irish regulations
Whereas 4EUFam is issued under Article 10 of the Directive 2004/38

Meaning countries like Italy, Sweden etc, would have to accept
Irish issued STAMP-4 and 4EUFam Residence cards as a substitute for a Schengen visa
This would remove the discrimination currently suffered by STAMP-4 holders. (Irish and EU family members)

I suppose what is meant here is that Schengen issued residence cards/permits are valid as under Schengen rules .

The fact that further up in the doc that it says the following makes me doubt any change for Spouses of EU citizens who are resident in the EU Citizens country of Origin and who are not holding an EU Family Permit (Stamp4EUFAM):

The Directive applies only to EU citizens who move to or reside in a Member State other than that of which they are a national, and to their family members who accompany or join them.

T., a third country national, resides in the host Member State for some time. She wants to be joined there by her third country spouse. As no EU citizen is involved, the couple cannot benefit from the rights under the Directive and it remains fully up to the Member State concerned to lay down rules on the right of third country spouses to join other third country nationals, taking due account of other instruments of Community law, if applicable.

EU citizens residing in the Member State of their nationality do not normally benefit from the rights granted by Community law on free movement of persons and their third country family members remain to be covered by national immigration rules. However, EU citizens who return to their home Member State after having resided in another Member State and in certain circumstances also those EU citizens who have exercised their rights to free movement in another Member State without residing there (for example by providing services in another Member State without residing there) benefit as well from the rules on free movement of persons.

P. resides in the Member State of his nationality. He likes it there and has not resided in another Member State before. When he wants to bring his third country spouse, the couple cannot benefit from the rights under the Directive and it remains fully up to the Member State concerned to lay down rules on the right of third country spouses to join its own nationals.

I understand that the non-EU spouse of Citizen P would not be allowed to apply for an EU Family Permit (Stamp4EUFAM) but don't understand why if the EU citizen wishes to travel elsewhere in the EU with their spouse, why they wouldn't be covered by this Directive. To me it seems again that there is a bias towards EU citizens and their spouses who are resident in another EU State. These non-EU Spouses can travel without applying for a Visa whereas non-EU spouses of EU citizens resident in the EU spouses home state would have to apply for a visa.

scrudu wrote:... but don't understand why if the EU citizen wishes to travel elsewhere in the EU with their spouse, why they wouldn't be covered by this Directive.

Why? They are. See Article 6, "Right of residence for up to three months". Or do I misunderstand you?

scrudu wrote: I understand that the non-EU spouse of Citizen P would not be allowed to apply for an EU Family Permit (Stamp4EUFAM) but don't understand why if the EU citizen wishes to travel elsewhere in the EU with their spouse, why they wouldn't be covered by this Directive. To me it seems again that there is a bias towards EU citizens and their spouses who are resident in another EU State. These non-EU Spouses can travel without applying for a Visa whereas non-EU spouses of EU citizens resident in the EU spouses home state would have to apply for a visa.

What they are trying to say is that if someone has never exercised a treaty rights in another country, and wishes to bring in their third country national into their home country, they will not be able to do so under EU rules. They will only be avail of the National rules.

If they want to travel to another EU country however, Article 6 will be effected.
This is not a new thing i am afraid

hi guys ,
sorry it is still not clear to me , will this effect people like me on eufam-4 ,would i be still able to travel to schengen countries like germany,latvia and sweden without visa .thanks

robby1 wrote:hi guys ,
sorry it is still not clear to me , will this effect people like me on eufam-4 ,would i be still able to travel to schengen countries like germany,latvia and sweden without visa .thanks

There is no change for 4EUFam holders, it should still allow visa free travel
as it is issued under directive 2004/38.
But reading ca.funke 4EUFam and EU wide travel - the complete guide will show you the problems.

STAMP-4 is issued to Irish family members or EU family members waiting
the 6 months for 4EUFam.
It is a Residence card which is not issued under the Directive 2004/38.
It is issued under domestic Irish regulations

The question is to clarify the following new lines, added >here<
Residence cards not issued under the Directive can exempt the holder from the visa requirement under Schengen rules .

I thought it refers to STAMP-4
And this would mean countries like Italy, Sweden etc, would have to accept
Irish issued STAMP-4 and 4EUFam cards as a substitute for a Schengen visa
This would remove the discrimination currently suffered by STAMP-4 holders.

Can someone confirm, or otherwise help me understand the real intent
of these new lines.

