Breach of 2004/38/EC: how to value compensation amounts?

My husband's schengan visa application under this directive was refused processing by the French Embassy, Islamabad, unless bank statements and other travel details were provided to them. I am a UK Citizen. Husband didnt get any formal letter of refusal by them - just utter disgusting behaviour! I have a case going on against them now, but if this get as far as the courts, or even before then, how can we value the compensation amounts due to us? Would this just be how much we spent (translations, attestations etc) on the embassy appointment, or can distress and most possibly discrimination also be calculated? If so, how?

I have not found any guidelines for compensation for violations for this area of EU law. namely free movement of EU citizens and their family.

I do believe that monetary compensation is the only way to shape up
rogue despot Embassies and Consulates who show contempt for Citizens
lawful rights.
But I have not heard of anyone taking such violations to court.
If anyone has experience of taking legal action, I would love to hear about it.

The EU commission have set up an organisation called Solvit
http://ec.europa.eu/solvit/site/centres ... /index.htm
They are suppose to assist Citizen in these cases. I have heard some
positive accounts, but sadly most people say they are not so good, and take a lot of pushing.
They are free, so at least you lose nothing, except maybe your time.

I presume you have read up all the rules, laws and guidelines.

1)
Schengen Visa Code (Law)
http://eur-lex.europa.eu/LexUriServ/Lex ... 058:EN:PDF

2) Embassy Handbook covering EU citizens family members (Guidelines)
http://ec.europa.eu/home-affairs/polici ... 620_en.pdf

For more information see
http://eumovement.wordpress.com/other-schengen/
http://eumovement.wordpress.com/2007/04 ... u-citizen/

I would record things as follows...

You need to make a list of all the things you have spent money on related to the visa application.

You also need to think about the opportunity cost of not having the visa. So for instance if you would have taken a specific high paying job if you had the visa, but you could not take the job, then you figure out how much that would have paid you.

And if you had to change you plans, and keep an hotel/apartment/car for longer than you thought, then you should record that too. Missed airline flights would go in this category.

The point is to think broadly and keep a detailed set of lists, plus any evidence of the costs/jobsoffers/tickets that you can.

Hi to both

Thanks for your insights. Yes, SOLVIT really do seem quite useless and they are currently dealing with my case, but they need the occaisional 'prodding' from me now and again. From what I understand, by what I am told my the person at SOLVIT dealing with my case, they have a shared computerized system and they raise the issue with the SOLVIT team of the country you want to go to, so in my case - France.

I'm moving to France to pursue postgraduate studies and possibly work part time to supplement studies there and my husband would have found a job full time working. My second option is to go to the US to do my studies, but obviously, Europe is the natural option for me, especially since my husband would not be able to work in the US, unless he was sponsored by a company (unlikely) since he cannot work on the American visa he would get, being the spouse of a student - so my husband would have no rights to do anything in US, apart from pay international tuition fees, if he also wanted to study. In France, tuition is more or less free and he wud also have the same rights as a national - unlike the US. Directive - thanks for the guidlines, they will be useful, but I hope it doesnt get to this stage and that my husband will be swiftly offered his visa, when they realize they breached the directive.

Be sure to read http://eumovement.wordpress.com/2010/09 ... ber-state/ when you have a chance. Obviously no rush though

Directive/2004/38/EC wrote:Be sure to read http://eumovement.wordpress.com/2010/09 ... ber-state/ when you have a chance. Obviously no rush though

Ohhhhhhh thats a nice piece of meat you've given me there hahaha! Awesome, looks interesting, ill certainly give it a read. I have seen your blog before and I admire your committment to the EU Directive, Mr/Ms Directive!

