Reply from Spanish Consulate regarding la Directiva 2004/38

[Richard66]

Yes, UK and French immigration, from what I understood from my call to the Eurostar, are present at both ends of the train, so there shouldn't be too much of a problem there.

I've just called the French consulate (Florence) and the French embassy (Rome) Impressive: immediate answer! And not only fast, but clear and to the point! I'm no longer used to this!

I'll let you know a little secret about Solvit in Rome: After my first inquiry they decided (without even bothering to check the British Regulations) that I did not benefit from the Directive. So they decided not to reply! Now, I need to supply them with all information so they can decide I'm right.

When are people at the other end of the Channel going to realse that going their way is all very well if you're Frank Sinatra, but in the EU this sort of attitude is not at all productive.

Thanks all for your support and letting me try the pudding!

[Richard66]

I've received an informal answer from Solvit in Rome. This may yet change before tomorrow, but...

It's like this:

If I go to the UK to SETTLE I can go with my wife and NO VISA or FAMILY PERMIT

If I go to the UK for A HOLIDAY with my wife she needs to clear normal UK Immigration, that is, she needs to apply for a VISITOR'S VISA

Now, if I were Italian I could go with my wife to the UK FOR ANY REASON with NO VISA or FAMILY PERMIT

So, If I change my nationality and become a NON-British but EEA citizen, it's actually easier for my wife to travel with me.

How absurd can one get?

[Richard66]

Solvit did confirm, however, that the residence card issued by ANY member state substitutes the visa for ANY member state: that is what the Directive says. What the British want it to mean, that is, that the residence card needs to be the UK one, is a wrong interpretation.

European Commission, here I come!

[mym]

European Commission, here I come!

Keep us updated Richard :)

[Richard66]

Sorry, Mym!

I didn't make it: the chap at the airline refused us boarding, but at least he gave us the money back.

The chap claimed this:

That the local ITALIAN border police said they might refuse my wife boarding as she had no UK visa;

That he called the British Embassy in Rome who told him that in no circumstances could my wife enter the UK without a visa.

He would listen to no reasoning and abided by what the Embassy said, rather than what the law says.

The beautiful thing is, I have all this in writing! No REFUSAL, but a suggestion we might give up and he'd return our money, all on paper, includung the bit about the police and about the Embassy.

We did go as far as buying train tickets to Paris, but it proved impossible to get the Eurostar tickets in Italy. We thought about spending the night in Paris, but... Because of Rugby there were no hotels, so we decided that enough was enough.

I have put together a folder with ALL this and all other documents I could lay my hands on and am getting ready to send it all to the European Commission. I am at present writing a petition to the European Parliament. What is the consensus? Should I send first a petition to the Parliament and then to the European Commission? Should I send both together? Should I sent it to one or to the other?

Also, would it be any use letting the Secretary of State know about this? Is it any point trying to bring this case to a UK court?

[mym]

That he called the British Embassy in Rome who told him that in no circumstances could my wife enter the UK without a visa.

He would listen to no reasoning and abided by what the Embassy said, rather than what the law says.

The beautiful thing is, I have all this in writing!

Excellent. Can you not sue them in Italy?

As far as the British Embassy's illegal intransigence goes I seem to recall that the Commission can initiate legal action in such cases.

[Richard66]

This is what I have, all from the airline. Will it hold water?

Mr. XX,

this is the last e-mail i send on the matter.

I apologise for having sent a wrong information about your question.

Nevertheless, once again, Your Embassy has confirmed me that your wife will need a visa to enter UK. All relevant info on how to apply (also online) and why the visa is necessary are described in full in the links below:

http://www.britishembassy.gov.uk/servle ... 2838904623

http://www.britishembassy.gov.uk/servle ... 7335957384

http://www.ukvisas.gov.uk/servlet/UKVis ... tion=Italy

Once again i confirm you that your tickets can be refunded or changed without problems. The autorisation will be given to your Travel agency.

The passenger is responsible of his own travel documents in full. Sincerly i hope you will follow the rules given by of Your government and apply for the Visa.