I would agree with acme4242 but I don't think the stamp4 issued here on temp basis will be accepted as visa exempt status. There are many categories in stamp4 i.e. LTR, IBC, Programme refugee, spouse of Irish citizen etc. Other Immigration agencies won't know which category applies to a particular Stamp4 holder, the 4EUFam stamp is self-explanatory.

I'm referring to the fact that non-EU spouses of Irish citizens who are granted a Stamp4 visa under Irish law will still need to apply for a Schengen Visa (and provide lots of doc's) to enter another EU country.

On the other hand, non-EU spouses of other EU citizens who are exercising their treaty rights and have been granted a Stamp4EUFAM will not require a Schengen Visa to enter another EU country.

Yes, both types of non-EU spouses retain the right to entry into another EU country when with their EU spouse, but non-EU spouses who have been granted residency in an EU State under National Law (e.g. Stamp4 in Ireland) experience more hardship and difficulty when travelling to other EU countries with their EU spouse.

If this Directive is to truly allow for free movement of EU citizens and their families throughout the EU, then there should be no differentiation between the two types of non-EU spouses. Stamp4 Spouse of Irish citizen (stated on GNIB Card and Passport Re-entry Visa) clearly shows the non-EU spouse to be the spouse of an EU citizen. Why should this type of non-EU spouse have to make an appointment with an Embassy, take time off work, supply lots of doc's to make the same journey as the non-EU spouse of an EU citizen exercising treaty rights!

scrudu wrote:I'm referring to the fact that non-EU spouses of Irish citizens who are granted a Stamp4 visa under Irish law will still need to apply for a Schengen Visa (and provide lots of doc's) to enter another EU country.

On the other hand, non-EU spouses of other EU citizens who are exercising their treaty rights and have been granted a Stamp4EUFAM will not require a Schengen Visa to enter another EU country.

Yes, both types of non-EU spouses retain the right to entry into another EU country when with their EU spouse, but non-EU spouses who have been granted residency in an EU State under National Law (e.g. Stamp4 in Ireland) experience more hardship and difficulty when travelling to other EU countries with their EU spouse.

If this Directive is to truly allow for free movement of EU citizens and their families throughout the EU, then there should be no differentiation between the two types of non-EU spouses. Stamp4 Spouse of Irish citizen (stated on GNIB Card and Passport Re-entry Visa) clearly shows the non-EU spouse to be the spouse of an EU citizen. Why should this type of non-EU spouse have to make an appointment with an Embassy, take time off work, supply lots of doc's to make the same journey as the non-EU spouse of an EU citizen exercising treaty rights!

Scrudu you have already pointed out the differences, which is persons who have left their home country to exercise treaty rights elsewhere and those who haven't.

The EU trys to encourage EU nationals to exercise treaty rights in another country, and if their non-EEA family where to face difficulty moving around, this will be an hindrance to them doing so.

Freedom of movement exist for non-EEA family who have exercised treaty rights with their EEA family member in another member state, whom the EU has jurisdiction over. If such family member were to undergo the same requirement to obtain a visa there EEA family member might have been discouraged from leaving their memberstate of citizenship in the first place, while if an Irish who hasn't left Ireland would not be discouraged from doing anything.

For an Irish national non-eea family member, provisions are made for right of Entry, and if that Irish national starts exercising treaty rights their family member will benefit from freedom of movement under EU law, as they are now fully under EU Jurisdiction.

The EU has already made it easy for them by specifically saying should family members should be issued with the visa in an accelerated process without any cost. If they go further than that people will not bother to exercise treaty rights

Obie: I disagree with quite a few of your points

obie wrote:The EU trys to encourage EU nationals to exercise treaty rights in another country

I do not believe this is true. The EU does on the other hand try to eliminate any problems that a citizen of an EU member state could encounter when either travelling through (temporarily as a tourist) or moving to (for work/retirement) another EU member state.

obie wrote:Freedom of movement exist for non-EEA family who have exercised treaty rights with their EEA family member in another member state

Let's be clear here. The only person to have "exercised their Treaty rights" is the EU citizen. Their non-EU spouse is simply accompanying them.

obie wrote: If they go further than that people will not bother to exercise treaty rights

If I understand what you are saying, you think that the EU want to encourage EU citizens to leave their original countries, and if they do, the EU will reward them and their non-EU spouses by making it easier for them to travel on to a 3rd country? This makes no sense. I do not believe that the EU classifies a French person who is working in Ireland as higher than a French person who has stayed in France. The same rights should be conferred on both French people when they wish to travel to another country, e.g. Germany.

