Directive 2004/38/EC spouse of UK citizen visa problems

[WorldDreamer]

Hello dear members,

We're experiencing hard times trying to get our visa.

I'm British and my wife is NON EU citizen.
Last year my wife got a tourist Schengen visa and then we got married in Portugal, than we decided to live in Portugal and applied for residence there, I got my Portuguese Residence certificate and we applied for Residence card for my wife.
As it takes a while to get a residence card for my wife we decided to go to Ecuador for our honeymoon taking in mind our free movement right, Directive 2004/38/EC and Portuguese issued marriage certificate with apostille thinking we are all set. We double-checked the europa.eu guides and forums, so we thought we should have no problems to go back.

When we crossed the border in Spain to go to Ecuador we've been told by border officer that my wife overstayed her Schengen visa, but I stated we are already married and reside in Portugal and he just put some crossing marks on a departure stamp in her passport. She also been advised to get a return Schengen visa.

In a while we went for my wife's Schengen visa to Spanish consulate in Ecuador (there's no Portuguese consulate, and Spanish is in charge of issuing visas for them) and been denied even to apply for visa by consulate stating my wife has no residence in Ecuador (she although has valid tourist visa). Even writing declination of my wife's visa was issued stating absence of residence in Ecuador as a reason.
We were shocked!
We tried to apply once more on the next day now with printed doc's from europa.eu and forums - but consulate officials declined to deal with us in a very rude manner, even declining to represent their selves.

We decided to go to German consulate thinking that it should be easier to get a visa from them.
We've been asked to provide tickets to Germany and booking confirmation. Although it's clearly stated in the Directive 2004/38/EC no such evidence should be asked, we managed to book a flight and provide hotel booking for 3 weeks in Munich.

The application was processed free of charge and within a few days they called us to the Consulate.
My wife's visa was DECLINED now by reason that our travel plans include only 3 weeks in Germany and the rest we're going to spend in Spain/Portugal, so we must apply there.

Meantime I wrote e-mails to SOLVEIT and to Ministry of Foreign Affairs and Cooperation of Spain.
SOLVEIT responded quickly stating that we have full right to apply and get visa from Spanish Consulate with no need in Ecuador residence visa with all links etc. Ministry wasn't very helpful, but replied that we should "justify properly" (justificar debidamente) our application of visa with no residence in Ecuador.

We returned to Spanish consulate and they recognised us, but took my wife's application with no any sound regarding absence of residence in Ecuador! I have no idea if they were contacted by SOLVEIT or Ministry, but they asked no questions and took the provided docs (Passport, copy of my British passport, copy of the marriage certificate and flight tickets, application form).
BUT! They issued my wife a "REQUERIMENTO DE COMPARECENCIA" (REQUIREMENT OF APPEARANCE) that she MUST "appear" in consulate in a week.

It definitely doesn't appear to seem like stated in Directive:
"If your non-EU family members need an entry visa, they should apply for one in advance from the consulate or embassy of the country they wish to travel to. If they will be travelling together with you, or joining you in another EU country, their application should be processed quickly and free of charge:
Countries which are members of the border-free Schengen area should issue visas within 15 days, except in rare cases, when the authorities"

Now we are really nervous regarding the issue and if anybody can help what we should be prepared for now?
Any suggestions?

[mgb]

First the germans were wrong. They applied the rules for a tourist visa and not for a visa for a family member of a eu citizen. A family member need only a visa for crossing the border and not for staying. If your wife want to cross the external schengen border in Germany they are responsible for a visa.
Second I guess the spaniards will issue a visa at the day of appearance.
Article 5 of the directive 2004/38 give the right to entry without any precondition for the starting point of the journey.
Due to article 134 of the schengen convention schengen rules are not applicable if community law say otherwise.

[WorldDreamer]

Thank you, mgb,

I do understand that Germans made a decision that is based on rules for tourist visa, that's why I wrote the post.
Nobody in consulates pays any attention to the Directive and to rules for issuing this kind of visa.
Even they didn't charge for visa they processed based on other rules (and asked for bookings) and when I tried to point them on the rules, providing letters from SOLVEIT and printed Directive they just told me that my wife's intention was to get the visa to go to Portugal and "you're lying you intend to go to Germany" (that was said in a very disrespectful manner)

As there's no any organ dealing with and solving complaints we feel very weak in the situation.

