Making a stand

[stmellon]

Thanks to all the useful and encouraging posts on these boards, I have decided to make a stand and begin to campaign for the implementation of 38/2004/EC.

For no particular rhyme or reason, other than that it was mentioned in a recent post, I have decided to begin with Denmark.

[stmellon]

Ms. Bente Fedorowicz
Head of Consular Section
Embassy of Denmark


Dear Ms Fedorowicz,

I note on your website that to visit Denmark, "family members of a UK
national will need a visa."
http://www.amblondon.um.dk/en/menu/Cons ... orDenmark/

To my understanding, this is contrary to Article 5 of Directive
38/2004/EC, which provides that posession of a valid residence card
shall exempt such family members from the visa requirement.

To provide a specific example, I am a British Citizen, and my wife is
a Chinese citizen with Permanent Residence in the UK.

Under the terms of the above Directive, which extends the right of all
Union citizens to move and reside freely within the territory of the
Member States to spouses and family members, surely the Permanent
Residence vignette in my wife's passport constitutes "posession of a
valid residence card" and therefore exempts my wife, and others in her
position, from the visa requirement?


Please may I ask you to clarify the position of the Embassy of Denmark
on this matter?

I hope to receive a favourable response from you in due course.


Yours sincerely,

[stmellon]

Ambassador Pim Waldeck
Embassy of the Kingdom of the Netherlands



Dear Mr Waldeck


I am writing to express my confusion at your visa regulations for Non-EEA Spouses of UK citizens, as described on your website
http://www.netherlands-embassy.org.uk/p ... x.php?i=56

Quote:
*Please note that EU nationals who have always lived in the country of their nationality are not exercising EU treaty rights and are therefore not considered Union citizens. Their family members therefore are not covered by the provisions of Directive 2004/38/EC.



I am a British Citizen and, as a national of an EU member state, I am a Union citizen.

I have always lived in the UK. However, should I attempt to travel to the Netherlands, I would be exercising an EU Treaty Right - the Right to Free Movement- and this freedom is enshrined in the Directive 38/2004/EC.

If I should thus exercise my Treaty Right to Free Movement, the Directive also confers the same Union status and Right to Free Movement to my wife, a Chinese national with Permanent Residence in the UK. However, your website states;

"regular Schengen visa procedures apply... to spouses/children of British nationals who do not hold a Residence Card as a Family Member of an EEA National."


I would be very grateful if you would clarify why the Embassy of the Kingdom of the Netherlands does not consider a UK Permanent Residency vignette to be the equivalent of a Residence Card as a Family Member of an EEA National, in the spirit of the Directive 38/2004/EC?


I hope to hear from you in due course.


Yours sincerely,

[John]

I am a British Citizen, and my wife is a Chinese citizen with Permanent Residence in the UK

That being the case, why do you think that you are exercising EU Treaty Rights, and your wife has Permanent Residence?

Or put it another way, did you use the Surinder Singh route to get your wife into the UK?

And has your wife actually got PR, or has she actually got ILR?

Do appreciate that I also think the attitude of various EEA States is not correct, but I am just trying to visualise the sort of answers you might get to your letters.

[Tobbe]

I think what stmellon means (please correct me if I’m wrong) is that as
soon as an EEA national tries to exercise freedom of movement he is
using treaty rights. For example that is why you have 3 months of
residence by virtue, shouldn’t that apply to your family members as well?
Even though it might be the first time you move within EU? Why would
your family members need to go through national laws while looking for a
job? I only moved once and it applies to my wife…..

I guess that the IRL hold is not a substitution for a Schengen visa since
the directive states it is only residence cards based on the directive that
can be substitutes but I think he should get one free of charges etc
and not the “regular proceduresâ€

[John]

Exactly, the Directive specifically mentions Residence Cards, so unless one of those is held, I can't see how the Directive is going to help.

[ca.funke]

To my understanding, this is contrary to Article 5 of Directive 38/2004/EC, which provides that posession of a valid residence card shall exempt such family members from the visa requirement.