I think you are missing my point completely. Consider 2 seperate couples, who wish to visit Germany for tourism purposes together:

1. A) Couple A is an Irish citizen living with his non-EU spouse. The non-EU spouse is residing in Ireland on a Stamp4 granted under Irish National Law.
   B) Couple B is an Irish citizen who has lived elsewhere in the EU and is exercising treaty rights in Ireland living with his non-EU spouse. The non-EU spouse is residing in Ireland on a Stamp4EUFAM granted under the EU Directive

The non-EU spouse in Couple A will have to plan their trip thoroughly in advance and make bookings and then apply for a Schengen Visa to allow travel to Germany.
The non-EU spouse in Couple B will be allowed travel to Germany without any further need for a Visa

My point is that Couple A are treated as "lesser" than Couple B. I see no change in the guidelines from the original Directive when dealing with such couples. Their freedom and ease of travel within the EU is still limited, despite the fact the non-EU spouse should be granted a Visa (pending any concerns about Security etc.) it still means they must plan in advance, and apply for and gain the visa which is a complete barrier to spontaneous travel within the EU.

scrudu wrote:

• Couple A is an Irish citizen living with his non-EU spouse. The non-EU spouse is residing in Ireland on a Stamp4 granted under Irish National Law.
• Couple B is an Irish citizen who has lived elsewhere in the EU and is exercising treaty rights in Ireland living with his non-EU spouse. The non-EU spouse is residing in Ireland on a Stamp4EUFAM granted under the EU Directive

Hi scrudu,

I completely agree with you - 2004/38/EC was incepted with good intentions, but the implementation/execution is amateurish and accompanied by incompetence and ignorance. I guess part of the reason is that both the bureaucrats who came up with it (EU-officials in Bruxelles) and also the bureaucrats who are now supposed to implement it (politicians in the local countries "implementing" the directive into local laws, embassy staff and border police executing it in practice etc...) do not understand the intention in full, and also do not question/understand the logic behind the law.

I guess I could write a book about the inconsistencies in this law by now, without ever having been a lawyer or similar...

...considering your above examples I would like to mention the following, explicitly acknowledging that I find it illogical, but at least it should ease any attempts to travel:

Couple A:
Couple A cannot get a 4EUFam card - they are stuck with "Stamp 4". However, 2004/38/EC also applies to them when travelling. As such they have the RIGHT to travel without visa, however they cannot PROVE this right with the help of the 4EUFam card.

I'm explaining >>here<<, how and why they should be able to travel visa-free, regardless of not having a 4EUFam card.

Couple B:
Couple B have exactly the same RIGHTS while travelling, however they can (in reality rather "should be able to") prove their rights easily by simply flashing their 4EUFam card. This whole drama was discussed >>here<<, and was already cited a bit further above.

As a summary, I guess you are highlighting one of the inconsistencies and illogicalities of the law... Which can be circumvened if you know how to do it and dare to be persistent when facing problems at customs...

...regards from Zürich, Christian

ca.funke wrote:

scrudu wrote:

• Couple A is an Irish citizen living with his non-EU spouse. The non-EU spouse is residing in Ireland on a Stamp4 granted under Irish National Law.
• Couple B is an Irish citizen who has lived elsewhere in the EU and is exercising treaty rights in Ireland living with his non-EU spouse. The non-EU spouse is residing in Ireland on a Stamp4EUFAM granted under the EU Directive

Hi scrudu,

I completely agree with you - 2004/38/EC was incepted with good intentions, but the implementation/execution is amateurish and accompanied by incompetence and ignorance. I guess part of the reason is that both the bureaucrats who came up with it (EU-officials in Bruxelles) and also the bureaucrats who are now supposed to implement it (politicians in the local countries "implementing" the directive into local laws, embassy staff and border police executing it in practice etc...) do not understand the intention in full, and also do not question/understand the logic behind the law.

I guess I could write a book about the inconsistencies in this law by now, without ever having been a lawyer or similar...

...considering your above examples I would like to mention the following, explicitly acknowledging that I find it illogical, but at least it should ease any attempts to travel:

Couple A:
Couple A cannot get a 4EUFam card - they are stuck with "Stamp 4". However, 2004/38/EC also applies to them when travelling. As such they have the RIGHT to travel without visa, however they cannot PROVE this right with the help of the 4EUFam card.

I'm explaining >>here<<, how and why they should be able to travel visa-free, regardless of not having a 4EUFam card.

