UK Entry under the provisions of EC Directive 2004/38

[thetoad]

Hi,
I'm very proud to have married a Ukrainian girl I met in Poland. Now we've come to the horrible business of trying to obtain a visa to enter the EU and ultimately enter the UK.

During my research I'm stumbled over the 2004/38 directive which seems to clearly state that my wife must be permitted entry to all EU member states and granted an entry visa with little more than our passports and marriage certificate. However, it seems that most states totally ignore this directive and implement all sorts of firey hoops to jump through. Poland demand that I must register as a Polish resident and then get a formal invitation from the county council. The UK requirement is somewhat worse including a 600quid charge and all sort of extras.

Has anybody entered the EU or UK successfully under the 2004/38 directive? How did you do it? What did you need to do to remain in the country once you were over the border?

regards

Tony

[Obie]

Congratulations Tony on finding your soul mate, and other half. You have found a good thing indeed.

In regards to your query, can i just ask what your nationality is, and in which capacity you have been living in Poland, ie (how have you been exercising treaty rights).

You can use the rules you mentioned to bring your wife to the UK free of charge, provided you meet the set conditions.

[thetoad]

Hi,

I am British and was living in Poland but was not registered. As we were nto married at that time we cannot be regarded as having exercised treaty rights.

Our problem at this stage is simply entering the EU. Poland has already set unreasonable requirement on us to obtain a visa to return there which we were going to do in order to implement the 'singh' ruling to finally settle in the UK.

But, having looked at this directive 2004/38 it seems that the UK requirements are totally illegal and they should simply let us in with passports and a marriage certificate. But maybe the EU guidance leaflet on this over simplifies it and there are loopholes or 'provisions' that the UK government can exploit.

I have emailed the UK visa agency in Ukraine but if their previous responses are anything to go by, I doubt I'll receive an intelligent response.

regards

Tony

[Obie]

My question is have you been a self-employed person, employed or student in Poland. It doesn't matter whether or not you were exercising a treaty rights before or after you got married.

You can also contact SOLVIT along the way.

Article 5
Right of entry
1. Without prejudice to the provisions on travel documents
applicable to national border controls, Member States shall
grant Union citizens leave to enter their territory with a valid
identity card or passport and shall grant family members who
are not nationals of a Member State leave to enter their territory
with a valid passport.
No entry visa or equivalent formality may be imposed on
Union citizens.
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. The host Member State shall not place an entry or exit
stamp in the passport of family members who are not nationals
of a Member State provided that they present the residence
card provided for in Article 10.
4. Where a Union citizen, or a family member who is not a
national of a Member State, does not have the necessary travel
documents or, if required, the necessary visas, the Member
State concerned shall, before turning them back, give such
persons every reasonable opportunity to obtain the necessary
documents or have them brought to them within a reasonable
period of time or to corroborate or prove by other means that
they are covered by the right of free movement and residence.
5. The Member State may require the person concerned to
report his/her presence within its territory within a reasonable
and non-discriminatory period of time. Failure to comply with
this requirement may make the person concerned liable to
proportionate and non-discriminatory sanctions.

[thetoad]

Hi,

Obie, thanks once again for your replies.

I was working in Poland on a strange "contract for a specific purpose". I wasn't registered as a resident or for tax but I can prove that I was finanacially active. I understood for the family permit that I would need to exercise my rights with my wife living legally with me in Poland.

I have already contacted SOLVIT regarding the Polish stance and have asked their advice regarding the UK entry requirements. But, surely if it was as simple as talking to them, the UK spouse visa would have already been scrapped, or do the UK Border Agency simply not want to point out the 'easy way'?

If this directive was true then I suspect that lots of people would have taken their spouse to the UK under this provision and there would not be so many people asking for visa advice in these forums.

thanks again

Tony

[Obie]

The directive is true indeed, but sometimes it seems like it isn't. Myself and 3 of my other non-EU family members are living in Ireland under the directive.

In regards to the UK and other Schengen states, you have to persevere and be assertive in order for your rights to be upheld. They request several documents which are unnecessary and uncalled for.

If you were in Europe, it is much easier to obtain the visa. They try to make it more difficult for people outside Europe.

The spousal Visa is something totally different. It is granted under national law, to spouses of British national and Settled persons, who have never lived and exercise treaty rights outside theUK.


