US Lithuania over-stayer. Schengen over-stayer?

[snizenja]

I am a US citizen. My Lithuanian girlfriend and I have a four month old child here in Lithuania, (We should have out paper work together to marry in about two weeks). I flew from Ireland some six months ago when I discovered she was having complications. Lithuanian immigration has not been sympathetic to our situation and did not allow me an extension to my three month tourist visa. Hence I have been illegal in Lithuania for over three months and as such I believe I am unable to legitimately apply for residency permits in Lithuania for that reason.

Am I also illegal in the eyes of the Schengen community? Since Lithuania joined late last December. May I exit the EU through a Shengen country other than Lithuania with a clean passport and perhaps apply for a residency permit from the outside? Say Croatia.

We do not want to separate and a marriage visa to the US could take up to eight months. May I appeal to any faction the EU for some kind of extension or permit? Probably not. Then what am I up against if leave the EU for the US eight months from now?

Thank you very much for any information or leads to arbitration.

[snizenja]

The 04/38/EC directive would seem to be a real God send for us as I have been within eyesight of my partner for over two years (minus a few weeks) and we have had a child in her host country. However 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 sever. 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 appears to be a violation of human rights to be forcibly separated from them but I don't know how to make our family official in the eyes of the government.

[sakura]

I am a US citizen. My Lithuanian girlfriend and I have a four month old child here in Lithuania, (We should have out paper work together to marry in about two weeks). I flew from Ireland some six months ago when I discovered she was having complications. Lithuanian immigration has not been sympathetic to our situation and did not allow me an extension to my three month tourist visa. Hence I have been illegal in Lithuania for over three months and as such I believe I am unable to legitimately apply for residency permits in Lithuania for that reason.

Am I also illegal in the eyes of the Schengen community? Since Lithuania joined late last December. May I exit the EU through a Shengen country other than Lithuania with a clean passport and perhaps apply for a residency permit from the outside? Say Croatia.

We do not want to separate and a marriage visa to the US could take up to eight months. May I appeal to any faction the EU for some kind of extension or permit? Probably not. Then what am I up against if leave the EU for the US eight months from now?

Thank you very much for any information or leads to arbitration.

If your girlfriend is Lithuanian and your issue is with the Lithuanian authorities, the EU hardly comes into it. I don't know much about their laws, but in the UK, if it is a British citizen in the UK then it is dealt with under British immigration laws, not EU laws. So it is probably the same with Lithuania, and if they don't want you to remain or get married (and it's all legal...) then you don't have much chance of succeeding.

As for going to another Schengen country - I can't see how that is possible. Technically you have overstayed in the Schengen area, so I think that you won't obtain legal residency just by moving into another Schengen country. As a US citizen you have a 90 day tourist entry clearance for the Schengen zone (and not for each Schengen country), which you have surpassed.

Is your child not a Lithuanian citizen at all?

As for human rights, you do have a right to a family life but it does also include going back to your country to sort out your status. Again, I don't know the rules in Lithuania, but they don't HAVE to grant you anything if you are in the country illegally. I suggest you return to the USA and apply from there, otherwise you'll have to get a good immigration lawyer (well, you should do that anyway) and take your case through the appeals system.

[snizenja]

ACK! This is why one shouldn't repost. It wasn't my intention to confuse this forum. I'm sorry for any inconvenience.

Thank you very much for the response I will quote it and reply in my repost "establishing family status".

[snizenja]

Okay, I'm realizing that it may be even messier to try and move your reply. Again I'm very sorry for the inconvenience.

"If your girlfriend is Lithuanian and your issue is with the Lithuanian authorities, the EU hardly comes into it."

Wow, so you are saying that the directive 04/38/EC only applies to Union members that are moving out of their host country? That seems odd to me and I missed the part of the directive that specifies this. So it's basically intended to insure free movement, not necessarily to protect human rights as I thought?

[Wanderer]

Okay, I'm realizing that it may be even messier to try and move your reply. Again I'm very sorry for the inconvenience.