Couple B:
Couple B have exactly the same RIGHTS while travelling, however they can (in reality rather "should be able to") prove their rights easily by simply flashing their 4EUFam card. This whole drama was discussed >>here<<, and was already cited a bit further above.

As a summary, I guess you are highlighting one of the inconsistencies and illogicalities of the law... Which can be circumvened if you know how to do it and dare to be persistent when facing problems at customs...

...regards from Zürich, Christian

Thanks for your immense contribution to this board- Your postings have been of great help.

acme4242 wrote:Press Release July 2nd 2009 >here<

download New Guidelines >here<

Hi acme4242,

thank you for these links

IMHO the guidelines show how much the commission is NOT aware of what this law means for affected people on the ground:

What do the Guidelines aim to achieve?

This Communication aims to provide guidance to Member States on how to apply correctly Directive 2004/38. The objective is to make more effective the application of the Directive on the ground and to bring a real improvement for all EU citizens.

With the Guidelines the Commission intends to offer information and assistance to both Member States and EU citizens on issues identified as problematic in transposition or application.

The law is abundantly clear, and those countries who choose to deliberately ignore it (especially the UK and Ireland, but also others) also made it abundantly clear that they knowingly ignore the law and intend to do so in the future.

They need pressure, not "guidance".

As for myself (and probably most people in this forum), we do not need to "identify" problematic issues "in transposition or application", we need those issues solved.

How does the citizen benefit from the Guidelines?

The guidelines help citizens to obtain more clarity on a number of issues. The guidelines provide transparency on some notions such as sufficient resources. Moreover, by providing clarity on the notions of public policy and public security and on the proportionality assessment, citizens are in a better position to assess whether their rights are being respected.

We do not need to "assess whether (our) rights are being respected", we are clear and conscious that they are NOT respected.

What we need is a way to enforce our rights - immediately, and not at some time in the remote future.

(For example my wife and I would like to visit London together NOW, and not in 5 or 10 years...)

Are the Guidelines binding?

No. The Guidelines state the views of the Commission and are without prejudice to the case-law of the Court of Justice.

The guidelines do not contain any assessment of legislation and practices in place in the Member States.

Of course "guidelines" are not binding, and this is also why they are worthless. They will not change anything, while still someone (we all?) paid someone in Brussels to write this stuff...


Just to equally write something constructive:

• I plea for a card, pretty much as per Article 10 of 2004/38/EC, which all EU-family-members get once they are married to an EU-citizen. (No matter where they live, even if outside the EU).
• This card should look the same throughout all member-states.
• It should allow entry into all member-states for stays up to 3 months, as such being equal to a permanent Visa for all EU-member-states
• The card should be checked on each entry into the EU (together with the passport), to avoid abuse the card should be cancelled if a marriage is dissolved.

Sidenote: This would NOT give any additional rights compared to the ones which already exist, it would merely add a hassle-free and unambiguous way to easily prove rights held...

Why is the Commission not simply amending the Directive?

Given the unsatisfactory state of implementation of the Directive, the Commission is of the opinion that it would be detrimental to propose amendments to the Directive at this stage. The main problems that have been identified can be solved through better implementation of the Directive.

Exactly this is NOT true, at least it cannot be solved at short notice. But as this is Bruxelle's stance on things we will continue to suffer

Regards from Zürich, Christian

Folks,

I have gone thru lot of posts on this subject and would appreciate if anyone can clarify the following:

Can non-EU spouse of Irish Citizen apply for Stamp4EUFAM, so as to avail of free movement? My wife is living in this country for the last 5 years on Stamp 3 and have naturalised recently.

As per INIS web site, one can apply for the same:
http://www.inis.gov.ie/en/INIS/Pages/EU ... y%20Rights

But Q&A (see below) on the subject matter in INIS web site states
different:

Q I am an Irish National. Can my non EEA family members apply for EU Treaty Rights?

A The Directive applies to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members who accompany or join them. (Article 3 of Directive 2004/38/EC)
If as an Irish national you have exercised your EU Treaty Rights in another Member State with your family member and have now returned to the Irish State you may apply.
Evidence of having exercised your EU Treaty Rights in the other Member State in respect of you and your family member must be submitted with the application along with all other relevant documentation.

ChIrl wrote:Folks,

I have gone thru lot of posts on this subject and would appreciate if anyone can clarify the following:

Can non-EU spouse of Irish Citizen apply for Stamp4EUFAM, so as to avail of free movement? My wife is living in this country for the last 5 years on Stamp 3 and have naturalised recently.