Remember, if you get to a border with your wife, even without a visa, they have no right to send you back.

Get to the Polish border with your wife, and they will have no alternative but to allow you in.

[thetoad]

The spousal Visa is something totally different. It is granted under law, to spouse of British national and Settled persons, who have never lived and exercise treaty rights in the UK.

Remember, if you get to a border with your wife, even without a visa, they have no right to send you back.

Get to the Polish border with your wife, and they will have no alternative but to allow you in.

I'm not sure I fully understand the spouse visa part. I am a British national so can they say she needs this? hmmm, talk about confusing.

Regarding the border, I did read about this but I should imagine the border guards will make this as difficult as possible. Has anybody actualy tried this and lived to tell the tale? Would it work with the UK too? I take it I'd need to have the directive printed in Polish along with any guidance literature.

My wife is a tough cookie, you should see the way she handles the Ukraine bribe-hungry border guards and Police, I'm sure she'll love the challenge.

thanks again

T

[Mr Rusty]

The UK's implementation of the 2004 Directive is set out in the EEA (Immigration) Regulations 2006:-

http://www.ind.homeoffice.gov.uk/siteco ... iew=Binary

You seem to think that because you married a Ukrainian in Poland she should not have to get a visa to travel either to Poland or the UK. Unfortunately whatever your interpretation of European Law, she would almost certainly be denied boarding by any ferry, train or airline coming to the UK, because they would not take the risk of incurring a Carrier's Liability penalty.
I don't know whether you will be successful in making a Surinder Singh application from Ukraine, I would be most interested to hear how it turns out. As Obie has indicated, you will need pretty specific evidence of how you exercised your treaty rights in Poland and that she was with you while you were doing it. If you only got married after you left Poland, you might have an uphill task.
But it's always open to her to apply for a spouse visa under UK Immigration Rules. There are more hoops to jump through, and as you already appear to have discovered, this would cost you.
EEA Law and national immigration law are 2 separate entities, in case you hadn't realised.

[thetoad]

T There are more hoops to jump through, and as you already appear to have discovered, this would cost you.
EEA Law and national immigration law are 2 separate entities, in case you hadn't realised.

oh yes, we noticed these. We actualy married here in Ukraine and need to get back into the EU.

As for the EEA law and national law, I imagined that the EEA law was supposed to be implemented into national law, afterall, isn't that the point of the EEA?

To cover your first point, yes, I believe that as I've married a Ukrainian she is entitled to join me in the EU. As the directive states: "Your family members, irrespective of their nationality, have the
right to accompany or join you in a Member State other than that of
your nationality."

and also

"The right of entry of your third country family members is derived
from their family ties with you, a Union citizen. All the Member
State consular officials can ask for is their passport and a
document establishing their family ties with you, such as
marriage or birth certificate and proof of dependence, where
applicable. Your family members cannot be asked to present
documents such as travel tickets, employment certificate, pay slips,
bank statements, proof of accommodation and means of
subsistence or a medical certificate."

If the national law can disregard this directive, then what is the point of the directive?

t

Source of quotes: "Right of Union citizens and their family
members to move and reside freely
within the Union - Guide on how to get the best out of Directive
2004/38/EC" issued by Directorate - General Justice, Freedom and Security - European Commission

[Obie]

If member states implement Laws so perfectly and as required, i don't think there will be need for a National Court or a European court. The reason we have them, is to ensure your rights are upheld, if member states try to violate them.

The UK and Poland have signed up to the laws in question, and it is your duty to make them abide by it in it its entirety and in your favour.

The border issue is 100 percent accurate. They will not refuse her entry and Poland has a land border with the Ukraine.

However make sure that, you use that as a last resort, if all the other measures failed.

I entered Ireland without a visa under the rules, with my EEA family member and i was not denied entry. I was delayed and checked thoroughly, but eventually allowed in.

Here is the directive in Polish.

You are supposed to be allowed entry for an initial 3 month without any formalities, after which, you will need to be exercising a treaty right in order for her to qualify for a resident card.

[Mr Rusty]

Yes, the European Law is incorporated in UK law by the the Regulations shown in the link that I posted, and those who are suitably qualified may choose to apply under those regs rather than the UK Immigration Rules.

