denied entry to Poland

[RamiBenHmida85]

Hello, I hope you can help me with some advice please.

I am a non EU citizen ( Libya ) who currently resides and works full time in the UK as a family member of a EU citizen ( unmarried partner ) and I hold an EU residence card which allows me to travel across Schengen countries. in fact, I have used this card previously along side my passport to enter countries like Italy, Spain and Malta multiple times without any problems.

Yesterday I was forced to return from Poland. My girlfriend and I were going to spend the weekend in Warsaw as a birthday present. The border officer kept constantly asking for our marriage certificate despite that we tried explaining the fact that I was granted this card by the EU as an unmarried partner of an EU citizen and that I`ve used this successfully in the recent past. This was completely ignored and they took all my documents (passport & EU card) and kept me waiting for 8 hours then came back with a ticket to return back to London saying that they do not accept this card and I have to be married to an EU citizen to be able to enter the country. This was frustrating because I did some research while I was waiting and I showed them that Poland is on the list of countries I am allowed to visit using this card.

I work full time as a doctor in the UK and had no intentions to remain in Poland. We just went for a Holiday for 2 nights !!!!! We showed the return ticket, The hotel booking but there was no way they would allow any conversation. I was literally treated as an illegal refugee being escorted by police at all times and also I was scanned and searched for no reason. The flight back was delayed because the Captain insisted that he gets a written letter showing the reason they denied my entry, I got this letter in Polish with me now. Yesterday was a nightmare for both of us. What do I do? How do i escalate this and get compensation for my financial losses? What do I do to avoid this happening in the future?

Thank you, Your advice will be much appreciated

[mgb]

I think you need a polish lawyer for compensation of your financial losses.
Legal basis is schengen borders code article 6 section 1b and article 2 section 16.
http://eur-lex.europa.eu/legal-content/ ... 32016R0399

In your situation you fulfilled the other preconditions from article 6 anyway and don't have to fall back to eu directive 2004/38 for article 6 section 1c.

[secret.simon]

Legal basis is schengen borders code article 6 section 1b and article 2 section 16.

I am inclined to think that the Schengen Borders Code would not apply to this situation. In that code, the term "Member-State" would not apply to an EU Member-state, but a Schengen Member state, which includes Switzerland, Liechtenstein, Norway and Iceland, but excludes the UK, Ireland and Denmark. Therefore, I would think that the OP's Residence Card would not be considered as a valid residence permit of a (Schengen) Member-State.

It is worth remembering that the EU Directive governing freedom of movement does allow for national legislation regarding entry and exit of Extended Family Members such as unmarried partners (Rahman judgment, paragraphs 19 & 20). It merely requires that such entry be "facilitated" and that any refusal must give reasons in writing.

You being issued with the Residence Card of the Family Member of an EEA citizen changes your status (from that of an EFM to that of a Family Member) in UK law, but not in EU law. This is one of the few instances where UK law is more generous than EU law.

What you have experienced is a shortcoming of the requirements of EU law and should be factored in during any future plans for travelling in the EU.

As an aside, Poland treats even marriage of same-sex couples from other EU countries (such as from the UK or the Netherlands) as only durable partnerships (EFMs) and not as spouses (direct family members).

[mgb]

Legal basis is schengen borders code article 6 section 1b and article 2 section 16.

I am inclined to think that the Schengen Borders Code would not apply to this situation. In that code, the term "Member-State" would not apply to an EU Member-state, but a Schengen Member state, which includes Switzerland, Liechtenstein, Norway and Iceland, but excludes the UK, Ireland and Denmark. Therefore, I would think that the OP's Residence Card would not be considered as a valid residence permit of a (Schengen) Member-State.

The term "member states" doesn't link to the second half of the sentence in article 2 number 16.
The eu directive 2004/38 is valid in the whole EU.
Additional article 11 about stamping travel documents make no reference to schengen in section 3g of this article which exclude holders of residence cards based on 2004/38 from stamping.