As per INIS web site, one can apply for the same:
http://www.inis.gov.ie/en/INIS/Pages/EU ... y%20Rights

But Q&A (see below) on the subject matter in INIS web site states
different:

Q I am an Irish National. Can my non EEA family members apply for EU Treaty Rights?

A The Directive applies to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members who accompany or join them. (Article 3 of Directive 2004/38/EC)
If as an Irish national you have exercised your EU Treaty Rights in another Member State with your family member and have now returned to the Irish State you may apply.
Evidence of having exercised your EU Treaty Rights in the other Member State in respect of you and your family member must be submitted with the application along with all other relevant documentation.

CHRL what the INIS website says is perfectly correct.

In order for a non-eea family member of Irish national to benefit from this legislation, the Irish National would have to have lived in another memberstate with the Non-Irish national and be exercising treaty rights as Employed or self-employed person.

scrudu wrote:

• Couple A is an Irish citizen living with his non-EU spouse. The non-EU spouse is residing in Ireland on a Stamp4 granted under Irish National Law.
• Couple B is an Irish citizen who has lived elsewhere in the EU and is exercising treaty rights in Ireland living with his non-EU spouse. The non-EU spouse is residing in Ireland on a Stamp4EUFAM granted under the EU Directive

ca.funke wrote:I completely agree with you - 2004/38/EC was incepted with good intentions, but the implementation/execution is amateurish and accompanied by incompetence and ignorance.

ca.funke: I agree completely. I think the main fact is that they do not think about impact on people and dont seem to consider real life implementation of these rules.

ca.funke wrote:...considering your above examples I would like to mention the following, explicitly acknowledging that I find it illogical, but at least it should ease any attempts to travel:

Couple A:
Couple A cannot get a 4EUFam card - they are stuck with "Stamp 4". However, 2004/38/EC also applies to them when traveling. As such they have the RIGHT to travel without visa, however they cannot PROVE this right with the help of the 4EUFam card.

I have followed your thread on "4EUFam and EU wide travel - the complete guide" (fantastic effort on your part btw!) but didn't consider that it applied to Spouses of EU citizens whose visas were granted under National Law because of the following lines:

Article 5, Right of Entry
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.

Article 10, Issue of Residence Cards
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.

It was those same lines that were quoted to me by the German Embassy and Solvit when they both dismissed my claim that a non-EU spouse who holds a National Residence Card rather than an one granted under the EU Directive, should not be entitled to free travel (i.e. without a visa).

ca.funke wrote:As a summary, I guess you are highlighting one of the inconsistencies and illogicalities of the law... Which can be circumvened if you know how to do it and dare to be persistent when facing problems at customs...

If it were only customs that would be one battle to face, but typically the battle starts at the airport. Both Ryanair and Aer Lingus do visa checks and would most likely refuse. Even if we passed that barrier, then there is facing Immigration on the other end. So far we've never had a trip planned that we could risk missing by being "ballsy" enough to fight our way. I've battled from this side before travel but how often can you afford a 50:50 chance of not actually making it to your destination?

scrudu wrote:...fantastic effort on your part btw...

Thanks for the flowers

scrudu wrote:If it were only customs that would be one battle to face, but typically the battle starts at the airport. Both Ryanair and Aer Lingus do visa checks and would most likely refuse. Even if we passed that barrier, then there is facing Immigration on the other end. So far we've never had a trip planned that we could risk missing by being "ballsy" enough to fight our way. I've battled from this side before travel but how often can you afford a 50:50 chance of not actually making it to your destination?

Hi scrudu,

agreed, ultimately what you describe accelerated our move into the Schengen-Zone: I didn´t want to have a major legal battle in front of me when trying to spent Christmas with my family...

...sentimentals aside: My latest favourite quote, as per >>this<< thread, is:

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.

I therefore believe that it should be possible to travel without any visa, even if an EU / non-EU couple is NOT resident in the EU (ironically with the exception of travelling to your home-country)...

...I hope to have a risk-free opportunity to test this matter soon: While travelling southern Spain we will try to enter Gibraltar, where UK-rules apply. We´ll see if they want our touristic money or not, and in case it doesn´t work nothing much is lost...

All the best to my previous home-city!
(Btw: Again -ironically- if my wife would have gotten a 5yr-multiple-entry-Schengen-visa, we might still live in Dublin and thus outside Schengen... The way it´s handled at present encourages moving to a place to which you can´t get a visa. All very obscure in this European "Union".)

Regards, Christian