"If your girlfriend is Lithuanian and your issue is with the Lithuanian authorities, the EU hardly comes into it."

Wow, so you are saying that the directive 04/38/EC only applies to Union members that are moving out of their host country? That seems odd to me and I missed the part of the directive that specifies this. So it's basically intended to insure free movement, not necessarily to protect human rights as I thought?

Have moved out and are exercising a treaty right. It's so that partners etc can move within the EU with their partners where they cannot use the local immigration rules, cos they are not citizens.

ie If I move to Germany with my non-EU gf I cannot use UK immigration rules as I don't live there, I cannot use German rules since I am not a Germany Citizen, therefore EU rules apply.

[sakura]

This is why having two threads is confusing!

Yes, the directive can't help you or your girlfriend, as my quote (in the other thread) pointed out. The only time the EU comes into it is if you have exhausted all channels of the Lithuanian laws and wish to take it up to the European Courts of Justice as a LAST resort, but you cannot use the Directive if you plan to reside in Lithuania.

Again, a solicitor is your best bet, someone very well versed in Lithuanian immigration rules.

[snizenja]

Okay that's clear. Thanks for straightening me out. The directive is primarily intended to cover Union members who are can not represented by local jurisdiction. I'll have to reread it to find that.

I contacted three different Lawyers before I violated, which was around the time my son was born. The help I received was expensive and ultimately immaterial plus I got a lot of inconsistent information going this route. The last resort was four months ago when I was told they could put me in jail and escort me out if refused to leave after an official request to do so. So I've been trying to avoid that official request while looking for other means. This forum and the discovery of the directive gave me some hope in what I thought was a lost cause.

Anyway thanks for the input.

[Directive/2004/38/EC]

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.

Sorry, this is wrong. American citizenship is not automatic for a child born outside the US. You have to go through a long process to prove that his US parent satisfied certain conditions the time of birth. Your son may or may not have US citizenship depending on your history. And remember that you were not married at the time of birth!

I do not know about Lithuania, but most countries which do not like dual citizenship (like Germany) will not prevent children of their proud mothers from having that precious citizenship just because the (umarried!) foreign father may have also happened to confer a different citizenship on the poor child without its innocent informed consent.

Directive 2004/38/EC may in fact be a very good option for you. It will not buy you a cup of coffee in Lithuania until you wife moves to another EU state. Hunt around for a nice place to get married and then consider move for a whle to Estonia or Latvia or Ireland or... . If you wife has worked (even part time) in her time outside of Lithuania, she can then bring you back to Lithuania on the basis of the Directive.

[snizenja]

The US consulate told me there was nothing I could do as a parent to remove my sons right to US citizenship and that it was in fact the right of any child born to an American....anywhere. True or not they issued a passport to him with very little fuss.

As my son is four months old he has been apparently overstaying in Lithuania for one month. There is a chance that my son may carry two passports but only illegally. For a child born with a Lithuania birth certificate if one parent is foreign, they require the passports (or official copies) of both parents in order to submit the application for his/her Lithuanian passport. They don't tell us they wont give him citizenship, they just say that it's illegal for him to have duel citizenship. We are are told the appropriate thing to do for him is apply for a residence card as an American.

If it is true that I have overstayed in the Schengen jurisdiction then I suppose I would have no rights anywhere else in the EU until we are married and that many would not marry us even if I was legal.

But right, that's very good advice. I should be looking for countries that will marry two foreigners even if one is illegal. Thanks for the insight.

[snizenja]

I'm sorry this question has been answered but I wonder if you would please indulge me once again with an answer:

Is it absolutely clear that I have overstayed in the Schengen jurisdiction? or is that up to the discretion of whatever officer I come across?

It is a fact that I have only been in a schengen territory for a little over two months. If the law reflected this, then we could move freely until late march. No more house arrest.

[snizenja]

that is self imposed house arrest of course...because any authority has the right to ask for my pass port.

[Christophe]

The US consulate told me there was nothing I could do as a parent to remove my sons right to US citizenship and that it was in fact the right of any child born to an American....anywhere. True or not they issued a passport to him with very little fuss.

