Breach of Directive 2004/38/EC

[a.s.b.o]

Hello, I am new to the issue of dealing with refusal for visa applications based on the Directive. My stepfather, who was suppose to travel with me to Estonia and then to Russia, was not let by the embassy to lodge the visa. The grounds were given

" Meantime the Home Office advises not to make any urgent travel plans until they have decided your application. Estonia as the Member of the European Union respects the procedure in United Kingdom of Great Britain and Northern Ireland and therefore we cannot make any decisions before the decision of the Home Office. As you and your family member need to travel urgently to the Russian Federation and not to Schengen area, we do not consider it essential and urgent to process the Schengen visa".

My travel plan was to travel to Tallinn and take a bus to Saint Petersburg. Now I have to abandon the trip. I want to address the refusal and to seek compensations as I now cancel the trip. Can you please suggest readings on how to proceed now?

we are gutted and frustrated. This refusal costed us loads in wasted and non-refundable tickets. Please suggest

[mgb]

Try Solvit
http://ec.europa.eu/solvit/

For compensation you have to find your own way via an solicitor in Estonia.

[a.s.b.o]

Try Solvit
http://ec.europa.eu/solvit/

For compensation you have to find your own way via an solicitor in Estonia.

So no work via European bodies will result in compensation-related settlement?

[secret.simon]

The first post is not clear.

Was your step-father accompanying you or another EEA citizen to Estonia?

the Home Office advises not to make any urgent travel plans until they have decided your application.

What application did your step-father have pending with the Home Office? Does he have his travel documents (passports) with him or are they with the Home Office?

What is his current status in the UK (I presume that he is in the UK)?

Solvit will advise you and help you address the issue, but I doubt it can help with the compensation for the tickets. Granting of visas is generally discretionary to the country involved. I am not sure whether within the EU, a country can be compelled to issue a visa to the dependants of an EEA citizen, especially when advised to the contrary by the government of another EEA country.

In theory, you could have turned up in Tallinn with your step-father and documentation of your relationship and they would have been obliged to allow him through.

[a.s.b.o]

The first post is not clear.

Was your step-father accompanying you or another EEA citizen to Estonia?

the Home Office advises not to make any urgent travel plans until they have decided your application.

What application did your step-father have pending with the Home Office? Does he have his travel documents (passports) with him or are they with the Home Office?

What is his current status in the UK (I presume that he is in the UK)?

Solvit will advise you and help you address the issue, but I doubt it can help with the compensation for the tickets. Granting of visas is generally discretionary to the country involved. I am not sure whether within the EU, a country can be compelled to issue a visa to the dependants of an EEA citizen, especially when advised to the contrary by the government of another EEA country.

In theory, you could have turned up in Tallinn with your step-father and documentation of your relationship and they would have been obliged to allow him through.

Yes, he was to travel with me. He requested his passport back in order to make emergency family-related travel.

I was always under impression that travel of the EEA national and his relatives are in their discretion. HO advice is valid but is not legally binding. If the RC was issued as required "immediately" no such cases would arise. Besides, solely, this advice is not a valid reason for refusal to issue of visa. Directive 2004/38/EC appears to be extremely clear as to what i need to provide to be able to get a visa for him to travel with me.

Please convert my frustrated maximalist perspective into a more constructive approach to reprimand the relevant authorities and to claim compensation for the losses.

[a.s.b.o]

I have attempted a number of last-gasp solutions but face a stone wall of misunderstanding.

Their position is that prior to issue of Registration Certificate they have no ways to establish whether my parents are my dependents. Issue of UK EEA FP, First Tier Tribunal attesting to the above and evidence of relations (birth-certiifcate, marriage certificates) do not suffice.

Their other position is that we have no need to travel. And certainly not to Estonia. Simply being able to travel as an EU citizen and being accompanies with parents is not goof enough of a reason.

Apparently, I also need a travel insurance, accommodation and other evidence. He contradicted his own list given on their website, numbered something in indecipherable estinglish and gave no response.

While the last point, and the second one to some degree, are pretty ridiculous (and are clearly in breach of Directive 38), I am interested in your interpretation of the first point.

[a.s.b.o]

I doubt it can help with the compensation for the tickets. Granting of visas is generally discretionary to the country involved. I am not sure whether within the EU, a country can be compelled to issue a visa to the dependants of an EEA citizen, especially when advised to the contrary by the government of another EEA country.

In theory, you could have turned up in Tallinn with your step-father and documentation of your relationship and they would have been obliged to allow him through.

Simon, you might be interested in reading Petition 1307/2007 by Richard Willmer (British).

"With regard to the supporting documents, as the third country family members’ right to obtain an entry visa is derived from the family ties only, Member States may only require them to present documents attesting to their identity and family ties with the EU citizen"

[mgb]

Take the visa handbook from here:
http://ec.europa.eu/dgs/home-affairs/po ... 620_en.pdf

Show them
PART III:SPECIFIC RULES RELATING TO APPLICANTS WHO ARE FAMILY
MEMBERS OF EU CITIZENS OR SWISS CITIZENS

and ask them if they are willing to do her duties.

[a.s.b.o]

Take the visa handbook from here:
http://ec.europa.eu/dgs/home-affairs/po ... 620_en.pdf

Show them
PART III:SPECIFIC RULES RELATING TO APPLICANTS WHO ARE FAMILY
MEMBERS OF EU CITIZENS OR SWISS CITIZENS

and ask them if they are willing to do her duties.

