Definition of an dependant relative for EU law purposes

[tebee]

Is there a definitive definition of what the criteria are to be a dependant relative anywhere?

I have a step-son who has recently turned 21 and is a full time Medical student at University.

We have just applied for sort term Schengen visas for my wife and him to come to France next month from TLS, the visa agent the French embassy in Bangkok as relatives of an EU citizen( my wife is actually coming here to pick up her long term carte du sejour) They have accepted my wife's but refused his due to his age - I have pointed out that he is still our dependent and should be covered, but they are adamant that anyone over 21 is not. They are insisting he must complete the normal visitors process which involves much more paperwork and expense.

I'm in the process of of writing complaints to the French embassy and to Solvit but would like to know if there is an official definition somewhere I can refer to.

[EUsmileWEallsmile]

As you are probably aware, the directive applies to dependent descendants over 21. I am not sure if you are asking for the definition of dependent? It would appear that VFS just dismissed the application due to age.

[tebee]

Its TLS in Thailand https://www.tlscontact.com/th2fr

Yes, I think they were just insisting than anyone over 21 is not covered.


I would think any reasonable person would accept a 21 year old full time medical student as a dependent, but then not all people who work in visa application centers seem to be reasonable people so I was wondering if there was a definition written somewhere that we could quote to them. I'm also wondering what documentation would be needed to back up his status.

It's gone a little further now, I was suspicious when they said they were returning the passport within three days of us making the application as they had not got all the paperwork the would have needed for a normal short visit visa.

We have now got his passport returned with a visa refusal stamped in it , so I'm going to have to escalate my complaint to Solvit and will email the French embassy in Bangkok and TlS pointing out this is wrong.

Anything else you could suggest I do?

[EUsmileWEallsmile]

TLS are wrong because the directive clearly states that dependent children over 21 qualify (see beneficiaries). The burden of proof of dependency would be on the applicant.

[tebee]

I sent a message to TLS pointing out he is covered under directive 2004/38/EC Article 2 section 2 subsection c where it defines a family member as including” the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner"

This was their reply, which does indeed confirm they are totally ignoring the possibility of someone being over 21 and still a dependant even though they list it in their own list of possible criteria !

Dear Sir or Madam,

We would like to inform you that for the visa type Visiting a relative who is an E.U citizen or E.U. citizen's spouse, relatives include: a spouse, direct descendant under 21 years old, financially dependent descendant, and direct ascendants who are financially dependent of a EU citizen. It means,Child (under 21 years old )of Eu citizen or Spouse of EU Citizen. And Ascendant of Eu Citizen (Mother, Father) of EU citizen or Spouse of EU citizen. If your son (direct descendant) is over 21 years old, the visa type should be "Family visit", he is not anymore Descendant of Spouse of Eu citizen.

Best regards,
TLSContact Visas Center

[EUsmileWEallsmile]

If your son (direct descendant) is over 21 years old, the visa type should be "Family visit", he is not anymore Descendant of Spouse of Eu citizen.

I take it that this is a typo on their part (but maybe not).

[tebee]

I presume there should be a "considered as" in there somewhere, though the way the they treat their "customers" they might very well prefer you dead.

At the moment I've emailed the embassy to see if they accept this is wrong, I'll see what they say.

[tebee]

Reply from the Embassy

Dear Sir,

we regret to have to inform you that the information given you by TLS is correct. As the "Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States /* COM/2009/0313 final */" mentions it (...) a mere undertaking from the EU citizen to support the family member concerned is not sufficient in itself to establish the existence of dependence." Therefore TLS treated the application of your step-son correctly when it told you that he was no longer considered a family member.

You may lodge an appeal against the decision to refuse a visa with the Commission des Recours contre les Décisions de Refus de Visa d'entrée en France, BP 83.609, 44036 - Nantes CEDEX 1, within two months from the date of this notification.

Best regards,


--
Service des visas/ Visas section
Ambassade de France à Bangkok/ French Embassy in Bangkok

[EUsmileWEallsmile]

At least you appear to be getting somewhere. The onus will be on the applicant to evidence dependency.

[tebee]

This is indeed the problem we now have.

I replied to the Embassy -

Indeed and my wife had brought a copy of my Stepson's university card to show he was at university and therefore not working and able to support himself.

If this is not acceptable proof of his dependant status could you please provide me with a list of documents that are ?

My point was that TLS and the list they provided do not appear to accept the possibility that a dependant may, in fact, be over 21. if so, this is clearly in contravention of Directive 2004/38/EC. I would also like to point out that as my family member he has the right to have every facility to obtain the necessary visas.

My points with the last paragraph were to point out that according to TLS there was no possibility that anyone over 21 could be covered by the directive, indeed they refused to even look the paperwork say he was a student. The other point was that as we were applying as EU family even if we had the wrong paper work they should have helped us to provide what was necessary ( telling us what was required would have been a great help) rather than just rejecting the application. Of course if they did wrongly assume that all people over 21 were ineligible then they would not need to do this.

I received this in reply from the Embassy

your step-son only put a letter from you letting us know that you will be responsible for all the expenses during his trip in Europe. A copy of an university card is not enough either. We advise you for the next application to show that his mother send him money every month (since he has turned 21) in order to pay his rent, food, transportation, etc

To which I have replied and not yet received an answer

He lives with his mother, so she does not send him money each month, just gives cash as he needs it - so what do you suggest in this situation, which must be quite common?