SRAQAI, best of luck if you can afford to take France to court! I would love to do the same as would many others. France seem to be the worst with lying and obstructing these visas.
I am from the UK and was moving to France with my Tunisian husband and spent four months in Tunisia fighting the French embassy who said everything from 'there is no such visa' to 'there is but you can't have it' and demanded documents etc that they were not allowed to ask for.
They would not let me set foot inside the embassy, nor would anyone speak to me.
They deliberately lie and /or pretend that they do not know anything about these regulations.
SOLVIT are indeed useless, particularly UK SOLVIT, they don't seem to know the EU laws either.
It took four months of fighting all day everyday to get to France and we ended up arriving penniless and have had nothing but problems since because of this.
When you get to France they do not issue the correct residence cards either so the fight goes on.
The EU are not interested in doing anything about these breaches of the law unfortunately, perhaps the only way to fight it is to find as many people as possible in this situation with rights under the Directive and band together.
I know two other couples in France who had exactly the same problems and another in Tunisia who have taken six and a half months to get their visa and are also in the same position that we were having had to live there on the money they had saved to come here.

skele wrote:SRAQAI, best of luck if you can afford to take France to court! I would love to do the same as would many others. France seem to be the worst with lying and obstructing these visas.
I am from the UK and was moving to France with my Tunisian husband and spent four months in Tunisia fighting the French embassy who said everything from 'there is no such visa' to 'there is but you can't have it' and demanded documents etc that they were not allowed to ask for.
They would not let me set foot inside the embassy, nor would anyone speak to me.
They deliberately lie and /or pretend that they do not know anything about these regulations.
SOLVIT are indeed useless, particularly UK SOLVIT, they don't seem to know the EU laws either.
It took four months of fighting all day everyday to get to France and we ended up arriving penniless and have had nothing but problems since because of this.
When you get to France they do not issue the correct residence cards either so the fight goes on.
The EU are not interested in doing anything about these breaches of the law unfortunately, perhaps the only way to fight it is to find as many people as possible in this situation with rights under the Directive and band together.
I know two other couples in France who had exactly the same problems and another in Tunisia who have taken six and a half months to get their visa and are also in the same position that we were having had to live there on the money they had saved to come here.

OMG, posts like these make me very angry. Do not let them get away with this!
Write to European Ombudsman, European Commission and your country's MEPs.
Then document all your damages (financial and otherwise) caused by their action/inaction and sue them to recover these damages (I'd look for a lawyer who would agree to help for a percentage of the compensation).
Contact information for
European Ombudsman: http://www.ombudsman.europa.eu/start.faces
European Commission: http://ec.europa.eu/eu_law/your_rights/ ... rms_en.htm
MEPs: http://www.europarl.europa.eu/members/p ... oSearch.do ( or http://www.writetothem.com/ for UK citizens)

Hi Mastermind, the EU are not interested, I wrote to pretty much everyone, on every level, most don't even bother to respond. The complaints division/ombudsman whatever are not taking things any further if you get the visa in the end.
I wrote to every MEP in London, no one is interested, which is why I suggested finding as many people as possible.
I did once talk to Vivien Reading's spokesperson and he said that would probably be the only way to get anything done.
As for taking legal action that would require a lot of money that I for one don't have. If anyone knows of a lawyer who would be willing to do it for a percentage and nothing up front I would love them forever!
I do not want to let this go, I really don't but I have fought and fought and fought and no one is interested, particularly at the EU in doing anything about it.
Anyone who wants to get in touch my email address is skelehutton@hotmail.com, hopefully there is strength in numbers.

I personally think that if we as citizens are accountable to the law then governments also have to be taken to account.

Then it looks like making them pay is the only option to make them come to their senses.
I do not know if it is possible to sue French minister of foreign affairs (or whatever ministry operates French embassies) in a UK court, try googling "uk solicitor no win no fee", contact a few of them and ask. If you can't choose jurisdiction to be the UK despite you being a UK national then you'll need to find a French solicitor and do it in a French court. (which will most likely refer the case to the European Court of Justice anyway as the EU legislation is involved and your fundamental rights of free movement guaranteed by EU/Lisbon Treaty were violated).

