Directive/2004/38/EC

[darkviews]

Hi,

I've been searching this site before and mainly after our travel, and need help for next step. Me and my wife (married more than 5 years and she has leave to remain in UK) were traveling from London to Spain.

At airline's checking desk my wife denied boarding flight as she didn't have schengen visa, but we had our marriage certificate and her UK residency. As we all know Stupid don't know much about Directive/2004/38/EC, so they denied her entry.

Next day we checked in with British Airways (No problem), we didn't even had problem entering to Spain. Well the immigration officer toke his time and checked all our documents, but at the end we pass passport control with in 10 minuets.

I've know that airline prefer to refuse entry to flight and pay a little compensation to passengers rather getting fine from destination country.

Please advise if you know any EU Law Solicitor or where i have to submit my compliant. I'll inform everyone step by step so next time people know what to do.

Many thanks

[86ti]

The problem with your case is that formally a visa can be asked for. Since you mention the Directive I suggest to read Article 5(2). You were admitted to Portugal on basis of 5(4).

[darkviews]

Yes exactly, i know why we admitted to Portugal. But easyjet checking desk first said, my name needs to be on her leave to remain stamp and ignored our marriage certificate. Then when i complicated online to their customer care they said she needed EEA membership !!!! (This is not even lack of training, its lack of communication)

I just spoke to the 5th solicitor and they had no idea about this directive and repot what other four told me. Can i report this to SOLVIT? or its not their priority.

[MelC]

86ti,

irrespective of peoples opinions, and the discussions around which countries do or should treat their own nationals under directive 2004/38,

the directive states that it is for those who move to or reside in an EU state other than that of which they are a national.

Darkviews stated that he is british, his wife iranian, and that she has ILR.
this indicates that she entered the UK originally under national immigration rules.

I haven't seen anything that says the directive is "retrospective" ~ or that it applies to persons who entered an EU state under national immigration rules, of spouses.

So i am wondering if,such as darkviews cases, can the directive be relied upon?
or is it really up to member states to chose to accept a person, who can show the required documents to "prove" they are under community law?

I ask this question as I can see that anyone in darkviews situation, their spouse has ILR, could wish to enter another EU state, and some do accept ILR as the same as an EU family residence card, some may be accepted for entry some refused, so at some point do you see national immigration rules and community law becoming one? or that there will be differences depending upon which EU state one wishes to enter?

I do agree that entry in this case was under 5(4) not 5(2), but would the portugeuse authoritiies have been within their rights to refuse entry as darkviews wife was NOT travelling under community law but under UK immigration law

just thoughts.

[86ti]

If you understand the cited Articles then you should also understand that easyjet was right to ask for a visa because

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.

The Directive does apply, of course, and you were correctly admitted to another member state as it says but that does not imply that you can not be required to have a visa.

[86ti]

I do agree that entry in this case was under 5(4) not 5(2), but would the portugeuse authoritiies have been within their rights to refuse entry as darkviews wife was NOT travelling under community law but under UK immigration law

Why was she not? A journey from member state A to member state B is always under community law unless the EEA national is also a national of B and cannot derive treaty rights (typically from his/her stay in A).

[darkviews]

She didn't come to UK with spouses visa, as she was a student here and did enter UK with student visa, then i meet her and we married here. That is why my name IS NOT on here ILR stamp. So she shouln't come under national immigration rules, of spouses. Plus nobody asked us about this neither in Portugal nor in Italy (which we traveled a month before).

Update: Just spoke with 6th lawyer and he said it might come under Public Inquiry or Consumer Rights !!!!! Am i going the right way?

[MelC]

I do agree that entry in this case was under 5(4) not 5(2), but would the portugeuse authoritiies have been within their rights to refuse entry as darkviews wife was NOT travelling under community law but under UK immigration law

Why was she not? A journey from member state A to member state B is always under community law unless the EEA national is also a national of B and cannot derive treaty rights (typically from his/her stay in A).

That is part of my original question, as the metock ruling more or less means that it does not matter how a person came to be in a member state in the first place, thus, a person in the UK with ILR, that arrived for example as a spouse under UK national immigration law, wishing to go to France, with thier spouse for a holiday, are they looking at Schengen visa type c paid for, or schengen visa type c free under the directive, even though they did not originally enter the UK under the directive, and do not hold a residence card as an EU family member, and it for a holiday but as a visa national they would require a visa to enter france, 5(2), or if they do not obtain the visa can they rely on 5(4) ~ if the EU state does not recognise ILR as being an EU family residience card?

