Directive 2004/38/ec Help me please!

[Faithlessnl]

Dear user's,

Having some trouble with the so called directive 2004/38/ec. Need to know if i fall under this directive for my own situation.

i live in the netherlands and have never (lived) or (worked) outside my own country, i want to go to the phillipines and get my wife in to europe on booking a vacation for 90 days,to go to brussel together with me. Does this directive apply to me or not?

* never worked outside my own country

* never lived out side my own country

Some people say it does and others say not possible. you have to live or worked or study or be self suficient in any other country then your own to make use of this directive.

[gokulatti]

No, you are not considered as an EU citizen as far as directive is considered. Directive 2004/38 is for EU nationals only. The only way this could apply to you is if were to move to another member state say Belgium, and exercise your treaty rights as you mentioned. Then I believe after 6 months if you do move to Netherlands you could go through 'surinder singh route' to bring wife to Netherlands. However you and your wife could qualify for 2004/38 for say Belgium if you were to move your centre of life to Belgium by exercising your treaty rights but just not in your own country at the moment.

[Faithlessnl]

No, you are not considered as an EU citizen as far as directive is considered. Directive 2004/38 is for EU nationals only. The only way this could apply to you is if were to move to another member state say Belgium, and exercise your treaty rights as you mentioned. Then I believe after 6 months if you do move to Netherlands you could go through 'surinder singh route' to bring wife to Netherlands. However you and your wife could qualify for 2004/38 for say Belgium if you were to move your centre of life to Belgium by exercising your treaty rights but just not in your own country at the moment.

But i am going to the philippines to my wife and then from there on we move to belgium (other country then my own) right? now in this directive it clearly states (move to) what does that actualy mean?

you also say "centre of life " nowere in this directive i can read you actualy have to live there.

from the directive, article Article 6

Right of residence for up to three months
1. Union citizens shall have the right of residence on the territory of another Member State for aperiod of up to three months without any (conditions)
or any (formalities) other than the requirement to
hold a valid identity card or passport

for my wife,

2. The provisions of paragraph 1 shall also a
pply to family members in possession of a valid
passport who are not nationals of a Member St
ate, accompanying or joining the Union citizen.

so the way i read this i do fall under this directive, tho i am not 100% sure

[gokulatti]

Hi, I think maybe you didn't understand me properly, Yes you and your wife should be eligible under directive 2004/38 for BELGIUM. Please understand you and your wife only qualify for 3 months unconditional stay in Belgium. For more than 3 months you SHOULD be exercising treaty rights as in employed, self employed, living with sufficient funds etc. (which is what I meant by centre of life). I believe you want to bring in your wife to Netherlands after she has come to Belgium, in this case she will not qualify directly under directive 2004/38 but only through surinder singh route, for which authorities may expect atleast 6 months of stay together in an other member state (in your case Belgium).

[Faithlessnl]

Hi, I think maybe you didn't understand me properly, Yes you and your wife should be eligible under directive 2004/38 for BELGIUM. Please understand you and your wife only qualify for 3 months unconditional stay in Belgium. For more than 3 months you SHOULD be exercising treaty rights as in employed, self employed, living with sufficient funds etc. (which is what I meant by centre of life). I believe you want to bring in your wife to Netherlands after she has come to Belgium, in this case she will not qualify directly under directive 2004/38 but only through surinder singh route, for which authorities may expect atleast 6 months of stay together in an other member state (in your case Belgium).

Only want to get my wife to come for 3 monthes so if we apply for a entry visa to go to belgium first under the directive and we then arive in belgium, she then is allowed to stay for up to 90 days in eu zone. So then i could go with her to the netherlands right?

[Faithlessnl]

But when the belgium embassy in manila gives this c type entry visa to my wife, then when she arives in belgium she then can stay in all shengen country including my own country.

[gokulatti]

But when the belgium embassy in manila gives this c type entry visa to my wife, then when she arives in belgium she then can stay in all shengen country including my own country.

Yes that is correct, if she gets an schengen entry visa to belgium, technically she can stay anywhere in schengen zone for 90 days. You should also keep in mind after she comes to stay in netherlands, any subsequent residence permit application at ind WILL be treated under dutch law and not EU law.

[Faithlessnl]

i know that, in my case she just will come to my country for like 90 days. Because a normal tourist visa is hard for her to get with much more to proof and via this way everything is much faster. my wife only needs to proof to the belgium embassy she is (spouse of eu citizen) then flight ticked from us going to brussel.

what we will give

*marriage contract legalized from my wife. My document that this marriage is acknowledged by my country, in my municipality.

* her pasport

* Travel insurance covering her full 90 days.

* Flight ticked ofc

nothing els can be required by this directive right?

[gokulatti]

Check this out,
https://dofi.ibz.be/sites/dvzoe/EN/Appl ... 38_EN.aspx

[Faithlessnl]

The burden of proof

You must prove that you are a beneficiary of directive 2004/38/EC. When you lodge your visa application, you must therefore produce documents establishing:

a) your identity,
b) that you are accompanying or joining a citizen of the Union who is himself a beneficiary of the directive,
c) that you are a family member within the meaning of Article 40bis or 40ter of the law of 15 December 1980 on entry, stay, settlement and removal of foreign nationals.

In other words:

a) a valid national passport or a travel document serving as a passport,
b) proof of the tie of kinship, marriage or partnership considered to be equivalent to a marriage in Belgium or registered in accordance with a law,
c) as appropriate, proof that you are a descendant or an ascendant dependent upon a citizen of the Union, his spouse or his partner,
d) proof that you are accompanying or joining a citizen of the Union who is himself a beneficiary of the directive and thus, proof that the citizen of the Union is already residing in Belgium (residence permit for nationals of the EEA, application for an attestation of registration/annex 19, attestation of registration/annex 8, E card, document attesting to the permanence of his stay/annex 8bis or E+ card) or confirmation that he intends to travel there or stay there for more than 3 months (declaration of presence/annex 3ter, work contract, lease contract, registration in an organised, recognised or subsidised educational establishment, concrete plan shown during an interview, etc.) and a copy of his identity card or valid national passport.

under D: proof that the citizen of the Union is already residing in Belgium this is against the directive because the first 3 monthes there are no requirements or formalities, so why this belgium embassy make there own rules?

[gokulatti]

Or you could give this declaration as they ask, https://dofi.ibz.be/sites/dvzoe/FR/Docu ... _03_03.pdf
I don't know french so can't comment on what is actually written on it maybe you do.

[Faithlessnl]

Or you could give this declaration as they ask, https://dofi.ibz.be/sites/dvzoe/FR/Docu ... _03_03.pdf
I don't know french so can't comment on what is actually written on it maybe you do.

Dont need that, i will send my wife soon to the belgium embassy in manilla, i will make sure she will bring the directive with her and mark some key points. Also she will bring with her the handbook https://ec.europa.eu/home-affairs/sites ... 620_en.pdf because thats the way embassy work and follow there guidelines.

[Faithlessnl]

in part III of the book you can read, how they should apply this directive to the person in question

[gokulatti]

good luck. I hope it goes well

[Faithlessnl]

Will post a update asap on how everything went, thanks for your time sir