The Uk's interpretation of the passage that you quote is that if someone claiming to be an EEA Family Member arrives at the UK Border, the IO can not turn him/her away without giving an opportunity to demonstrate the claim to be such a person. Only Poland can speak for their interpretation, but at the moment your quarrel appears to be more with them than the UK. I recall another forum where a Far-Eastern national studying in Russia got a visit visa for Poland, had a hotel booking and funds and they turned him back at the Polish border on the grounds that he had made no arrangements for his stay! (he subsequently complained and got an acknowledgement that the refusal was in error). So they do seem to be a law unto themselves.

[thetoad]

The Uk's interpretation of the passage that you quote is that if someone claiming to be an EEA Family Member arrives at the UK Border, the IO can not turn him/her away without giving an opportunity to demonstrate the claim to be such a person.

So, does this mean if we turn up at the UK border with passports and proof that we're married they are likely to let us in? I've read that under the Singh ruling we must first prove that we have lived together in another member state - that will take time. Then we must apply for a permit which can take even longer. I like the option of just arriving in the UK and arguing our case with the border guards under EEA law and pray.

Also, in some places I read, the UK border guards will still also try to check if we have somewhere to live in England and have enough money to live on. Under the directive, this is also illegal.

My big gripe is that by EU law, a citizen of one country must not be treated differently to one of a another country. However, a member of another EEA state, e.g. a Frenchman, could marry a Russian girl and take her immediately to the UK, but, an Englishman cannot. Surely this is against my rights to the same treatment?

We're at a loss as to what to do. We're make our demands at the Polish consulate to try and get the visa and get into Poland. At the time time we'll make noises at the visa application centre in Kiev and try to argue our case.

We did live together in Poland and I did work, but this was before we were married and we have no documentary proof. Like how do I prove in documents that I gave up my flat and slept in her flat for 2 months?

[Rozen]

[ e.g. a Frenchman, could marry a Russian girl and take her immediately to the UK, but, an Englishman cannot. Surely this is against my rights to the same treatment?

By the same token, an Englishman could marry a Russian girl and immediately take her to France, but a Frenchman cannot! So it works both ways! It is not a directive that is biased against UK citizens only.

[thetoad]

So it works both ways! It is not a directive that is biased against UK citizens only.

I see, so it's a pain in the proverbial for many people and most certainly not in the spirit of the directive to give the right to free movement for EEA nationals and their family.

As I said, we'll try the official channels first then try just turning up at the borders and stating our case. Looks like the first step is to get inside the EU then argue it from there. We'll go to the Polish consulate first and make them see that they are breaking the law - we already have SOLVIT on that particular issue.

[Rozen]

As I said, we'll try the official channels first then try just turning up at the borders and stating our case. Looks like the first step is to get inside the EU then argue it from there. We'll go to the Polish consulate first and make them see that they are breaking the law - we already have SOLVIT on that particular issue.

Wish you and your lovely wife all the best!

[thetoad]

A few additional questions on the Singh ruling... I've sent these questions to the UK visa office in poland but i wont hold my breathe in receiving an informative reply.

Dear Sirs,


1. How long must we live together in Poland prior to applying for the EEA permit?

2. Does time living together in Poland before marriage count towards this?

3. We have no documentary evidence to prove that we lived in the same flat – what is the requirement? (It's not like we write to each other to say we're living in the same room and we did not need written permission from the landlady)

4. Must either of us hold a Polish residency permit? At this time we believe that we do hold a permit.

5. We understand that being a job seeker in Poland is enough to qualify for having exercised treaty rights – please can you confirm this. What documentary evidence is required of my job seeking, employment of self-employment? For example, would a statement from my Polish bank account showing deposits suffice for this?

6. Under the EU directive we are not required to provide documents beyond that of identity and proof of marriage, neither are we required to give details of where we will live in the UK or how we will sustain ourselves. Please can you advise if you will be asking for such information and what documentary evidence is required?

bascially i'm thinking of going to poland, looking for a job (I do have evidence of that already) and then giving up looking and returning to the UK. According to the UK's own border guidelines, being a jobseeker in Poland is sufficient to have exercised my rights.

Incidentally my father is seriously ill in hospital which I will submit as a good reason for going there quicker and exercising my rights for a shorter time.

I look forward to the days when a couple of are genuinely in love and have married can live together in either of their countries.

thanks again

Tony