establishing family status

[snizenja]

Please excuse the repost, due to new developments I am changing the emphasis of my question.

The 04/38/EC directive would seem to be a real God send for us as I (an American) have been within eyesight of my fiancee (a Lithuanian) for over two years (minus a few weeks) and we have had a child in her host country. Because I have overstayed my tourist visa for about four months I am told that if I appeal to Lithuanian immigration for anything that involves my passport, I will be refused, then asked to leave officially whereby the penalties for my overstay would become severe. This includes applying for a marriage License. I can not appeal to the directive on behalf of my son because he is not considered a Lithuanian Citizen, Lithuania does not allow duel citizenship and they are aware that his American citizenship is automatic.

I will not leave my family and it would appear to be a violation of human rights to be refused any reasonable process to establish our union legally as I have overstayed on behalf of this basic human right.

I should not have the necessary paper work to legally marry from the States delivered for up to two months by this time I will surely be an overstayer in the EU.

Is it true that the directive does not apply to us before we are married and that overstayers have no rights?

[Wanderer]

I will not leave my family and it would appear to be a violation of human rights to be refused any reasonable process to establish our union legally as I have overstayed on behalf of this basic human right.

What about your violation of Lithuanian immigration law, does that not matter?

[snizenja]

Yes I believe it does matter. However I also believe (or hoped) that there should have been some reasonable means to apply for my entry based on my real and urgent family circumstances. I had no other option but to apply for a tourist visa. When in fact I wasn't one. My fiancee was experiencing complications during pregnancy and now we feel it would be unreasonable to separate.

When I entered I had no idea we would run into these kind of problems. I made an error in judgment assuming that it was a basic human right to be continuously available to my family and that Lithuanian immigration would recognize this. I still believe this and will act accordingly and will do everything in my power to make it legal.

[sakura]

Why are you starting a new post? Is it not the same situation?

As mentioned in my previous post, as your girlfriend is a Lithuanian citizen residing in Lithuania, your case is with the Lituhanian authorities FIRSTLY (and maybe even solely). You cannot use the directive as your girlfriend is not exercising her treaty rights as an EU citizen in another EU country. As stated here:

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.

http://ec.europa.eu/justice_home/doc_ce ... nce_en.pdf.

Note also that you have have no valid leave to remain within the Schengen area. If, however, you are now planning to move to another EU country, then the directive certainly applies to you. But then, you cease to deal with the Lithuanian authorities and will have to apply to the embassy of the country you wish to move.

If you are still planning on residing in Lithuania, then I suggest you get a good solicitor who can help you submit an application based on exceptional cirucmstances.