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.

from your previous post, it says "or, where appropriate, with antional law"
what I am asking is how far does that extend? you have stated that its always community law when a person travels from A to B.

thats a good enough answer for me! thanks!

[MelC]

She didn't come to UK with spouses visa, as she was a student here and did enter UK with student visa, then i meet her and we married here. That is why my name IS NOT on here ILR stamp. So she shouln't come under national immigration rules, of spouses. Plus nobody asked us about this neither in Portugal nor in Italy (which we traveled a month before).

Update: Just spoke with 6th lawyer and he said it might come under Public Inquiry or Consumer Rights !!!!! Am i going the right way?

my apologies, i made an incorrect assumption from your post.

I accept that she would not therefore have received ILR as your spouse.

what I was looking for was thoughts/opinions, as irrespective of spouse ILR, she is your your spouse now, I am looking at which countries just accept the directive "as a given" where the spouse is a foreign national and accompanying/joining the EU spouse in another EU state, whether or not that depends on them having and EU family member residience card, or if ILR will/is be accepted on an EU wide basis.
on saying that your wife was admitted to protugal under the directive, irrespective of ILR or EU family member residence card, or visa.

maybe you should ask Easyjet for clarifcation from them of their interpretation of the directive, as that might point you in the right direction of where to take your complaint?

[86ti]

Legally they may rely on 5(4) but practically that may turn into an "adventure". Actually, I am quite surprised that it worked out for the OP. An ILR sticker is not a residence card.

[MelC]

Legally they may rely on 5(4) but practically that may turn into an "adventure". Actually, I am quite surprised that it worked out for the OP. An ILR sticker is not a residence card.

this is the point huh? "legally" and what actually occurs!

something like my husbands "entry" visa to italy from a third country, saying "tourismo" and the ferry comapny want all the usuals that go with a tourist visa before they will allow us to book the ticket!!!!

and as you said, an ILR sticker is NOT a residence card!

[MelC]

She didn't come to UK with spouses visa, as she was a student here and did enter UK with student visa, then i meet her and we married here. That is why my name IS NOT on here ILR stamp. So she shouln't come under national immigration rules, of spouses. Plus nobody asked us about this neither in Portugal nor in Italy (which we traveled a month before).

Update: Just spoke with 6th lawyer and he said it might come under Public Inquiry or Consumer Rights !!!!! Am i going the right way?

IF it were me I would query it with "youreurope" and depending upon what they say, would then take it to solvit, if appropriate.

my personal opinion, for what its worth, is that your wife is a third country national not a third country family member, and that it may be hit and miss with different EU states as to who allows easy entry and who does not.
it may be well worth your time getting some clarification from your europe as to whether or not your wife needs to pay for the visa, which in reality she needs unless the EU state are recognising ILR as being EU residence cards.

which was my original question.

good luck!!

[acme4242]

darkviews,

I tried, (without luck so far) to find written instructions, or something that
could be used as evidence, to prove the Stupid are not following their
own instructions.

All I have is the Schengen Border guard handbook.
I didn't get any useful answer from Europe Advice/Signpost Service.
But maybe you will have better luck, as your have a concrete case
unlawful blocked EU freedom of movement.

http://www.immigrationboards.com/viewtopic.php?t=63423

Enquiry posted on
04/09/2010

Enquiry
79278:
Dear Signpost Service,
The carriers’ liability regime in EU law, which resulted in the introduction of extensive checking facilities belonging to carriers at airports as well as major ports of entry to the EU, occurred with the article 26 of the Schengen Accord. The provision that found its place in the EU asylum acquis after the adoption of the Amsterdam Treaty is as follows:

The carrier shall be obliged to take all necessary measures to ensure that an alien carried by air or sea is in possession of the travel documents required for entry into the territory of the Contracting Parties.

Now, my question is,
As Stupid staff seem completely unaware of the legal rights of EU citizens
and their family. And sometimes wrongly refuse travel to EU families without visa.
Is there any official instructions from the EU commission to the Stupid,
on this issue.

Can you please provide me a link to the instructions or send me the document.

Yours Faithfully
xxx

Reply
Dear xxx,

Thank you for your enquiry.