Also, you might be eligible for legal aid (free) if you can not afford a lawyer. See http://ec.europa.eu/civiljustice/legal_ ... _ec_en.htm and http://ec.europa.eu/civiljustice/legal_ ... fra_en.htm
And probably an interpreter too, see http://www.humanrights.coe.int/aware/GB ... s/1093.pdf (Human Rights Handbook)

Here is some more useful information: http://en.wikipedia.org/wiki/Contingent_fee

skele, did you try to make a petition to EU Parliament? See http://www.europarl.europa.eu/parliamen ... y.do?id=49
Looks like it works, at least in some cases (example: http://www.immigrationboards.com/viewto ... 685#423685 )

Hey mastermind and Skele,

Thanks for your posts....

Skele.... I have already written to all my London MEP's, and to be honest am not holding my breath with them! I don't think I will get far with them. In terms of my case, I have found an organization, who is willing to help me on an 'urgent' basis and they seem to be working quite rapidly on my my. My caseworker has even emailed me, asking for more information, over this weekend! I think the specific caseworker that I have is very passionate about human rights (is his specialism) and the fact that he is French, I think will also help. He is going to write a letter for me (in French!) to the Embassy that my husband applied to. Another thing, which confused me is this: He told me that in order for my husband to apply for a residency card, he would need to apply for a 'long sejourn' Visa, which I think is 6 months long. Everything that I have seen and read suggests that my husband is able to apply for a French residency card, on the 3 month short term Visa. I know that there has been a recent change in regulation, however, I don't think people in my husband's category, under this Directive, are effected by this change, although I may be wrong. Do you know anything about this?

secondly, what do you have in mind, in terms of what can we 'do', to get our voice heard? Ill email you about this, I guess. Do you think it is worth even writing at this stage to the Euro. Ombudsman service, considering they only take 'mal-adminsitration' cases? Would our situation fall into the category of 'mal-admin', do you think?

SRAQAI wrote:Another thing, which confused me is this: He told me that in order for my husband to apply for a residency card, he would need to apply for a 'long sejourn' Visa, which I think is 6 months long. Everything that I have seen and read suggests that my husband is able to apply for a French residency card, on the 3 month short term Visa. I know that there has been a recent change in regulation, however, I don't think people in my husband's category, under this Directive, are effected by this change, although I may be wrong. Do you know anything about this?

This is an illegal requirement as it is not one of the exhaustive conditions or required documents for residence card application defined in the Directive 2004/38/EC ( http://eur-lex.europa.eu/LexUriServ/Lex ... 048:EN:pdf ), see Article 10(2) for the exhaustive list of required documents. The type of visa is irrelevant (as well as whether there is visa at all).

secondly, what do you have in mind, in terms of what can we 'do', to get our voice heard? Ill email you about this, I guess. Do you think it is worth even writing at this stage to the Euro. Ombudsman service, considering they only take 'mal-adminsitration' cases? Would our situation fall into the category of 'mal-admin', do you think?

As I mentioned in my previous post above, petitioning the EU Parliament is probably the proper channel. It is a legislative body so it is not restricted to 'mal-adminsitration' cases, its job is rather to fix legislation (and to be concerned if existing legislation is not enforced).
http://www.europarl.europa.eu/parliamen ... y.do?id=49

Any citizen of the European Union, or resident in a Member State, may, individually or in association with others, submit a petition to the European Parliament on a subject which comes within the European Union's fields of activity and which affects them directly. Any company, organisation or association with its headquarters in the European Union may also exercise this right of petition, which is guaranteed by the Treaty.
A petition may take the form of a complaint or a request and may relate to issues of public or private interest.
The petition may present an individual request, a complaint or observation concerning the application of EU law or an appeal to the European Parliament to adopt a position on a specific matter. Such petitions give the European Parliament the opportunity of calling attention to any infringement of a European citizen's rights by a Member State or local authorities or other institution.

