Thanks folks, for the responses and discussion!
I did also raise this with Solvit - last week and I've just got a rather lenghty and convoluted response from them. I had to read it about three times before I could make sense of around 70% of it.
Dear Madam:
Thank you for getting in touch with Your Europe Advice.
You indicate that you are an Indian citizen, and that your unmarried partner is a Dutch citizen. Arising from your unmarried partnership, you have been issued with a residence card for 5 years, with the indication that you are the family member of an EEA national.
You travel to other Member States on a frequent basis, and find that you are frequently compelled to having to process visas in order to do so.
You have a number of questions, which I shall endeavour to respond as succinctly as possible. If the answers provided below do not sufficiently clarify the situation for you, you are urged to contact us again so that you may put further follow up questions to our service.
1) Scope of free movement: Article 3 paragraph 2 Directive 2004/38
A) Do you benefit from the automatic rights of free movement where you are the unmarried partner of an EU citizen?
The short answer is no, given that you fall under the scope of Article 3 paragraph 2 Directive 2004/38. The legal basis for this is based on the wording of Article 3 paragraph 2:
“2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons.”
Reference is made to “national legislation”. Member States have seized on that wording to mean that other family members (“OTM”) are subject to national law ("OTM" is used as short hand for the non core family members, ie those falling outside the scope of Article 2 paragraph 2 of Directive 2004/38).
The answer to your question is therefore that relevant Consulates have legal authority to treat your application for a visa under domestic legislation, and not under European Free Movement law.
B) Do you benefit from the visa exemption contained under Article 5 paragraph 2 Directive 2004/38?
Your other implicit question is whether you may benefit from the application of Article 5 paragraph 2, which contains a visa exemption.
You find that the authorities of some Member States refuse to apply the exemption contained under this provision on the grounds that you are not a family member as defined under Article 2 paragraph 2.
This arises out of a restrictive interpretation of Article 5 paragraph 2 Directive 2004/38. Thus, given that you are not a “family member” as defined under Article 2 paragraph 2, Member States interpret you as falling outside the scope of the visa exemption contained under Article 5 paragraph 2.
Whilst this may be true on a strict reading of the provision in question, this interpretation also run counter to the well settled principle under Free Movement law that provisions should not be interpreted restrictively (per Paragraph 84 in the Case of Metock, Case C 127/08 Metock and Others [2008] ECR I 6241, see link for more details:
http://curia.europa.eu/jcms/upload/docs ... 0057en.pdf);
Recital 8 Directive 2004/38 sheds a clarifying light on how the exemption contained in Article 5 paragraph 2 must be read.
(8) With a view to facilitating the free movement of family members who are not nationals of a Member State, those who have already obtained a residence card should be exempted from
the requirement to obtain an entry visa within the meaning of Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement 1 or, where appropriate, of the applicable national legislation.
Thus, Article 5 paragraph 2 of Directive 2004/38 consecrates the principle of free movement already enshrined in the Schengen Convention entitling a third country national who is a already a resident within the European Union to travel visa free throughout the territory of the Union.
Accordingly, (so goes the argument), inasmuch as the UK has taken the step of treating you as a “family member” by issuing you with a Residence Card indicating that you are the family member of an EEA citizen, the nature of the exemption contained in Article 5 paragraph 2 should compel other Member State to treat you as a family member as well and to apply the benefit of the exemption in your case.
Having said that, I must highlight the fact that this theory has not been tested in the courts yet and the above exposition must be treated as a theoretical or academic legal exercise.
2. What documentation can you provide to demonstrate that you are in a durable relationship?
As a preliminary point, it must be underlined that you are not a “family member” as defined under Article 2 paragraph 2 of the Directive, given that you are not married.
Accordingly, what you must demonstrate is that you are in a “durable relationship”.
Evidence of this durable relationship will consist in the following:
Cohabitation evidence (e.g lease agreement, correspondence evidence proving that letters are being sent to you and/or your partner at the same address, proof that you are both registered at the same address for tax purposes, voting etc).
Evidence that you are mutually sharing the financial burden of living together (e.g. joint bank account, or joint utility bills);
Evidence that you may be dependent on your partner (or vice versa): Financial information that would support the fact.
Evidence you travel together on holidays
3) What document could you provide that would place yourself under Free Movement law, such that your application could be resolved under an accelerated process and free of charge?
A marriage certificate (as proof that you are married)!
Getting married to your partner would cause you to fall under the application of Article 2 paragraph 2 of Directive 2004/38. You would benefit from the automatic right of free movement contained in the Directive (visa exemption under Article 5 paragraph 2 Directive 2004/38 and/or free visa process, and accelerated visa process);
4) Moreover, is there any possibility that I can request a long term multiple entry tourist visas under my circumstances?
The answer to that is yes! Under the Visa code:
The visa code is established by virtue of REGULATION (EC) No 810/2009 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 July 2009 establishing a Community Code on Visas.
Specifically under Article 24 paragraph 2 of the code, you may apply for a Schengen visit visa which can be issued for a period of 5 years, providing that the following conditions are satisfied:
(a) the applicant proves the need or justifies the intention to travel frequently and/or regularly, in particular due to his occupational or family status, such as business persons, civil servants engaged in regular official contacts with Member States and EU institutions, representatives of civil society organisations travelling for the purpose of educational training, seminars and conferences, family members of citizens of the Union, family members of third-country nationals legally residing in Member States and seafarers;
and
(b) the applicant proves his integrity and reliability, in particular the lawful use of previous uniform visas or visas with limited territorial validity, his economic situation in the country of origin and his genuine intention to leave the territory of the Member States before the expiry of the visa applied for.
On the face of it, where you are able to prove the above conditions, you will be eligible for the granting of a long term visit visa. Please note that a visit visa application is entirely discretionary and you must prove the conditions set under the Visa code (purpose of the visit, length of stay, financial guarantees and medical insurance cover).
For more on this, you are urged to consult the following link:
http://europa.eu/legislation_summaries/ ... 028_en.htm
Please follow the link to the French website:
http://vosdroits.service-public.fr/F19315.xhtml
Please follow the link for the Spanish website for more information on how to apply:
http://www.mir.es/SGACAVT/extranje/ciudadanos_UE/
Please find below a link for a lawyer should you wish to instruct a lawyer with respect to this process.
http://www.ccbe.eu/index.php?id=140&L=0
Given the many instances where Member States have been found to misapply the terms of European Union law in this field, the European Commission has been compelled to issue guidelines on the subject. Please follow the link:
http://eur-lex.europa.eu/LexUriServ/Lex ... FIN:EN:PDF
Should you feel the need for an immigration adviser in Spain, please follow the link to contact an Immigration lawyer, which you may find through the following organizations located in various parts of Spain:
http://www.ccoo.es/comunes/estatico/CSC ... esCITE.pdf
http://www.ugt.es/inmigracion/foroinmigracion.html
The Spanish Red Cross also provides free legal clinics with Immigration Lawyers who will advise you about the steps to take.
http://www.migrar.org/asesoria/equipo/asesores/
I trust the above will serve to answer the query you had, thank you for contacting Your Europe Advice and look forward to hearing from you in due course.
Yours truly.
Your Europe Advice.
Its rather ironic that they say they hope to hear from me in due course.
I believed "registered partnership" is everything outside marriage, incl. durable partnership, same-sex or not. Learning something new every day, thanks!