Post
by MoAbdi » Fri Apr 05, 2013 9:43 pm
Hi all,
I have finally had my shot at travelling with my wife and child.
To begin with, I should note that the German embassy refused to accept the application of a child passport for my daughter because they need the full passport for my wife before they accept the application. Again (perhabs not surprisingly) they do not accept the Immigration Status document of my wife (on which her residence card is placed) as a valid ID....thank you Home Office.
Hence, we attempted to travel without passport for both my wife and daughter. Since my daughter did not have any other form of photographic ID, I obtained a Citizencard for her which is recognised (in the UK only) as a valid photographic ID. To proof family ties we further carried our marriage certificate as well as the (long) birth certificate of my daughter (which showed the name of both parents), as well as a host of utility bills and NHS letters for my daughter. We relied on Article 5(4) of EU Directive 2004/38/EC which wiggsy already quoted above to enable us to travel.
Initially we tried flying with KLM via Amsterdam, but the airline refused carriage for my daughter, even after I showed them the relevant EU directives as well as birth certificate and other documents, establishing me and my wife as her parents. I asked them to call the relevant authorities to confirm, but they refused and they also refused to issue me a refusal of boarding letter stating the reasons for denial. The best they could do was to contact a UK immigration officer who told me that it was up to the airline and that she was only acting as an adviser. Anyways, she only confirmed what I already knew (that the Citizencard was not a valid travel document for EU wide travel). She initially did not seem familiar with Article 5(4) of Directive 2004/38/EC and said that passport free travel is only possible within the Schengen area. After I clarified that the Directive was EU wide (including the UK) and also referred to the relevant section in the UKBA Border Force Operations Manual, she said that the meaning of the directive only applies in cases where somebody for example looses his passport at the airport during travel??? I wondered a bit how someone would prove otherwise that he is covered by the right of free movement if he looses his passport at the airport. I for once do not carry any photographic ID which proves my nationality other than my Passport or German ID card with me when I travel.
We then decided to travel directly to Belgium with Eurostar, in order to obtain a Somali Passport for my wife and try and sort out this mess. This time I was more prepared and not only had a copy of the above EU Directive, but also had a copy of the "Schengen Handbook", the UK Border Force Operations Manual (for my planned return journey), the operative part of the ECJ MRAX ruling (for my wife) and the ECJ Salah Oulane ruling (regarding requesting passport to the exclusion of all other means of proof of ID for my daughter). When we came across the French border at St. Pancras. The first officer asked for our passports and when I showed him the documents that I had and briefly explained the reasons for not having passports for my wife and daughter he took us to the office of the senior border officer. On our way he asked further questions regarding our journey and then told the senior officer what we had told him. The senior officer then said that we could not cross the border with these documents (except of course me who had a full German passport). He was very nice in general and informed me that he must refuse entry into France for both my daughter and (more surprisingly) my wife on the grounds of not having a valid travel document. I attempted to show him the relevant section of the EU directive but before reading he said that he is very familiar with the directives. I then asked him as to the meaning of "to corroborate or prove by other means that they are covered by the right of free movement and residence" and he replied that this is only related for when partners do not have visas. I pointed out that the directive also covers in cases of travel documents as clearly stated in the text but he kept on talking about the fact that my wife's residence card only proves that she does not need a visa when travelling within the EU and told us that it was easy to forge documents such as Birth/Marriage certificates, Citenzcards and Residence Cards and hence we could not cross the border with those.
Before my journey I have contacted the "Your Europe Advice" who confirmed that my wife could travel with her residence card as long as I accompanied her, even without a passport. I offered to show this letter, along with other documents proving our family ties (i.e. joint utility/council tax bills as well as bank statements) but he told me (perhaps because he did not speak very good English it sounds offensive) that it did not matter what I showed him as he knew the law and already made up his mind. This rendered attempting to show him the sections in the Schengen Handbook as well as the ECJ Case laws pointless.
When handing me the Refusal of Entry letters for my wife and daughter, he told me that with respect to my daughter, she could not cross the border without a passport even if I travel with her and carry documentary evidence as it was for her own protection to avoid that she is not abducted and carried illegally across the border. With respect to my wife he told me that she could also not travel with her Immigration Status Document with her residence card for family members of EEA nationals even when I accompany her and we have our marriage certificate and other documents to prove conjugal ties. This was again due to our own protection as the Police in Belgium could arrest us if they found her not carrying a passport, which I thought was strange.
The whole situation is extremely irritating and I feel like our free movement rights in this case are more theoretical than practical. I found it also quite interesting that my wife and daughter were both refused entry on the grounds of not carrying valid travel documents. I am no legal expert, but I believe that this clearly violated our right to free movement within the EU and in particular:
- Article 5(4) of Directive 2004/38/EC
- "Schengen Handbook" section 3.1.2 and 6.3.2 as well as 6.3 (which states that "Persons enjoying the community right of may only be refused entry on grounds of public policy or public security, i.e. when their personal conduct represents a genuine, immediate, and sufficiently serious threat affecting one of the fundamental interests of society"...I quite doubt that my one year old daughter is such a threat!
- Likewise, "Schengen Handbook" sections 6.8 states that "If a person enjoying the Community right of free movement is refused entry, the border guard must always provide the person with a written decision. The decision must be drafted in such a way that the person concerned is able to comprehend its content and the implications. The decision must also include precise and full indication of the public policy or public security grounds on which the decision taken is based, unless this is contrary to the interests of State security. The decision must also specify the court or administrative authority with which the person concerned may lodge an appeal and the time limit for the appeal." However, all that our refusal letters state is that my wife and daughter were refused on the grounds of not carrying a valid travel document and makes no mention of any public security or public policy on which the decision was based. Interestingly though, the letter of refusal for my daughter states that she was accompanied by (me) her farther and carries my birth date and passport details (At least he did not seriously believe that she was not my daughter and I wanted to abduct her).
- ECJ Case C-459/99 (MRAX vs Kingdom of Beligium) which states that "...a Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health..." However, French authorities did just that when refusing entry for my wife on grounds of not having a valid identity card or passport.
- ECJ Case C-215/03 (Salah Oulane vs Minister voor Vreemdelingenzaken en Integratie) which states that "Requirement for nationals of other Member States to provide an identity card or a passport in order to prove their nationality to the exclusion of all other means of proof – Not permitted"
I would like to hear your opinion on this case as well as how to effectively complain to the relevant authorities and enforce my right of free movement.
Thanks.