Hi stmellon,

although I am on your side and think that your wife SHOULD be exempted from the visa-necessity, I think the law is NOT on your side. The differentiation the law implies does not make much sense, but your wife is actually NOT exempted from the visa-requirement and WILL need a visa

Reasoning:

First of all, when you visit ("move to") a member-state you are covered by the directive. (This is already disputable, with the question being, does "move to" include visits, or does it mean "move to" as in relocating permanently"??!!)

Article 3
Beneficiaries
1. This Directive shall apply 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 as defined in point
2 of Article 2 who accompany or join them.

In order to be allowed to travel visa-free, your wife needs a "residence card referred to in Article 10"

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.

3. (...)

4. (...)

As you are a UK-citizen while living in the UK, you are NOT covered by 2004/38/EC while you are in the UK. Therefore you cannot and will not receive a "Residence card [for a] family member of a Union citizen"

Article 10
Issue of residence cards
1. 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.

As a summary, to my understanding you are indirectly screwed as you can't get the card which would allow for visa-free travel. This does not make sense at all, but is a fact.

One way out I heard of, but I cannot substantiate, is the following (maybe someone knows the details to this?):

If you move (permanently) to another EU-state and later return to your home-country, the commission wants to see those citizens treated locally as if the directive would still apply to them. (I just faintly remember this) Thus you should then receive a UK-issued Article-10 residence-card for your wife, which will allow for visa-free travel as per above and, as a side-effect, would be free of charge

So, maybe your next EU-holidays will involve an official "complete move", including the paperwork. Strangely after 1 or 2 weeks you will notice that this wasn't for you and "move" back

[Tobbe]

The problem is that some of the embassies say that Spouses of British
citizens must go through the whole Schengen procedure, bank
statements, full fees etc

For example:

“When travelling to the Netherlands without the EU/EEA family member,
regular Schengen visa procedures apply.
This also applies to spouses/children of British nationals who do not hold
a Residence Card as a Family Member of an EEA National.â€

[ca.funke]

The problem in this specific case in a nutshell (albeit illogical, it's still a fact) is:

• While you VISIT a country 2004/38/EC DOES apply, BUT
• the original poster cannot be in possession of the residence-card according to Article 10.

Also, the "residence-card according to Article 10" only allows accompanying or joining the family-member.

Thus, whoever lives in the EU-citizen's home country OR where the non-EU family member wants to travel alone, visa free travel is no reality.

As the above does not make sense, the law should change and/or the non-Schengen countries should join Schengen. (My usual plea)

The current situation is ridiculous and a waste of personnel resources in the embassies, as the required visas serve no reasonable purpose.

[John]

Agree, and while they are amending that in the Directive, I also suggest that they clarify :-

• the meaning of "durable relationship", as in Article 3.2(b)
• what rights are held by a person who is "merely" separated from an EU citizen, and not yet divorced? (Article 13)

As regards the second bullet point, whilst those already divorced might have rights to get PR, that does not apply to those that are separated, meaning that if the separation happens shortly before the 5 years are up, there is a real problem.

[stmellon]

Hi John, thanks for your post. I'm very open to questions/comments/criticisms as it's the only way any of us can improve our understanding of this fiasco

I am a British Citizen, and my wife is a Chinese citizen with Permanent Residence in the UK

That being the case, why do you think that you are exercising EU Treaty Rights, and your wife has Permanent Residence?

My argument is that "exercising Treaty rights" seems to be interpreted only as exercising the right to residence, but the Treaty also affords the right to freedom of movement.

Or put it another way, did you use the Surinder Singh route to get your wife into the UK?

No, she's here under the standard UK rules, so she actually has ILR.

Do appreciate that I also think the attitude of various EEA States is not correct, but I am just trying to visualise the sort of answers you might get to your letters.

Yes, I realise where you're coming from with this! Still, if we do the British thing of grumbling to ourselves and each other, but ultimately accepting the status quo without holding our public officers to account, nothing will ever change!