There are two Directives which attempt to ensure co-ordination in relation to the implementation of Article 26 of the Schengen Convention. These Directives are as follows:

a) Directive 2001/51 which harmonises the financial penalties imposed on carriers transporting into the territories of European Union (EU) countries non-EU nationals lacking the necessary admission documents
b) Directive 2004/82 which requires air carriers to collect and transmit passenger data to the authorities of the Member State of destination responsible for control. Non-compliance may lead to fines being imposed and even, in the case of serious infringement, confiscation of the means of transport or withdrawal of the operating licence.
For further information on free movement of persons in the EU, you may wish to browse the following website where you can also find copies of the Directives referred to above.

I trust that this information is of assistance to you.

Yours sincerely,

Your Europe Advice

Note: To post another enquiry, please visit the Signpost Service Web Site
http://ec.europa.eu/citizensrights/fron ... ost_en.cfm
or contact EUROPE DIRECT.
http://ec.europa.eu/europedirect/

[Obie]

I believe some of the posters would have mentioned already, that in any litigation, the Stupid will use Article 5(2) as their defence. Article 5(4) says before you are sent back at the border, the Immigration Officer should certify him/herself that you are not a family member as you claimed.

1. Firstly your wife is required to have obtained visa.

2. If she manage to get to the destination country without a visa, she cannot be automatically sent back, except if they cannot confirm she is a family member as claimed.

3. Article 5 (4) does not mean your spouse is entitled to travel without a visa.

Had she been in possession of a residence card of a family member who exercise a treaty rights in another memberstate, then that would be a different matter

[darkviews]

Thanks everyone, i just have a big issue here:

Obie said: 3. Article 5 (4) does not mean your spouse is entitled to travel without a visa.

But the fact that we travel at the end, isn't proof enough? As i mentioned before we travel to Italy a month before with British Airways, and didn't have any issue with same documents neither with airline nor with Italian officials. Also in this case Thomascook and Protégées officials did accept our documents as part this directive. So far two Stupid and two different EU officials have accept her without visa, with ILR, our marage certificate as she was traveling with me.

So i think esayjet issue was to understand IATA's guideline which they refereed to (what they said).

They don't have any training and only refer to IATA when it comes to question mark, and the problem is that, they don't even understand it. This is another example of it:

http://www.timesonline.co.uk/tol/travel ... 897061.ece
[/quote]

[86ti]

But the fact that we travel at the end, isn't proof enough?

Why would it? EasyJet didn't let you. Is that counter-proof?

The Directive is very clear on that and Obie has just reiterated it. The border police in Portugal and Italy acted correctly. The Stupid act on their own risk and can easily defend a denial of boarding (see above).

[acme4242]

So i think esayjet issue was to understand IATA's guideline which they refereed to (what they said).

They don't have any training and only refer to IATA when it comes to question mark, and the problem is that, they don't even understand it.

Do they use IATA Timatic, or something else ?

IATA Timatic is the industry standard used by Stupid and travel
agents to be compliant with border control rules and regulations.
Timatic delivers personalized information based on the passengers
destination, transit points, nationality, travel document, residence
country etc.

The Timatic Quick Reference Guide will assist you to make the correct
request for the specific information of every type of passenger.
Timatic can be used to provide passengers with this critical
information as part of the booking process, as well as during check-in
to ensure travelers have the correct travel documentation.

Delta Stupid allow customers access to Timatic.
http://www.delta.com/planning_reservati ... formation/

/ 18OCT10 / 2310 UTC



National Iran (Islamic Republic of) (IR)
Residence United Kingdom (Great Britain) (GB)
Destination Portugal (PT)


Portugal (PT)



Passport required.
- Passport and/or passport replacing documents must be valid
on arrival.

Visa required, except for Those, irrespective of nationality,

for a max. stay of 90 days, holding "family member" residence
permit issued by United Kingdom (Great Britain) to a family
member of an EEA national TIRGL/EEA or national of
Switzerland, provided travelling with or travelling to join
the EEA national or national of Switzerland.


Minors:
- Travel between Portugal and other Schengen Member States
TIRGL/SCHN For details, click here
- Foreign minors under 18 years of age
For details, click here
- Pupils For details, click here
Additional Information:

- Valid visas in full or expired passports or travel documents
are accepted, provided accompanied by the new passport or
travel document issued by the same authority.
- Visitors must have funds of at least EUR 74.82 plus EUR
39.90 per day for stay For details, click here
- This country is a Schengen Member State
Warning:
- Non-compliance with entry/transit requirements (including
forged documents) results in fines for transporting carrier

For details, click here


CHECK TINEWS/N1 - SOUTH AFRICA - TRANSIT VISA REQUIREMENT -
UPDATED INFORMATION



Timaticweb Version 1.3
18 October 2010

by the way, for the Croatian child, that easyjet refused,
Timatic says Visa required, except for A max. stay of 3 months:

reminds me of the little Britain sketch, computer says no..