I can't understand such ignorance and their motivation on denying to stick a piece of paper to make the life easier. We clearly stated we live in Portugal, provided marriage certificate and let them know we're going home.
We now feel they all treat us like criminals and we have to fight for our rights. Crazy.

Let's see what will spaniards ask on my wife's appearance...

I'll post the result here.

[compi]

May be you can call your lawyer in Portugal, and check if your residency card has already approved. Then he/she can collect it on your behalf and send it to you.

Maximum time to process this residency card is 90 working days. I have the same card, and mine was just sitting in SEF until I emailed them to ask the status after 80 days, which they replied that I can visit SEF and collect my card.

[mgb]

I guess you didn't make it clear at the schengen application form that your wife apply for a visa for a family member of eu citizen.
The normal way is to mark other at field 21 and write family member EU.
The germans have to apply there own Freizügigkeitsgesetz and not their Aufenthaltgesetz.

[WorldDreamer]

Dear mgb,

Yes, you're right, we didn't pay attention to the section 21 and marked it as "tourist" as a purpose for visa when we applied to Germans.
Although they didn't charge us for application as they have to in case of tourist visa application.
We clearly described our situation and intentions to them.
In the last application to spaniards we've put "other" in section 21 and wrote "family member of EU citizen Directive 2004/38/EC"
We recently received another message from "Your Europe Advise" stating they contacted Spanish consulate in Quito advising to process our application. I think that was the reason they finally accepted the application.

Now we're looking forward "to appear" in front of Spanish Consul hoping the issue will be resolved...

[Cheekychop]

Hi WorldDreamer,

Could you please give us an update how things go for your wife tomorrow?

We have been through the same formality in Spanish consulate in Quito, Ecuador today, just a little bit less hassle thanks to your post, so we learnt some lessons. Right from the entrance, all securities tried to navigate us to BLS, the visa service agency. We insisted and eventually they let us in.

In the office, the officer said I need to have residency in Ecuador to submit the application. My husband said that is not right and he will contact EU about this. The officer then took the application and passed to another lady staff.

That lady asked us to wait (with a number - plastic ticket) while she served all other people who just walked in after us, no ticket. Eventually, she called us and checked our documents. She asked us a lot of questions and to provide the itinerary for our trip. We said we don't have now and we don't have to provide it. She called someone and then 1 minute later accepted that's ok.

She also issued the "Requerimiento De Comparecencia" which like your wife, we have to wait for a week and show up in person at the consulate.

Although it doesn't seem like they want to issue the visa as soon as possible like they should do, I'm ok with that for now. My concern is if 1 week later, I show up and they asked for additional documents, etc. or worse, just a visa rejection, then I will not be ok with that. At all.

If your wife show up and got the passport with visa back, no further question, then I'll wait. If you have some issues still, I'd better prepare to get some proper help.

My husband is British and I am Vietnamese. We were married just recently but have been travelling together constantly to many countries for nearly 2 years.

Thank you for your sharing and update. We really appreciate it.

[pentaya]

I am in a similar situation. I am a British citizen and my wife has ILR (Indefinite Leave) for the UK.

Unsure how to apply for Schengen visa. Can I apply to France consulate for visit visa under spouse?

Please kindly someone guide me.

[WorldDreamer]

Hello,

My wife GOT A VISA TODAY!!! Hooooooray!!!!

Dear Cheekychop, we came today to the Consulate, although only my wife were accepted to enter.
In a few minutes she received her passport with a visa, no questions was asked, no any kind of conversation.
She got her passport from the same stuff she applied visa to.
I can recommend to come at 14:00 precisely as we had to wait until 14:00 in a queue at the sun with other people (all ecuadorians) and all of them was with the same paper "Requerimiento De Comparecencia" @14:00, they don't let in until 14:00.
I'm happy to learn my post helped you to apply with less hassle and waist of time, as we started the process 3 weeks ago!!! and only last Monday they accepted our application (after complains to Your Europe Advise and to Spanish Foreign Office) and today we finally got the visa.
We were in stress for 3 weeks because of their unprofessionalism.

The only concern is she was issued 30 days visa type C for 2 months, that's definitely not the type of visa they are obligated to issue (90 days family of EU citizen).
It's not a problem for us, as the residence card should be issued for my wife in Portugal shortly, so I hope it's the last time we had to apply for Schengen visa, but it looks very stupid on their side.
We clearly marked "other" Family Member of EU Citizen and 90 days in the application.