I remain at your disposal for any further info you may require.

regards
XX
--------------------------------------------------------------------------------
Dear Mr. XX,

I have spoken to British Emabssy a few minutes ago and the were very clear on the matter.
She needs EEA Family member Visa and all information on how to apply are decribed on British Embassy web site.
Also maybe you would like to have a look at the following link which describe - in flull - how the regulation applies in this case.
http://ec.europa.eu/justice_home/fsj/fr ... try_en.htm

There is no problem to refund the tickets in full. The procedure is very simple and can be done without problems.

let me know
Best regards
XX
--------------------------------------------------------------------------------
Dear Mr.XX,

reference our phone call today and my e-mail yesterday i just want you to advise that only the local Police has the right to examine all the documents and verify if she is elegible to leave Italy and enter UK or not without Visa. I used the term "seems to be ok" for this reason .This does not mean that the Police will let her fly on thu 28th and i have no power to discuss a decision taken by the immigration Police.
I don't understand indeed the position of the UK Consulate on this matter. I mean If EU directive has been acknoledge by UK why they have not issued a temporary Visa for your wife.

Best regards
XX
--------------------------------------------------------------------------------
Dear Mr. XX,

Thank you for your fax.

Have spoken with local Police and all docs seems to be ok.

May i ask you the departure date just to be sure to follow up your case properly.

best regards
XX

[Dawie]

These Italians are crazy...what the F**K do the Italian border police have to do with UK immigration? They are responsible for the borders of Italy, not the UK.

[Richard66]

I have the sneaky idea he never spoke to the police... But again, they had told me this on the phone some days before. I bet no one there will confirm this in writing, however.

[mym]

As far as the police go:

Article 4 of Directive 2004/38/EC says:

"Right of exit. 1. Without prejudice to the provisions on travel documents applicable to national border controls, all Union citizens with a valid identity card or passport and their family members who are not nationals of a Member State and who hold a valid passport shall have t he right to leave the territory of a Member State to travel to another Member State."

As for the embassy I'd really demand an apology and that they correct their misleading website (I'm currently having an argument with the Embassy in Helsinki about inaccuracies on their website - this is turning into a hobby :) )

Just because it's always worth doing, I quote again below the relevant section of the UK Rules and their definitions (it's the 'UK only' definitions that need to be challenged in court IMO):

The Immigration (European Economic Area) Regulations 2006
Made - - - - 30th March 2006
Laid before Parliament 4th April 2006
Coming into force - - 30th April 2006


General interpretation
2.—(1) In these Regulations—

“permanent residence cardâ€

[Richard66]

Thank you for that, Mark! I was just preparing this information myself!

I'm writing a tough letter to the Embassy in Rome, demanding an appology and asking them to correct their Internet page. I also mention I'll be delighted to forward all this to the European Commission and that I'll be sending soon a petition to the European Parliament, together with all supporting documentation, including the letter the Vice-Consul sent me, the letter the Vice-consul never bothered to answer and the letter from the airline I quote in the post above. I better also include mention to Article 25 (directive) as well as the mention to Judicial redress (point 26). I also read in the European Casework Instructions that IO (and maybe ECO's) are warned about the consequences to the UK of making wrong decisions: infringement procedings as well as heavy penalties. Maybe I'll remind them about this.

[Dawie]

Richard, have you not thought of using online checkin with the airline you are flying with and thereby bypassing the check-in staff?

[Prawo]

I do not think there is any by pass, as the airline at the latest will check the documents at the gate when boarding.

Besides, leaving the Schengen area involves passing the Italian boarder control. I wonder if they will let her leave on the basis of only the passport and the internet check in (though they should).

[Dawie]

My experience of traveling in the Schengen area with a South African passport and Schengen visa has been that the boarding gate check that airlines do simply involves checking that the name on the ticket matches the name on the passport. The only time I've seen airline staff actually check for a visa has been at the check-in desk itself.

There have been many times when flying from France and Spain, for example, where I've checked in online, completely bypassing any check from the airline staff making sure I am eligible to fly to the UK. Going through French and Spanish exit controls, French and Spanish immigration officers have never asked to see my UK visa (and why should they, they are only responsible for French and Spanish immigration matters), they simply go straight to the Schengen visa and make sure I have not overstayed my visit.

Furthermore upon going through the boarding gate check that the airlines do, I have only ever seen the airline staff check to make sure that the name on the ticket matches the name on the passport.

But having said that, I've never been Italy, so maybe things work differently there?

[Richard66]

Well, about passport checks I have this experience: people who have two or more nationalities (let's say Italian and Russian) They will obviously leave Italy with the Italian passport. Now, if they are going to Russia? what can the Border Police say? That you can't board?

[Directive/2004/38/EC]

My experience of traveling in the Schengen area with a South African passport and Schengen visa has been that the boarding gate check that airlines do simply involves checking that the name on the ticket matches the name on the passport. The only time I've seen airline staff actually check for a visa has been at the check-in desk itself.