[MelC]

I believe some of the posters would have mentioned already, that in any litigation, the Stupid will use Article 5(2) as their defence. Article 5(4) says before you are sent back at the border, the Immigration Officer should certify him/herself that you are not a family member as you claimed.

1. Firstly your wife is required to have obtained visa.

2. If she manage to get to the destination country without a visa, she cannot be automatically sent back, except if they cannot confirm she is a family member as claimed.

3. Article 5 (4) does not mean your spouse is entitled to travel without a visa.

Had she been in possession of a residence card of a family member who exercise a treaty rights in another memberstate, then that would be a different matter

I am not convinced, although I see the logic, that persons holding ILR are covered by the Directive ~
although in the light of Metock, in a broad sense maybe the ECJ would rule that way?

IF ILR (or whatever any other EU state refers to thier national immigration resident status as,) permits third country nationals who are a family member of an EU national, irrespective of when/how their ILR was obtained, residing in an EU state to take advantage of the Directive, then this leaves only persons who are NOT family members, irrespective of the fact that they may also have ILR to travel without paying for the Schengen visa, or third country nationals ouside of the EU who are not family members, which is not in question.
an example of what i am looking at,
in the future I will be a returning resident to the UK, my husband will hold an italian Residence card (we are under Directive 2004/38)
I have friends who their husbands have ILR in the UK, they have entered the UK under national Immigration rules.
If, we then as 2 couples wished to holdiay in france for example, my husband would be able to travel Visa free
but my freinds husband would need a visa, as he does not hold an EU family member residience card, would HE be entitiled to a c type Schengen visa free of charge as the family member of an EU citizen, or would he have the c type Schengen visa as a tourist and be required to fulfil its requirements?

Or is that going to depend on which member states accept ILR as the same as an EU residence card ~

[MelC]

acme4242 ~

I looked at the timatic info on delta's site, and in relationship to my husband ~
/ 19OCT10 / 0053 UTC
National Tunisia (TN) /Destination Italy (IT)

Italy (IT)


Passport required.
- Passports and/or passport replacing documents must be valid
on arrival.

Visa required.

Additional Information:
- Visitors may be refused entry either for public security,
tranquillity, order or For details, click here
- Valid visas in full or expired passports or travel documents
are accepted, provided accompanied by the new passport or
travel document issued by the same authority.
- Visitors can extend their length of stay by applying to the
local authorities.
- This country is a Schengen Member State
Warning:
- Non-compliance with entry/transit regulations will result in
fines between For details, click here

Warning:
- Non-compliance with entry/transit regulations will result in
fines between EUR 3,500.- and EUR 5,500.- per passenger and
deportation of the passenger to country of origin at
carrier's expense. In case of severe non-compliance
license/permission concerning landing rights can be
suspended or revoked.

the timatic system does not seem to allow for Accompaning/joining spouses of EU citizens which would obviously help in such cases?

also does anyone know of a similar system for ferry companies? or would they also use the timatic system, as it does state Stupid.

[MelC]

and answering my previous question using the timatic system ~

re my friends whose husbands hold ILR through national immigration ~

/ 19OCT10 / 0100 UTC
National Tunisia (TN)
Residence United Kingdom (Great Britain) (GB)
Destination Italy (IT)

Italy (IT)


Passport required.
- Passports and/or passport replacing documents must be valid
on arrival.

Visa required, except for Those, irrespective of nationality,
for a max. stay of 90 days, holding "family member" residence
permit issued by United Kingdom (Great Britain) to a family
member of an EEA national TIRGL/EEA or national of
Switzerland, provided travelling with or travelling to join
the EEA national or national of Switzerland;
Minors:
- Pupils For details, click here
Additional Information:
- Visitors may be refused entry either for public security,
tranquillity, order or For details, click here
- Valid visas in full or expired passports or travel documents
are accepted, provided accompanied by the new passport or
travel document issued by the same authority.
- Visitors can extend their length of stay by applying to the
local authorities.
- This country is a Schengen Member State
Warning:
- Non-compliance with entry/transit regulations will result in
fines between For details, click here

so as far as this system is concerned, and as this is what Stupid would be looking at ~ ILR would mean a payable schengen visa.

[acme4242]

the timatic system does not seem to allow for Accompaning/joining spouses of EU citizens which would obviously help in such cases?