So, one way of doing it might be:
In your letter inform them of all mal-practices and illegalities you have encountered (write down a list and include copies of evidence if you have any) and request that they contact (directly or via European Commission) relevant authorities of the member state and make sure that the legislation and instructions for caseworkers and other personnel is updated to rectify those illegalities and to enforce the law. (be specific on every point of your list, e.g. request that that illegal requirement of a specific type of visa mentioned above is removed from legislation and caseworkers' instructions, and explain why - see above)

IMHO the point should be (when engaging the EU Parliament) not to ask to fix specific "mal-administration acts", but to fix/enforce policies.

mastermind wrote:[see] Article 10(2) for the exhaustive list of required documents

Article 10(2) lists documents for a Residence Card. While you can hope and assume that the same list applies for entry visas, it is not explicitly stated. I think if it were were explicitly stated, we would not have this problem!

It is specifically an "entry visa" that is issued: Something to enter on.

Article 5 -- Right of entry
1. ...
2. 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.

Member States shall grant such persons every facility to obtain the necessary visas.
Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.

Does anyone know the source of the coloured language on visas? Does it come from an ECJ decision, or from something from the European Commission?

Directive/2004/38/EC wrote:

mastermind wrote:[see] Article 10(2) for the exhaustive list of required documents

Article 10(2) lists documents for a Residence Card. While you can hope and assume that the same list applies for entry visas, it is not explicitly stated. I think if it were were explicitly stated, we would not have this problem!

You missed the point. SRAQAI was told that France requires an applicant to enter on a specific kind of visa as a condition of residence card application.

It is specifically an "entry visa" that is issued: Something to enter on.

The requirements for these are pretty obvious from Shengen visa application forms! It is explained right on the form what information an EU-citizen's family member is not required to provide. Download a form and have a look: http://www.bfm.admin.ch/content/dam/dat ... -en-de.pdf

Bottom of page 2 wrote: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.

Article 5 -- Right of entry
1. ...
2. 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.

Member States shall grant such persons every facility to obtain the necessary visas.
Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.

Does anyone know the source of the coloured language on visas? Does it come from an ECJ decision, or from something from the European Commission?

Erm... How about your nickname?
Directive 2004/38/EC, Article 5(2), 2nd paragraph: http://eur-lex.europa.eu/LexUriServ/Lex ... 048:EN:pdf

mastermind - I completely agree with everything you have posted and this is where I am confused, when my caseworker told me this! Do you think maybe the 'language' in the 'French' version of the legislation is different, or something - is there a chance that this could be the case? There is obviously some kind of miss communication going on, in terms of enforcing right of EU Citizens and their Spouses, so I cannot help but think that there may be a 'language' issue.... or, mind the pun, lost in translation!

I am going to email my caseworker about this - because there is obviously something wrong here! from what I know, a 3 months Schengan is OK to apply for a residency card in France. I am also going to see if he can provide a link to what he is reading.... bit confusing to say the least.

In regards to the visa application forms... this is also that gave us 'hope' that we should not have issues - I think this form is a standard form, provided to all EU Countries, they all look the same. I don't think Embassy staff themselves, (obviously) are trained to even deal with specifics of EU law, and probably do not know what the point marked by the asterisks, actually mean - since its not them, but the European institution that has provided them with this form. This is why, I think the Embassies are implementing national law on EU cases - simply because they have no idea about the EU laws/procedures.

The French translation of the Directive can not be THAT much different
Let's see what your caseworker will reply.
If embassy personnel can't read their own forms, well... educate them politely

SRAQAI wrote:from what I know, a 3 months Schengan is OK to apply for a residency card in France.

Even if one is "illegally" in the country he/she should be able to apply for a residence card.

mastermind wrote:

Article 5 -- Right of entry
1. ...
2. 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.

Member States shall grant such persons every facility to obtain the necessary visas.
Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.

Does anyone know the source of the coloured language on visas? Does it come from an ECJ decision, or from something from the European Commission?

