Certificado de Empadronamiento entry visa complaint to EU

[plexel]

This is a complaint I just filed to EU Complaints at email address sg-plaintes@ec.europa.eu

A British citizen with a non-EEA wife should have the right to free travel and residence in the EEA according to EU directive 2004/38/EC. If they wish to move from Britain to Spain then by Article 5.2 Spain is required to grant "every facility" for her to obtain an "entry visa" to Spain as "soon as possible" and on the basis of an "accelerated procedure".

The Spanish Consulate in London do not provide any visa called an "entry visa", rather they provide a "Residence Visa to reunite a family member with a citizen of Spain or an EU member" with an extra condition above those of a straightforward entry visa, namely they require the British citizen to provide a "Certificate of Empadronamiento". This means he must have lived in Spain previously with evidence of a fixed address and registered with the Spanish town hall who then can provide the Certificate. Contrary to the granting of "every facility" law of Article 5.2 this extra condition is not in the list of 6 conditions for the visa on the Spanish Consulate website visa page and is only revealed when they post out the "Conditions of Application" (Page1Page2). So the applicant is seriously misdirected by the website rather than being given "every facility".

This extra condition is a direct breach of 2004/38/EC and can remove the right of free travel and residence from the wife. She cannot travel freely if the UK husband is required to have first lived in Spain and has not so lived. Why should he have to live there first anyway? In addition this condition does not enable the visa to be granted as "soon as possible" in an "accelerated procedure" and with "every facility". On the contrary this condition loads a huge burden on the applicant meaning that the visa will be delayed a long time while the husband goes to live in Spain first and will entail a high expense and disruption of lives.

In addition by Article 5.2 possession of a family residence card exempts the Certificado de Empadronamiento requirement since no visa is then required. Therefore the Certificado de Empadronamiento is an unnecessary requirement for entry and the Consulate should not ask for it in the visa application. Why they do ask for it I have no idea? Please note that family residence cards are taking 6 months or more to arrive and so are often impractical.

Furthermore by Article 5.4 entry into Spain cannot be blocked at the border for lack of visa if the right of free travel can be corroborated by other means (e.g. marriage certificate). This further highlights the illegality of requiring the Certificate of Empadronamiento since all that is actually needed for entry is a marriage certificate and passport with no visa.

I have already spoken to the Consulate about this and was told not to quote the law, and to get the visa then you need to provide what they asked for. So no joy there.

[86ti]

The Spanish Consulate in London do not provide any visa called an "entry visa", rather they provide a "Residence Visa to reunite a family member with a citizen of Spain or an EU member" with an extra condition above those of a straightforward entry visa, namely they require the British citizen to provide a "Certificate of Empadronamiento". This means they must have lived in Spain previously with evidence of a fixed address and registered with the Spanish town hall who then can provide the Certificate.

Why don't you just apply for an ordinary Schengen C visa and then apply for residence in Spain?

[John]

plexel, is that the way to go? Wouldn't it be possible to first get a Schengen visa, and then once in Spain to regularise her stay in the country?

Clearly Spain is one of the countries in contravention of parts of the EU Directive.

[acme4242]

Only a visit visa, Class-C is covered by EU law, 2004/38/EC
Class-C visa valid for max 90 days
However, You can then apply for residence as soon as you arrive.
or within 90 days.

Long stay visa Class-D, visa valid for more than 90 days.
come under Spanish national law, and I guess
this is what the Spanish Embassy tried to force you into.

For the purpose of moving to Spain it does not matter which
visa you apply for.
If you want to be covered by 2004/38/EC you must apply
for a short stay visit visa. Even though your intention is long stay
residence.

I know, its a bit confusing alright, but that's the law.

[MelC]

along with France, Germany and italy!

France requires a criminal record check and that the marriage is registered in the UK, which overseas marriages are NOT.
and this is only AFTER they have forcibly thrown the applicant OUT of the embassy TWICE telling them there is no such visa!