There have been many times when flying from France and Spain, for example, where I've checked in online, completely bypassing any check from the airline staff making sure I am eligible to fly to the UK. Going through French and Spanish exit controls, French and Spanish immigration officers have never asked to see my UK visa (and why should they, they are only responsible for French and Spanish immigration matters), they simply go straight to the Schengen visa and make sure I have not overstayed my visit.

Furthermore upon going through the boarding gate check that the airlines do, I have only ever seen the airline staff check to make sure that the name on the ticket matches the name on the passport.

But having said that, I've never been Italy, so maybe things work differently there?

I agree with most of this.

Using checked baggage as a operational and economic incentive for the airline to let you board is also an option. You buy two seperate internet bookings, one for the non-EU and another (with baggage reservation when flying with Ryanair) for the EU citizen. Non-Eu checks in online and is not checked until the gate or at all, as discussed. EU checks in at airport and checks their bag. Now both go to the gate and board as late as possible. If the airline has a problem with the couple boarding, then discuss EU law extensively with the airline staff. In the worst case that the airline denies boarding, then they have to open up the plane to get off the bag(s) before they depart, costing 15 minutes to their departure time. They likely loose their departure or arrival slot.

[Richard66]

It's all very well to know all this after... Well, I'll keep this information for next time! Thank you for it: it will be of use.

I'm not sure, however, all airlines do online check-in, principally if one buys the tickets at a travel agency.

As to Mark's suggestion, I DID send a fax (copy by registered post) to the Deputy Head of Mission in Rome, explaining all that happened and also including a copy of the e-mails I received from the airline, where it is stated the reason we were refused boarding was the confirmation by the Embassy that lack of visa or lack of EEA family permit (the Embassy can't decide which) would mean my wife would be refused entry into the UK. I was quite adamant that Regulation 9 of Immigration (EEA) Regulations apply in our case and that Regulation 13 allows us to enter the UK for three months without any other conditions than the possession of valid pasports. That poor misguided UK Visas insists that the Surinder Singh case still applies in full (no initial right of residence...) and that case law overrides EU Directives...

In any case, I said they had given misguided information (that my wife would have been sent back) and demanded an appology in writing and guarantees this will never happen again. If in 5 working days (they promise replies within this period) the whole thing will go first to the European Parliament (a petition) and then to the European Commission, will all documents attached!

Maybe this way they'll move.

[mym]

As ever, keep us informed please Richard.

[Richard66]

Well, there are three options for the DHM in Rome:

1) He appologises and says (in writing) my wife needs no visa to travel with me to the UK: we are happy and go to the UK and I HAVE THE EVIDENCE they're in the wrong!

2) He appologises but is sorry to say the rules are the rules and no way can she enter without a visa: European Parliament petition, European Commission and so on. and I HAVE THE EVIDENCE they're in the wrong!

3) He ignores me. European Parliament petition, European Commission and so on and I HAVE THE EVIDENCE they're in the wrong!

A win-win situation!

[Richard66]

Well well... Before the morning is out the vice-consul in Rome, who has been ignoring me since 17 October writes to tell me she didn't answer before because she was out of the office till 1st October. So, people go on holiday, correspondence is not taken care of, planes are missed, hotels need to be cancelled, holidays postponed, all because Mrs Vice-Consul is on holday! We're now on 8 October... If she was back on 1 October what's the excuse now? She says she has forwarded all my letter to LONDON! Apparently my letter form Friday joined the parcel. Maybe if at London they see I mean business and that I'll refer the whole thing to the European Parliament, to the European Commission and to the European Court of Justice they'll change tune. I thought about sending details of this rigamarole to the press. Maybe they'd (the press, not the Embassy ) enjoy that! I'd certainly enjoy seeing it on paper at the newsstand!

[Richard66]

Big news!

Today I received a letter from the office of Mr Franco Frattini, vice-president of the European commission.

It confirms that the residence card issued by ANY MEMBER STATE is valid as a short stay visa for entry into ANY OTHER MEMBER state.

That my wife need not apply for any visa, if travelling with me.

It is recommended, IF POSSIBLE, to obtain a visa, though the UK should issue her with a visa at the border, if we can prove the family link.

About the long list for the EEA family permit...

The UK has already had its ears pulled on this. They replied that supplying the documents on the list is not mandatory, but "helps" the ECO. make a decision. The letter added that the Commission was not convinced by this lame excuse and will continue investigating this.

[mym]

Draw their attention to the UK Embassy down the road in Brussels...

Details as in the letter below I sent them this week:



Dear Sir/Madam,

May I draw your attention to an error on your website, which I am sure is unintentional.

