Reply from Spanish Consulate regarding la Directiva 2004/38

[Prawo]

I'm preparing my petition to the European Parliament and the complaint to the European Commission. I would like an opinion, principally from the lawyers here present:

If you send me a concept, I'll review it.

[Richard66]

I sent the letter from Mr Frattini's office to Solvit UK. This is what they have to say:

"I am grateful for sight of the attached letter. This advises that the Commission does not agree with the UK interpretation of the Directive. Until such time as there is a legal judgement which defines the position, our position remains unchanged. You are of course entitled to apply for a visa under UK national rules, as a British citizen. Alternatively, the Commission has advised that you have the right to seek redress through the courts."

In so many words: "We couldn't care what the Directive or the Commission says: what counts is what WE say".

I thought Solvit was an EU institution. From the tone of the message above it seems to be a channel of the UK Government.

I also sent the letter to the airline chap. His comment was that the letter from the Commission is all very well, but what really counts is What the British Embassy in Rome and the Border Police say and, until the latter agree, borading refused.

So much so for the law.

[Richard66]

This from the airline:

"tks for understanding. Infact it wasn't my intention to change your plan. One of my task is to protect XXX against penalties and, in this case, both the UK Embassy and the Police confirmed the same.
She must have a Visa to go to the UK.. I do thank you for all information you have sent which of course will be shared with Embassy's Airline liaison officer. However neither the UK Embassy nor the Police have informed Meridiana about changes yet. But i' ll be very happy to have you and your wife on board in the future and meet you personally."

And the Embassy in Rome sent me an e-mails, saying they have received a reply form London and that I shall hear from them at the latest in Thursday. J told the Embassy that I'll wait and then, if needed, I'll take appropriate action.

[geoffsinclair]

I thought Solvit was an EU institution. From the tone of the message above it seems to be a channel of the UK Government.

Nope not EU, its part of the national administration setup in each member state - appeals through national courts.

http://ec.europa.eu/solvit/site/about/index_en.htm

[Richard66]

I asked the enemy to give me aid and comfort! Sigh.

[Richard66]

For you, Mark: "changes" on the Internet site of the British Embassy in Rome:

DEPENDANTS OF EEA NATIONALS (01/04/07)

If you are a dependant of a national of the European Economic Area (see list below*), you can apply for an EEA family Permit, free of charge, if you are travelling with, or joining the EEA national of whom you are a dependant. Applicants must be legally resident in Italy.

* Austria, Belgium, Bulgaria (**), Czech Republic, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Iceland, Republic of Ireland, Italy, Latonia, Lichtenstein, Lithuania, Luxemburg, Malta, Norway, Netherlands, Poland, Portugal, Romania (**), Slovak Republic, Slovenia, Spain, Sweden, United Kingdom***, Hungary.

You should include all the documents you can to show you qualify for an EEA family permit, if you do not we may refuse your application. All documents must be originals, unless otherwise specified. You should also produce a copy of your permit of stay.

As a guide you should include with your application

· Passport or travel document valid for at least six months. Applicants who hold machine readable passports: if there is an error in the details on the machine readable page, you must obtain a new passport before we can accept your application;
· Italian permit of stay (permesso di soggiorno) if you normally reside in Italy OR, if you are temporarily in Italy, a valid Italian/Schengen visa to cover the purpose of your temporary stay. Copy of your previous Italian residence permit (paper format) if you currently hold an electronic version;
· Two recent photos;
· Evidence of your relationship to the EEA national, (i.e. birth certificate, marriage certificate, civil partnership registration), or if you are applying as the unmarried partner of an EEA national, evidence that you have been in a relationship akin to marriage which has subsisted for two years or more;
· Original or certified copy of the EEA national's passport or Identity Card;
· Evidence of sufficient personal financial means to maintain both/all of you in the UK (personal bank statements last three months/savings book);
· Letter from the EEA national's employer, and last three payslips in original;
· Letter from your employer with last three payslips if you work, or letter from university/school if you study;
· Declaration from the EEA national confirming they will be travelling to UK with you or that they are living in the UK and are inviting you to join/visit them, how long you will stay in UK, and that they will be present in the United Kingdom with you throughout the whole of your stay in the UK; that they will return to Italy with you at the end of your stay.

We will refuseyour application if we find that any documents are false.

(**) From 1 January 2007 Bulgarian and Romanian nationals will not require an entry clearance to reside legally in the UK, but they will not have an automatic right to reside as a worker. Bulgarians and Romanians wanting to work in the UK will need to obtain permission to work before starting any employment.
Information about living and working in the UK is available from: http://www.bis.homeoffice.gov.uk/aboutu ... iabulgaria.

(***) The dependant of a British national can only apply for an EEA family permit if the British national is returning to live in the UK and can demonstrate they have exercised an economic treaty right in another Member State (i.e. evidence of employment/self employment).

This must be the only country in the Union that DENIES the initial right of residence of three months. So much for my protests.

I think the European Commission will enjoy this "new" version of the site.