[EUsmileWEallsmile]

It would be well worth your while reading the guidance that the French embassy quote. It has a section on dependency.

http://eur-lex.europa.eu/LexUriServ/Lex ... FIN:EN:PDF

[tebee]

Yes have been reading it - SOLVIT in the form of your Europe Advice, had already given me a link to http://eur-lex.europa.eu/LexUriServ/Lex ... 313:EN:NOT

which I think is the same document in another form.

[tebee]

Just to bring this up to date I have been chasing the embassy for a reply and finally got one

The application of your stepson will be considering as a Family Member of EU Citizen, if he presents in his new file, a letter from you, confirming that
- You are not a student in France
-You are able to assume all expense for all needs for your stepson, including a Social Security cover.

This is pretty much what I provided the first time and they rejected !

My wife is going to try applying again tomorrow with a copy of this email in hand and I will let you know how we get on.

I'm a little puzzled why I have to declare I'm not a student in France a I thought students also had the right to bring in dependent family members ?

I'm also not 100% sure what Social security cover they are referring to - he has travel insurance, though I though they were not supposed to ask about that and if and when he does decided to stay long term in France I thought he would be covered by my contributions as a self employed person.

[Directive/2004/38/EC]

Good for you! You should be proud of what you have done.

Students have less ability to bring family members, so that is likely source of their desire.

[tebee]

Well she went to TLS and they accepted the application as family of EU citizen this time. Still refused to refund the charge for the first application or accept they treated it wrongly, even though all the paperwork was the same this time except I have now said I am not a student.

Think I will still continue our claim with Solvit as it it's only 60 euros but it's the principle and he got an unjustified visa refusal stamp in his passport.

Now the next problem is he has missed the French course we were going to put him on, not sure now what to do now, but will start another thread for that question

[tebee]

Well to continue this minor saga.

Solvit refused to continue to assist, once I said I had submitted another application. They say the will only help with current problems, not past ones.

He now has a multi entry Schengen EU family visa, but only for 15 days and only from 1st March to 1st April, unlike his mother who has 90 days in the next 6 months.

But - on the page opposite the visa there is a warning which states "in addition to a valid passport with visa every foreigner, when entering france should be in a position to produce the following documents :"

The list includes:

Motive of stay in France, in this case - Attestation d'accueil
Means of living
return ticket


None of this should apply to him, and he won't have the first one.

Is this something we should complain to Solvit about ?

[EUsmileWEallsmile]

Well to continue this minor saga.

Solvit refused to continue to assist, once I said I had submitted another application. They say the will only help with current problems, not past ones.

He now has a multi entry Schengen EU family visa, but only for 15 days and only from 1st March to 1st April, unlike his mother who has 90 days in the next 6 months.

But - on the page opposite the visa there is a warning which states "in addition to a valid passport with visa every foreigner, when entering france should be in a position to produce the following documents :"

The list includes:

Motive of stay in France, in this case - Attestation d'accueil
Means of living
return ticket


None of this should apply to him, and he won't have the first one.

Is this something we should complain to Solvit about ?

Is all this in the passport or was there an accompanying leaflet perhaps?

Does the 15-day visa cause you any problems or is it in line with what you expected?

[tebee]

It's stuck in the passport on the page opposite the visa, which is why I am worried they may ask for some of those things when he arrives. Most of them we have like money and a return ticket, but the attestation we don't.



I would have preferred 90 days as usual , but the timing will cover the trip we had planned, Only thing is I'm not now entirely confident for him to come. If I was with them I'm sure I could convince them that he did not need the extra paperwork, but I'm not sure his mother will be able to do that.

Shame we already bought the tickets, as it's only his mother who needs to come, we just thought it would be nice for him to accompany her on the trip.

[EUsmileWEallsmile]

I'm very surprised to see such a sticker, but it looks like a standard one warning the typical bearer what they might encounter at a border.

Most importantly, the visa sticker mentions "familie UE", which renders the generic advice redundant.

[Directive/2004/38/EC]

Where will the EU citizen be during the whole trip?

[tebee]

I - for the EU citizen in indeed myself, will be in France, they are coming to visit me and complete on a house we are buying.

If I was travelling with them I would feel much more confident, I'll be going to the airport to meet them, but they will still be the wrong side of immigration if there is trouble.

I agree it looks like a standard sticker, but I still don't feel it should be there and have visions of someone asking for all these things when he comes through even though the visa type is "familie UE".

[Directive/2004/38/EC]

The law is very clear. They can either travel with your or join you.

If there is any problem, they just need to repeat to each person they talk with: "I am the family member of an EU citizen. He is here at the airport. We are carrying proof of the relationship, as required by law."

If there is any problem they should ask for a supervisor. Repeat the story again. And write down the names of each person.

I personally would remove the paper thing from the passport. It is not relevant to the visa and can only confuse the issue.

http://eumovement.wordpress.com/2010/08 ... to-travel/ is a review of the law behind their right of entry. It applies equally when somebody has NO visa as when they have what somebody claims is the "wrong" visa.

[EUsmileWEallsmile]

I would not be inclined to interfere with the passport in case of damage. It might draw more attention to the document than detract from it.