I refer to your e-mail of 18 March 2011 concerning the unlawful requirements some
Member States allegedly impose on family members of EU citizens.
Article 21(1) of the Treaty on the Functioning of the European Union stipulates that
every citizen of the Union shall have the right to move and reside freely within the
territory of the Member States, subject to the limitations and conditions laid down in the
Treaties and by the measures adopted to give them effect. The respective limitations and
conditions are to be found in Directive 2004/3 8/EC on the right of citizens of the Union
and their family members to move and reside freely within the territory of the Member
States. You can download the Directive in English at http://eurlex.
europa.eu/LexUriServ/LexUriServ.do?uri-OJ:L
229
0048:EN:PDF.As provided in Article 5(2) of the Directive, Member States may, where the EU citizen
exercises the right to move and reside freely in its territory, require the family member
who is a national of a third country to have an entry visa.
As confirmed by the Court of Justice of the European Union1, such family members have
not only the right to enter the territory of the Member State but also to obtain an entry
visa for that purpose. As this right is derived from the family ties only, the host Member
State may require family members applying for an entry visa to present their valid
passport and a proof of family ties.
The right to obtain an entry visa is not, however, unconditional as EU law enables
Member States to prohibit family members of an EU citizen from entering their territory
where they represent a risk to the requirements of public policy, public security or public
health within the meaning of Chapter VI of Directive 2004/38/EC.
The general framework of EU common visa policy is laid down in Regulation (EC) No
810/2009 of 13 July 2009 establishing a Community Code on Visas (Visa Code)2.
The Handbook for the processing of visa applications and the modification of issued
visas3 was adopted on 19 March 2010 to provide for more details as to how process visa
applications under the Directive (Part III of the Handbook). The Handbook recognises
that as Directive 2004/3 8/EC represents a lex specialis with regard to the Visa Code, the
Visa Code folly applies where the Directive does not provide an explicit rale but refers to
general "facilities".
The Handbook clarifies the rales of the Directive that the visa should be issued free of
charge. Section 3.6 of Part III provides that "in order to prove that the applicant has the
right to be issued with an entry visa under the Directive, he must establish that he is a
beneficiary of the Directive. This is done by presenting documents relevant for the
purposes of the three questions referred to above, i.e. proving that:
• there is an EU citizen from whom the visa applicant can derive any rights;
• the visa applicant is a family member (e.g. a marriage certificate, birth certificate,
proof of dependency, serious health grounds, durability of partnerships ...) and his
identity (passport); and
« the visa applicant accompanies or joins an EU citizen (e.g. a proof that the EU citizen
already resides in the host Member State or a confirmation that the EU citizen will travel
to the host Member State). "
Please note that the UK does not participate in the EU common visa policy and is bound
neither by the Regulation nor the Handbook. However, the rales of Part III of the
Handbook express in detail the rules of the Directive which binds the UK. It is thus
possible to extend the rales of the Handbook, mutatis mutandis, to the UK visa
obligations under Directive 2004/38/EC.
The website of the UK Border Agency on visa application guide for EEA and Swiss
nationals seems to reflect the above EU rules. However, as the Commission had received
a number of individual complaints alleging that the UK authorities are asking for
excessive supporting documents for entry visa applications, we drew attention of the UK
authorities to this particular issue in a bilateral meeting on 5 July 2010. The UK
authorities replied on 24 February 2011 and acknowledged that some parts of the
application form and guidance need to be amended. These are currently under review and
the work on this should be completed in April. Once this work is complete, the UK
Border Agency will issue a revised instruction to their entry clearance officers to ensure a
consistent approach across their offices.
To comply with Article 5(2) of Directive 2004/38/EC, France brought into force Article
R121-1 of the Code of Entry and Stay of Foreigners according to which the consulate
shall issue a third country family member of an EU citizen with a visa as soon as possible
and free of charge upon justification of the family link with an EU citizen.
As you rightly point out regarding the website of the French Embassy of Dublin, several
of the requirements indicated are exceeding those imposed by Directive 2004/38/EC.
However, this would seem to be an isolated case of wrongful information to which we
will draw the attention of the French authorities. We appreciate that you have chosen to
inform us on this issue.
Yours sincerely,