Of course, my e-mails are just a drop in the ocean (or maybe even a p!ss in to the wind, you might argue!)

[John]

Still, if we do the British thing of grumbling to ourselves and each other, but ultimately accepting the status quo without holding our public officers to account, nothing will ever change!

Of course it would all be so different if the UK was in the Schengen area! If that were the case there would be open access to all other Schengen area countries.

However the chance of the UK joining the Schengen area in the foreseeable future are probably even less than zero!

[ca.funke]

[quote="Tobbe"]“When travelling to the Netherlands without the EU/EEA family member,
regular Schengen visa procedures apply.
This also applies to spouses/children of British nationals who do not hold
a Residence Card as a Family Member of an EEA National.â€

[Richard66]

While you VISIT a country 2004/38/EC DOES apply

Allow me to contradict you: now even the UK, in their EEA FP information, says that UK citizens residing elsewhere in the EEA may come to the UK on a visit using the EEA.

[ca.funke]

One way out I heard of, but I cannot substantiate, is the following (maybe someone knows the details to this?):

If you move (permanently) to another EU-state and later return to your home-country, the commission wants to see those citizens treated locally as if the directive would still apply to them. (I just faintly remember this) Thus you should then receive a UK-issued Article-10 residence-card for your wife, which will allow for visa-free travel as per above and, as a side-effect, would be free of charge

So, maybe your next EU-holidays will involve an official "complete move", including the paperwork. Strangely after 1 or 2 weeks you will notice that this wasn't for you and "move" back

This is actually so, and can be found here.

I don't want to claim credit, I received this information from another poster via IM. (Let me know if you want the credit, I'll mention you )

...It does not matter if the only reason the British national went to another Member State to exercise an economic Treaty right was so that he/she could come back to the UK with his/her family members under EC law....

Happy "moving" holidays... I guess it should be possible to take up bar-work for a day, if you explain why it's needed...

[mym]

So, maybe your next EU-holidays will involve an official "complete move", including the paperwork. Strangely after 1 or 2 weeks you will notice that this wasn't for you and "move" back ;)

You need to move to another EEA state for at least 4 months before you will get away with applying under Surinder Singh. The residence paperwork in the other state alone is likely to take 6 months.

[ca.funke]

You need to move to another EEA state for at least 4 months before you will get away with applying under Surinder Singh.

Always keen to learn - where are the 4 months coming from?

The residence paperwork in the other state alone is likely to take 6 months.

In Germany you walk into the foreigners' office, explain your situation, and walk out with the EU-Family-residence card immediately after. (At least it was like that for a couple I personally know)

[mym]

Always keen to learn - where are the 4 months coming from?

I recall reading guidance on the old IND site (which I cannot locate now) that quoted 6 months, so 4 is a best guess, seeing as the minimum the BIA is likely to accept would be a month over the period during which you don't need to exercise a Treaty Right.

In Germany you walk into the foreigners' office, explain your situation, and walk out with the EU-Family-residence card immediately after. (At least it was like that for a couple I personally know)

And the other stuff? have you seen what they expect on the VAF5?

The European Casework Instructions states in 2.5.1 :

"the family members of a British national
returning to the UK will be treated as if they were the family members of an EEA national under the following conditions:

• After leaving the United Kingdom, the British national resided in an EEA
state and –

o Was employed there (other than on a transient or casual basis); or

o Established him/herself there as a self-employed person; and

• If the family member is his/her spouse, the marriage took place, and the parties lived together in an EEA state, before the British national returned to the United Kingdom.

As generally in the case of family members of EEA nationals, the family member of a British national falling under Regulation 9 will only have a right to enter the UK if lawfully resident in an EEA State. Such a family member will only have a right to reside in the UK under the 2006 Regulations if the British national would have a right to reside in the UK under those Regulations if he/she were an EEA national, e.g. because he/she is working or self-sufficient."

Note that reference to "other than on a transient or casual basis" and to "resided in" and "established" - all terms with legal resonance.