Swiss spouse visa question

[shelandpete]

We've been getting contradictory messages from Your Europe Advice and hoping experts here can clarify the situation and more broadly the confusion around the Directive of free movement.
I am a Chinese National married to a British national in Shanghai and has obtained the Indefinate leave to remain in the UK after the initial 2 year settlement visa. I have previously obtained various Schenghen Visas from different countries (Greece, Spain,Germany) without much trouble as an EU spouse,which means the visas were free of charge and issued quickly.
I recently lodged a visa to Switzerland for our upcoming trip as an EU spouse, but there have been delays and repeated requests to provide further documents such as Tavel Insurance and hotel bookings with my name on. Whilst this is not a problem as we have all the documents but this means it further delays the application process. So my husband wrote to the Consulate to express concerns but at the time we also wrote to Your Europe Advice to consult what our rights are in the EU/Schenghen area in the event the delay/rejection jeapadises our trip as Swiss is not an EU country albeit it's signed up to the Schengen Agreement.

Two days later here's the reply we got which really contradicts some of the early posts here..here's the reply. But the good news is that the Swiss consulate replied and apologised for the mistakes.

Dear xxx
Thank you for contacting Your Europe Advice.

The EU free movement rules only apply to those EU citizens (and their family members) who have actually exercised their EU Treaty rights. This means that they have resided and worked in an EU State “other than that of which they are a national” (Article 3 of the EU Free Movement Directive 2004/38).

As you are a British national residing in the UK, the EU free movement rules do not apply to you and your family members, unless you have on an earlier occasion lived and worked in another EU State.

Accordingly, to travel within the Schengen area, your Chinese wife is required to obtain an entry visa in accordance with EU Regulations 539/2001 and 810/2009. As the EU Free Movement Directive 2004/38 does not apply to you, your wife does not benefit from the right to obtain a visa free of charge and on the basis of an accelerated procedure.

To conclude, regrettably the EU free movement rules do not apply to you and your non-EU spouse. This is because you are a British national residing in the UK. Article 3 of the EU Free Movement Directive 2004/38 explicitly states that the beneficiaries of the Directive are “Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members”. Therefore, a British national and his non-EU spouse residing in the UK cannot benefit from the rules of the EU Free Movement Directive.

Consequently, as the EU Free Movement Directive does not apply to you and your wife, your wife does not benefit from Article 5 of the Directive which provides that entry visas for non-EU family members of EU citizens are to be issued “free of charge as soon as possible and on the basis of an accelerated procedure”.

For the sake of clarity, please see the EU Commission’s Guide on ‘Freedom to Move and Live in Europe: A Guide to Your Rights as an EU Citizen’, available at http://ec.europa.eu/justice/policies/ci ... nt_low.pdf. On page 6 of the Guide, it is explained that the free movement rules only apply to those EU citizens (and their family members) who have actually moved to or resided in an EU country other than that of which they are a national.

Regrettably the text on the Your Europe website is inaccurate in the sense that it fails to mention that the accelerated procedure and no-charge apply only to those non-EU family members who benefit from the EU free movement rights pursuant to the Free Movement Directive 2004/38. We have brought this inaccuracy to the attention of the European Commission, and hope that the text will be clarified shortly in this respect.

For more information about the EU Free Movement Directive 2004/38, please see http://europa.eu/legislation_summaries/ ... 152_en.htm.

For the text of EU Regulation 539/2001, please see http://eur-lex.europa.eu/LexUriServ/Lex ... 007:EN:PDF.

For the text of EU Regulation 810/2009, please see http://eur-lex.europa.eu/LexUriServ/Lex ... 058:EN:PDF.

We hope this answers your enquiry, and remain at your disposal should you require further information.

So here's the rather con