In Regulation 12 of The Immigration (European Economic Area) Regulations 2006 are stated the requirements for the Issue of EEA family permit:

12. (1) An entry clearance officer must issue an EEA family
permit to a person who applies for one if the person
is a family member of an EEA national and -

(a) the EEA national -
(i) is residing in the UK in accordance with these
Regulations; or
(ii) will be travelling to the United Kingdom within six
months of the date of the application and will be
an EEA national residing in the United Kingdom in
accordance with these Regulations on arrival
in the United Kingdom; and

(b) the family member will be accompanying the EEA national
to the United Kingdom or joining him there and -
(i) is lawfully resident in an EEA State; or
(ii) would meet the requirements in the immigration rules (other
than those relating to entry clearance) for leave to enter
the United Kingdom as the family member of the EEA
national or, in the case of direct descendants or dependent
direct relatives in the ascending line of his spouse or his
civil partner, as the family member of his spouse or his
civil partner, were the EEA national or the spouse or civil
partner a person present and settled in the United Kingdom.


Note the use of the imperative "must". There is no discretion involved on the part of the ECO if the proof required by the Regulation is supplied.

However, on your website (at http://www.britishembassy.gov.uk/servle ... 9200344869) after mentioning those documents sufficient to the needs of the regulation, the following additional list of documents required is given:

___________

Evidence of funds available: all bank statements for the last 3 months (original 3 months + copy of last month)

Proof of income:
- your Belgian work permit or professional card (original + copy)
- if employed: a recent letter from your employer confirming your current employment, stating when you started your job, whether you work part-time or full-time and confirming your holiday OR your 3 latest salary slips (originals + copies)
- if unemployed: a recent attestation from the Unemployment Office or from the CPAS/OCMW stating since when you are receiving benefits and how much you receive per month (originals + copies)
- if studying: a recent letter of enrolment for the current academic year giving full details of your course + proof of how you finance your studies: scholarship or sponsorship (prise en charge/tenlastenneming), proof of income and bank statements of the
person you are financially dependent from, etc. (originals + copies)
- if self-employed: business papers: registration from the company, Belgian statutes (MoniteurBelge), Invoices (2 or 3), evidence of business with the UK (if applicable), etc. (originals + copies)

If you are staying with relatives or friends in the UK: a letter of invitation (with envelope) and immigration status of your UK sponsors and any other document to support your application
- if British: a photocopy of the identity page of the passport
- if foreign: photocopies of all identity pages, page with visa to enter the UK and page giving present leave to remain in the UK
Invitation letters should be sent directly to the applicant and NOT to the British Embassy Brussels

Business people need to provide a letter from their company confirming that they need to travel to the United Kingdom for business purposes, as well as a letter or faxed invitation from the company in the United Kingdom (original + copy)

If you don't have an income: bring proof of income and bank statements from the person you are financially dependent from and proof of relationship (ie. marriage or birth certificate, ...etc). (originals + copies)

If someone is sponsoring your trip: bring copy of passport (or Id card), letter of sponsorship, proof of income and bank statements of your sponsor. (originals + copies)


You can submit any other document you think might be relevant to your application (proof of property, proof of assets, household composition, marriage and birth certificates, proof of previous employment, proof of previous studies, ...etc). (orignals + co
pies)

___________

This list is followed by the categorical statement: "The supporting documents referred to in this section constitute the minimum requirements for an EEA Family Permit"

As I am sure you are aware, this is an inaccurate statement. Whilst those extra documents might be needed for the "extensive examination of the personal circumstances of the applicant" of Extended Family Members (provided for in Regulation 12.3) they are deliberately not required for an application by a Family Member. Both categories are clearly defined in Regulations 7 and 8.

I would be grateful if you could amend your website so that it makes it clear that Family Members need not provide this extensive and intrusive list of extra documents and, if you decline to do so, a letter giving your reasons.

Many thanks for your attention,

[mym]

It confirms that the residence card issued by ANY MEMBER STATE is valid as a short stay visa for entry into ANY OTHER MEMBER state.

You have told them that the UK Regulations EXPLICITLY rule out any Residence Card other than a UK one being used for this purpose?

[Richard66]

Yes, I told this to Mr. Frattini. The answer tells me that this attitude on the part of the UK goes beyond what is provided for by the Directive.

This letter is quite explicit, it only doesn't give my wife's name, otherwise its perfect!

I sent it to Solvit UK, Solivit Italy, to the airline and to the Embassy in Rome.

To the airline chap I mentioned that he had been duped by the Embassy. He's lucky I don't sue him.

[Richard66]

I'm preparing my petition to the European Parliament and the complaint to the European Commission.