Thanks. We lost tickets and now have to make alternative arrangements. I skimmed through texts and have preliminary constructed a letter. However, I am determined to claim damages as the result of conscious decision to frustrate our trip. Given the number of emails, links and determination of the opponents, claims of their deliberate act of refusal will be easy to support. Please guide me regarding the framework in place dealing with such claims. Cheers

[mgb]

The problem is you would have to sue the Republic of Estonia.
If you find a laywer in Estonia who take the case the question is how much money/deposit he want for his work.
There is no easy solution to get compensation.

[a.s.b.o]

The problem is you would have to sue the Republic of Estonia.
If you find a laywer in Estonia who take the case the question is how much money/deposit he want for his work.
There is no easy solution to get compensation.

in UK one can appeal to FTT. Would in principle, this be possible? i would travel and attend it in order to present the case

[mgb]

As far as I understand your story you was fobbed off and didn't get a formal refusal of a schengen visa application.
There is nothing you can appeal.
If I where you I would lodge a complain at the Estonia ministry of foreign affairs.
First step could be to ask via the information page
http://vm.ee/en/request
who is responsible for a complain against the Estonia embassy in the UK.
Alternativly you could use the facebook presentation of the ministry for the first question.

[secret.simon]

Given that EU law is a part of British law, I suppose that you should be able to sue the Republic of Estonia in a British court for breach of the Directive.

You could also raise a complaint through Solvit. If escalated within the EU system, the Commission can use Estonia for breach of the Directive. That will not lead to compensation, but better enforcement of the Directive.

But, having read the last message by mgb, I reread the first post by you. If your step-father was dissuaded from submitting the application, there was no actual breach of the Directive. Therefore, I do not think there would be any compensation in such a case. It may not even be justiciable in a court of law if there was no actual breach. Had he submitted the application and he had been turned down, that would have been a different matter. In this case, it was just incorrect advice and they can only be given a slap on the wrist if that.

Mgb's suggestion of complaining to the Estonian Ministry of Foreign Affairs seems to be the only option.

Their position is that prior to issue of Registration Certificate they have no ways to establish whether my parents are my dependents. Issue of UK EEA FP, First Tier Tribunal attesting to the above and evidence of relations (birth-certiifcate, marriage certificates) do not suffice.

That is rubbish. I would imagine that birth and marriage certificates are a more primary method of proving a relationship.

"With regard to the supporting documents, as the third country family members’ right to obtain an entry visa is derived from the family ties only, Member States may only require them to present documents attesting to their identity and family ties with the EU citizen"

I believe that that is already the legal position. It could take a lot of time at the border but the immigration officials are obliged to issue a visa in these circumstances. The main risk is that the Stupid will not allow him to board the plane in absence of an Estonian visa.

[a.s.b.o]

As far as I understand your story you was fobbed off and didn't get a formal refusal of a schengen visa application.
There is nothing you can appeal.
If I where you I would lodge a complain at the Estonia ministry of foreign affairs.

Gents,

does their response give any grounds for making the 'refusal to process' argument?

>>>
"Hereby I am sending you the reply on behalf of the Minister of Foreign Affairs of the Republic of Estonia .

Thank you for your e-mail. Our aim is to offer a service of good quality to all visa applicants all over the world and therefore we handle every complaint in detail with much attention.
I wish to assure you that the consular officers handle all visa applications according to the Schengen Visa Code and at the same time follow very carefully the rules relating the applicants who are family members of the EU citizens.

Your family member has already received the entry visa according to the Directive 2004/38/EC to join you in the United Kingdom of Great Britain and Northern Ireland.

Your family member has applied for the residence card from the Home Office. The decision to grant the applicant a resident's status is to be made by the host country. The host Member State, which in your case is the United Kingdom of Great Britain and Northern Ireland, shall undertake an extensive examination of the personal circumstances and shall justify the decision about residence to these people.The residence card must be issued within six months from the date of application as defined in the Directive 2004/38/EC.

Meantime the Home Office advises not to make any urgent travel plans until they have decided your application.

Estonia as the Member of the European Union respects the procedure in United Kingdom of Great Britain and Northern Ireland and therefore we cannot make any decisions before the decision of the Home Office. As you and your family member need to travel urgently to the Russian Federation and not to Schengen area, we do not consider it essential and urgent to process the Schengen visa.

Once the family member receives the residence card, which has been issued pursuant to the Directive 2004/38/EC bearing the text "Residence Card of a Family Member of an EEA National ", he may enter Estonia without a visa, provided that the family member is travelling together with the EU/EEA/EFTA national or to the EU/EEA/EFTA national.

[mgb]

You should ask the ministry of foreign affairs if the republic of estonia is aware of the CONSOLIDATED version of the Handbook for the processing of visa applications and the
modification of issued visas based on:
COMMISSION DECISION C(2010) 1620 final and
COMMISSION IMPLEMENTING DECISION C (2011) 5501 final.

In PART III:SPECIFIC RULES RELATING TO APPLICANTS WHO ARE FAMILY
MEMBERS OF EU CITIZENS OR SWISS CITIZENS the procedures are complete different than the procedures used from the Estonian Embassy in UK.

Can the ministry of foreign affairs explain this extreme differences.

[Ksu]

Hi there!
Were your parents able to get the residence permit? I'm in the similar kind of situation. Any information would be appreciated.