The rules pertaining the US citizenship by descent (i.e. for children born outside the USA to an American citizen parent) are complicated, principally (though not only) because the rules keep being changed. However, we can (I imagine) assume here that the US consulate knows the rules that apply in your son's circumstance.

[Directive/2004/38/EC]

Since the child now has a US passport, it is now clearly a US citizen.

Words like "illegal" are very powerful and loaded. You have overstayed your entry clearance in one country. That country is now part of Schengen which slightly complicates the issue.

If you are both interested in getting married, then check the law in Estonia or Latvia. If you plan to move to another EU member state, it may be worth getting married in the country you want to live in.

Do you still have residence in Ireland?

Most important, I hope you are enjoying and thriving in your new family! And getting enough sleep!

[snizenja]

Thank you for the kind words. These don't come often for person in my situation on this topic.

Latvia will not may two foreigners, not sure about Estonia. The Irish police said I need only apply for a residence permit and seemed more concerned about my paying the 100 euro application fee than anything else but I didn't need one at the time.

Irish customs on the other hand, these are different people. I've been told to wait in the back of the line and questioned for 30 minutes on three different occasions because because my exits were undetermined. Then I was given two weeks to register with the police. But if they would marry two foreigners this could be a very strong option for us. Actually our only logical plan at the moment and I owe it all to your input and this forum. Wow, thanks a lot.

Do the Irish customs have cause to deny my entry because I have overstayed in Lithuania?

[Directive/2004/38/EC]

If you both want to get married, another option is to do it in the US.

What is/was your legal status in Ireland?

[snizenja]

I think I'm all clear in Ireland. But nervous. These Irish customs guys are tough. At least I know what to expect.

Apparently US immigration has received twice as many applications as this time last year so they tell us that we could wait up to eight months for a fiancee visa after we get the grueling paper work and documentation together. The wait is even longer for a marriage visa.

As anything could happen in nine+ months, our choices and decisions about what to do next are really being directed by immigration policies. It's hard to believe that so many people get past these hurtles.

[snizenja]

Sorry...I was on a tourist visa in Ireland around six months ago.

[Directive/2004/38/EC]

Apparently US immigration has received twice as many applications as this time last year so they tell us that we could wait up to eight months for a fiancee visa after we get the grueling paper work and documentation together. The wait is even longer for a marriage visa.

If you just want to get married in the US and then leave right away, can you not do it in the US on a visitor's visa?

[snizenja]

Good thinking. However, the US consulate in Vilnius said that she is a high risk of being a US overstayer an would not issue her a tourist visa.

Would an unregistered church issued marriage certificate make us eligible to move freely in Schengen Territory?

Someone answering the Lithuanian immigration offices phone suggested that because I am in the next three month period of overstaying that I should be allowed to legally reenter. If I pay a fine. But that's hard for me to believe. Why would I have a window of opportunity only ever other three months? it's not true is it?

[snizenja]

Am I not eligible to apply for a residence permit in any Schengen country that that offers one on the basis of a durable relationship?...even after March 21st?

[Directive/2004/38/EC]

What is the significance of March 21?

[snizenja]

That's the date I will have overstayed in Schengen territory without a doubt.

[Directive/2004/38/EC]

I have a few questions

Q1: Do you and your partner want to get married?
Q2: Where and when would you want to do it?

[snizenja]

A1: We could get married or not, neither one of us feels strongly about the institution of marriage.

A2: ASAP in the most convenient location: Vilnius, Lithuania.

We both feel a strong desire to find the best possible location to call home to raise our family. One option is to do this is the US but since that is not likely to happen for some time it would be great if we could consider possibilities in Europe.

I realize that it's difficulty to advise someone on immigration policy "somewhere in Europe" and we should we should do our homework and plan trips accordingly. With your help I have gained a better understanding of the way European immigration policy works and I am still working to gain a more precise general understanding of it. The basic questions I'm trying to answer are; Where can we reside legally together? and how do I become legal ASAP?