Dear pentaya, if you have proper marriage certificate your wife may apply in any Schengen country consulate directly for a free visa. You need copy of your passport, original and copy of marriage cert and her passport. They also ask for tickets/bookings to prove you're traveling together (but you're not obligated to provide them).

[pentaya]

Congratulations buddy. Happy for you.

I just complete the normal application form, 2 photos, my passport with copies, her passport with copies and marriage certificate.

Good to know the visa is totally free of charge.

[Cheekychop]

Hi WorldDreamer,

given your situation, congratulations! Hopefully she won't have to deal with more red tape in the future.

Thank you and i'll let you know how we get on.

[Cheekychop]

Hi all,

Fyi, when I showed up in the Spanish consulate, they gave me back my passport with NO visa and a Spanish letter said they did not proceed my visa procedure because I don't have Ecuadorian residency (I only know when using translation back home). I asked them to give me an explanation letter in English then, they refused. And of course they did not let my husband in the consulate with me.

We went home and sent an email to SOLVIT, explained the situation. A week later, SOLVIT answered us that unfortunately, with third country citizen, the Spanish consulate acted in accordance with the law. And I have to go back to my home country to apply for Schengen visa.

We also sent emails to check with German consulate and French consulate in Quito, they both refused to take my application since I am not Ecuadorian/ don't have residency in Ecuador.

The British consulate could not help either.

Obviously, the law has changed since the Directive was issued.

[mgb]

We went home and sent an email to SOLVIT, explained the situation. A week later, SOLVIT answered us that unfortunately, with third country citizen, the Spanish consulate acted in accordance with the law. And I have to go back to my home country to apply for Schengen visa.

Ask solvit what they think about article 134 schengen convention.

Article 134

The provisions of this Convention shall apply only in so far as they are compatible with Community law.



The eu directive 2004/38 is community law and article 5 right of entry has no precondition where the journey has to start. Therefore schengen law about the country of application is not applicable.

[Cheekychop]

It was very frustrating to see how these consulates work although I grew up in a developing country. Actually, I have never had any problem regarding visa application in any country. However, we already extended accommodation in Quito to wait for the visa result and don't want to spend any more energy fighting this. We are in Cuenca and just relax before going to a new destination.

[mgb]

If nobody stand up and complain to Solvit nothing will change.

[WorldDreamer]

Very strange, as I said we received the visa in the same situation in the same Consulate from spaniards few weeks ago.
It's a nonsense they treat you in a different way in a few days after us.
We wrote letters to Spanish Foreign Affairs Ministry and to "Your Europe Advise" (not SOLVIT actually)
There's obviously no any changes in law.
Keep pushing them.

I can tell that German Consulate didn't ask for residence in Ecuador, but declined our visa because they decided we spend minor time in Germany and must apply to Spain.

[WorldDreamer]

Just to help you to relax We've been to Cuenca a couple of days ago - try "EL MERCADO" Restaurant on Calle Largo - the best yummy experience ever had in Ecuador...
There's also a Consulate in Guayaquil...

[Cheekychop]

Thanks, WorldDreamer. We had a great time in Cuenca and already in Peru for nearly a week. We have fixed plan here till April. We didn't go to Guayaquil as we emailed them long time ago with no feedback.

I remembered your case regarding to German consulate. But I emailed them and asked specifically (after a few emails to and fro) if they can consider me a special case and help since Vietnam is too far away to fly back and apply. They said No Way. I have to arrange it myself. All in writing emails.

We actually want to go to Portugal but don't mind to change our routes since I have a lot of friends in Germany, Spain and France. Strangely, all those consulates asked for my residency in Ecuador or now Peru. Yes, Portugese consulate in Lima asked for my Peruvian residency, too. We emailed Portugese consulates in London and Manchester to check. The one in London said due to technical issues, currently they can't proceed spouse visa for me. The one in Manchester said will contact us when we are back in the UK. We also emailed the Immigration department in Lisbon, no response regarding where we should apply.

I'm really wondering if this is a political game between EU and UK due to Brexit or because I'm a Vietnamese.

Hi mgb, you are right. I'll get back to SOLVIT and asked them with the info you provided. Thanks.

[mgb]

I remembered your case regarding to German consulate. But I emailed them and asked specifically (after a few emails to and fro) if they can consider me a special case and help since Vietnam is too far away to fly back and apply. They said No Way. I have to arrange it myself. All in writing emails.

Ask the germans how they interpret unconditional (voraussetzungslos) in AVV zum Freizügigkeitsgesetz section 2.5 .