Germany redirects brits livng there to "national" immigration laws, and wants accommodation, salary, etc

Italy, you find screming embassy staff, who call the police to eject you because you don't have residience, and tell you to go to the british embassy if your foreign spouse wants a visa ~ thats what we encountereed last week in the Italian Embassy!!

I also know that spain denies all knowledge of any such visa ~ my friend ended up returning to the UK, getting a job there, and accommodation and applying for settlememnt although they had a new life planned for spain!!

all of this is in one small north african country!!!

I can also confirm that the UK on the other hand is very very good on the EEA/fp!!

[acme4242]

MelC,
If your applying for a Long stay visa, "Class-D", they can demand
whatever supporting documentation or procedures they like, as the
visa is issued under National Law.

As I mention above, you must apply for a short stay visit visa. "Class-C"
Then and only then can you wave the law book and EU directives at them.

Don't expect the Embassy to tell you any of this, they prefer the situation
where they can demand whatever they like from you.
Oh, if someone in authority tries to tell you, you cannot apply
for residence when you initially applied for a short stay visit visa.
Here is the ECJ case law to prove otherwise.
C-157/03 Commission v Spain
(Spain had demanded you must apply for a residence visa, class-d,
before being issued with a residence permit, Spain lost the case)

For more information, read the Schengen Visa Handbook
http://ec.europa.eu/home-affairs/polici ... 620_en.pdf

6. THE TYPES OF VISAS COVERED BY THE VISA CODE AND THE VISA CODE
HANDBOOK
The Visa Code "establishes the procedures and conditions for issuing visas for transit
through or intended stays in the territory of the Member States not exceeding three months in
any six month period" (i.e. "short stays") and "establishes the procedures and conditions for
issuing visas for the purpose of transit through the international transit areas of Member
States' airports.". The visas issued may be uniform visas, meaning that they allow the holder
to circulate in the entire territory of the Member States or visas with limited territorial
validity, meaning that the holder is only allowed to circulate in the territory of one/some
Member State(s), or airport transit visas allowing the holder to transit through the
international transit area of a Member State's airport(s).

For EU family members, please read from Page 86
PART III: SPECIFIC RULES RELATING TO APPLICANTS WHO ARE FAMILY
MEMBERS OF EU CITIZENS OR SWISS CITIZENS

[MelC]

No buddy,

ALL of these are applications for accompanying third country spouse of EU national entry visa's

ie: Directive 2004/38!!

[yustynne]

Hello,
I also want to discuss the same problem. I mean recently I have contacted Norway embassy in Morocco asking about what type of entry visa needs my non-EEA spouse and the embassy staff directed me to apply for a family reunification that requires to show income of 250 200 NOK a year, application fee 410 Euros and to wait for a decision 10 months. It is clearly a D type visa that is issued under general regulations but not under EEA regulations. So is the staff unaware of EEA regulations or they just play like that?
If my spouse would apply for a Schengen visa, what would he have to show or what documents should be submitted? What kind of purpose must be indicated? Does he have to mark the box OTHER and write TO JOIN AN EEA SPOUSE IN NORWAY? Or to mark family visit? But in case of family visit they always require to show that non-EEA spouse is supported by EEA spouse. Is it not truth? Does he have to proove it in the embassy once applying? Maybe somebody has an experience with any of countries applying for a Schengen visa (entry visa) as to get a residence card inside the country?

I have also contacted the Netherlands about entry visa. The staff claimed that my spouse needs a short stay visa (Schengen visa) as to enter the Netehrlands. Once I asked what purpose to mark, they said to cross OTHER and write the purpose TO JOIN EU SPOUSE IN THE NETHERLANDS. Is it right to do like that? As I also have noticed, the Netherlands changed income requirements and I do not know if these requirements also apply to EU citizens and their non-EU family members. I mean they require in their website that incomes must be available at least 12 months from the moment of application. This is a total nonsense! I mean if I do not have a job contract for more than 12 months, does it mean I am not entitled to bring over my spouse? Or if I work 3 months at one employer and 6 months at another, so what? Somebody has any idea about that?

[John]

yustynne, your nationality is .... ?

[yustynne]

My nationality is Lithuanian. Any ideas of what I wrote?