Erm... How about your nickname?
Directive 2004/38/EC, Article 5(2), 2nd paragraph: http://eur-lex.europa.eu/LexUriServ/Lex ... 048:EN:pdf

My quote does indeed come from Directive 2004/38/EC. And I am wondering what is the original source of those phrases.... That might give a sense of exactly what the requirements are that are implied (but not specified) by the words.




On the subject of which type of visa is required, see Commission v Spain (Free movement of persons) [2005] EUECJ C-157/03 (14 April 2005)
Especially paragraph 35-39 and the first conclusion paragraph

mastermind wrote:

SRAQAI wrote:from what I know, a 3 months Schengan is OK to apply for a residency card in France.

Even if one is "illegally" in the country he/she should be able to apply for a residence card.

I think my caseworker - seeing my case as an 'urgent' case and is even working on it during his weekend, is safeguarding himself from what the French authorities may turnaround and say to him - he is looking at things in the French perspective. I have just sent him an email, quoting certain items from the directive, in regards to documents required for a residency card, along with a link to the actual directive. I am sure, hopefully, this will be adequate.

I have just re-read the email sent to me by my caseworker. He is referring to French legislation, not the EU Directive. Are we not still covered under the Directive.... i am sure

SRAQAI wrote:I have just re-read the email sent to me by my caseworker. He is referring to French legislation, not the EU Directive. Are we not still covered under the Directive.... i am sure

Not sure specifically what the email says.

But for the most part, Directives do not have direct effect in a country so long as they are correctly transposed into National Legislation and does by the deadline specified in the Directive.

See http://eumovement.wordpress.com/eu-coun ... fo-france/ for some of the national legislation and also for a conformity study that shows correspondence between national legislation and the Directive

Thank you for the link
The link you provided says that in order for a family member of an EU citizen to apply for a residency card, titles 'CE - Familiy member - all professional activities', we only need to provide our marriage cert. proof of residence in france, insurance, evidence of rights of EU Citizen (British passport) AND:
Documents necessary for entry in France. Doesnt say anything abt needing a short or long stay visa!

Directive/2004/38/EC wrote:Be sure to read http://eumovement.wordpress.com/2010/09 ... ber-state/ when you have a chance. Obviously no rush though

I have read elsewhere that the UK impose a requirement of prior
residence in another EU state, for EU nationals, otherwise they do not
qualify for reduced EU national fees and support.

Something like METOCK for students, you must already be resident in
another EU state.


http://www.direct.gov.uk/en/EducationAn ... /DG_065322

EU nationals
As an EU national, or a family member of an EU national, you can generally apply for financial help towards the cost of tuition fees when studying in England, Wales or Northern Ireland if:

• you will have been living within the EEA and/or Switzerland for at least three years when you start your course, and
  
  your main reason for being in the EEA and/or Switzerland was not to receive full-time education

acme4242 wrote:

Directive/2004/38/EC wrote:Be sure to read http://eumovement.wordpress.com/2010/09 ... ber-state/ when you have a chance. Obviously no rush though

I have read elsewhere that the UK impose a requirement of prior
residence in another EU state, for EU nationals, otherwise they do not
qualify for reduced EU national fees and support.

Something like METOCK for students, you must already be resident in
another EU state.


http://www.direct.gov.uk/en/EducationAn ... /DG_065322

EU nationals
As an EU national, or a family member of an EU national, you can generally apply for financial help towards the cost of tuition fees when studying in England, Wales or Northern Ireland if:

• you will have been living within the EEA and/or Switzerland for at least three years when you start your course, and
  
  your main reason for being in the EEA and/or Switzerland was not to receive full-time education

Yes, I am aware of this three year rule. Regardless, my husband would still be able to work, whilst waiting out the 2 years to qualify for home tuition fees, and I think that since I am a student and have been living within the EU for last three years, then my spouse would also be eligible for home fees, according to local colleges.