The Timatic thing really really remind me of little Britain Computer says NO

As you say, when you are flying from outside the EU
there is nowhere to put in Spouse of EU citizen, accompanying
or joining.
This is important information concerning entry rights to EU states.

Oh, I see skyteam also have a similar Timatic interface.
http://www.skyteam.com/about/travelhelp/travelinfo.html

and here is somebody's random advice on timatic
http://www.travbuddy.com/Visa-Informati ... Free-v5225

On the other hand, airline check-in agents rely on TIMATIC to decide whether to accept you for a flight (in terms of visa considerations). So, if the embassy tells you that you don't need a visa ... be prepared to miss your flight if TIMATIC says that you do!!

Finally, carry a printout of the TIMATIC visa requirements ... it once saved my day when questioned by the authorities!

[darkviews]

so as far as this system is concerned, and as this is what Stupid would be looking at ~ ILR would mean a payable schengen visa.

Exactly, even Portuguese embassy said they will give her schengen visa for free but it takes two weeks (which we didn't have)

Easyjet did used IATA which did provide the same information:

"Visa required, except for Those, irrespective of nationality,

for a max. stay of 90 days, holding "family member" residence
permit issued by United Kingdom (Great Britain) to a family
member of an EEA national ..."

They couldn't translate her ILR to family member resident permit, as they kept asking why my name isn't printed on her ILR stamp? On top of the ILR says "Residence Permit" and we had our marriage certificate dated 5 year ago to prove she is a "Family Member", but they wanted both of these under the same document.

And they kept telling me: "we do this every day", if that is true people's lives has been ruined on daily bass by esayjet.

[86ti]

They couldn't translate her ILR to family member resident permit

Once again, ILR is not a residence card under EU law! Only a residence card documents ones right under the Directive and permits visa free travel provided that the family member travels with or joins the EEA national they derive their rights from (the relevant articles from the directive have been given and explained in this thread). The IATA database is wrong in calling it a 'residence permit'.

BTW, you guys are not the first here who mix those things up (has been discussed a dozen of times before). Understandable given that even the authorities of the member states can't get it right. And, eventually EU and national regulations are the law and not 'random' entries in a database of an industry body or the current practices of border guards, embassy staff, etc.

I won't comment in this thread anymore as it seems pointless to repeat myself over and over again.

[MelC]

The Timatic thing really really remind me of little Britain Computer says NO

As you say, when you are flying from outside the EU
there is nowhere to put in Spouse of EU citizen, accompanying
or joining.
This is important information concerning entry rights to EU states.

that was the first thing I said ~

"the computer says no"

First of all the italian embassy has no facility to put "family member" on the visa, which I beleive they ALL need to sort out, as it does distinguish them from Thrid country nationals.

as the visa states "tourismo" the Ferry company are insisting we book a return ticket, and accommodation and financial details ~

I have passed it back to SOLVIT italy and told them to deal with the ferry company, which is an italian company ~ and as I said I can't find anything like the timatic system for ferry companies maybe they use timatic?

and I accept that the third country might not be familiar with the directive, but im dealing directly with an italian (EU) company, I sailed out here a year ago with them!

[MelC]

They couldn't translate her ILR to family member resident permit

Once again, ILR is not a residence card under EU law! Only a residence card documents ones right under the Directive and permits visa free travel provided that the family member travels with or joins the EEA national they derive their rights from (the relevant articles from the directive have been given and explained in this thread). The IATA database is wrong in calling it a 'residence permit'.

BTW, you guys are not the first here who mix those things up (has been discussed a dozen of times before). Understandable given that even the authorities of the member states can't get it right. And, eventually EU and national regulations are the law and not 'random' entries in a database of an industry body or the current practices of border guards, embassy staff, etc.

I won't comment in this thread anymore as it seems pointless to repeat myself over and over again.

I get that feeling on another forum!

the fact that it says res perm, not res card i guess is as that was the name previously, which shows when timatic? was updated?

The EU really need to be pushing memebr states now, its their responsibility to ensure the free movement, and right now my free movement is seriously breached and prevented by italy, and yes i have formally complained ~ but don't have time to wait the 3 months for them to even answer the email!!!!

i am hoping that SOLVIT, who hate me already will come up trumps here, as they did with getting the visa in the first place!!!

I think the conclusion should be that if your spouse did not enter under the Directive, and does not have the paperwork of the directive you are at the mercy of each member state, and arguing about that is poitless unless every state changes thier version of ILR to family member which isn't going to happen as no movement occured originally to promt the directive, national law still stands in those cases.