[Richard66]

More official communcation from the British Embassy in Rome:

Confusion between EEA and Schengen. Also they seem to believe that the European Commission's interpretation is solely MY interpretation:

They say that residence cards issued by other states means Schengen residence cards.

That the EEA family permit is needed for the CARRIER and not for the Immigration officer. Interesting:

We could gey in without visa or residence permit, but we need to show the visa to the airline check-in staff.

The list of documents they ask:

(...) all applicants are requested to provide a similar list of documents for all entry clearance applications, including EEA family permit applications. These documents help Entry Clearance Officers to verify information provided by the applicant and process applications as quickly and efficiently as possible. However, in light of correspondence on the subject from the European Commission, UKvisas are reviewing (...)guidance on supporting documentation for EEA family permit applications.

Official UK visas policy.

[Directive/2004/38/EC]

You were also concerned about the amount of documentation (...) to provide when making an EEA family permit application. I must stress that all applicants are requested to provide a similar list of documents for all entry clearance applications, including EEA family permit applications. These documents help Entry Clearance Officers to verify information provided by the applicant and process applications as quickly and efficiently as possible. However, in light of correspondence on the subject from the European Commission, UKvisas are reviewing our guidance on supporting documentation for EEA family permit applications.

Good. Slow drips of pressure will help with this.

Note that they say all applicants are "requested" to provide similar documents. They do not say that all applicants are "required" to provide it, and I suspect most non-EU family of an EU citizen will get the visa without providing any of the additional information. They are being factually correct about what they do.

[Richard66]

What I still can't get around is how to deal with the fingerprint issue: to make the application you must provide them. If you refuse, your application form might not make it to the ECO.

[Richard66]

After forwarding the letter I received from the Embassy in Rome to Solvit UK the lady there who always wrote me double-quick to tell me my wife needed a visa issued under British national law has remained strangely silent.

The chap from the airline too is lying low. I think, after reading the letter (yes, he got a copy too), he realises I could take him to court for damages. Maybe I better look into this!

I hope to send a petition to the European Parliament sometime next week. I'll send a copy to the Embassy too.

Anyway, we'll be discussing, my wife and I, all this story with the Italian ombudsman on Monday.

[mym]

Anyway, we'll be discussing, my wife and I, all this story with the Italian ombudsman on Monday.

How did it go?

[Richard66]

Mark, I feel so important, knowing you're following our story so closely!

The Italian ombudsman can only deal with Italian problems. As the Italian Border Police are in the middle of this, the ombudsman (or maybe I'd better say ombudswoman, as it was a lady with whom we spoke) said she'd write a letter to the Police, citing the Italian transposition of the Directive, where it states (also in Article 4) that if my wife's travel documents are in order (and visas are by no means travel documents) they cannot impede her to imbark to go to another EEA country. In support to my affirmations I attached:

Regulation 9, Immigration (EEA) Regulations 2006/1003;

The various e-mails from the airline man, where he says the Italian police refused boarding;

The letter from the British Embassy in Rome, that says that my wife would not be refused admittance, if she could prove her family ties with me. I pointed out the absudity that the visa is not issued for entry into the UK but for the benefit of the airline.

As for the problem with the UK interpretation of "residence card", she suggested I contact the European ombudsman, as she can not intervene.

Anyway, copies of the letter she'll send to the Police will be sent to the airline, to the British Embassy and to me.

I hope the airline will realise that being overzealous was not a good idea.

She wanted to know when we would be travelling. Unfortunately, I told her, this nonsense has made us lose the flight and my holidays.

[SYH]

After forwarding the letter I received from the Embassy in Rome to Solvit UK the lady there who always wrote me double-quick to tell me my wife needed a visa issued under British national law has remained strangely silent.

The chap from the airline too is lying low. I think, after reading the letter (yes, he got a copy too), he realises I could take him to court for damages. Maybe I better look into this!

I hope to send a petition to the European Parliament sometime next week. I'll send a copy to the Embassy too.

Anyway, we'll be discussing, my wife and I, all this story with the Italian ombudsman on Monday.

No you can't take him to court for damages.

[Richard66]

It's not what I'll do, it what he thinks I might do. It's not work going to court for this. We'd be 10 years discussing it.

[Richard66]

Solvit Italy has finally replied to me. Of course they consulted Solvit UK, so there's not need to say what the answer was:

That a visit to the UK is not covered by Directive 2004/38/EC
That my wife need apply to a visitor's visa

Shame on them!

Then they are happy the Rome Embassy concedes my wife may apply for an EEA FP. They apparently did not read the letter from the European Commission that I forwarded to them. I sent it again.

I also sent some of the conclusions of case C-291/05 (Raad van Stade vs Eind) which are now available, but not yet in English:

http://curia.europa.eu/jurisp/cgi-bin/f ... mit=Submit

[Richard66]

The Italian Ombusdman sent me a copy of the letter he sent to the British Embassy and to the Italian border police, with a copy to the airline. He reminds the border police that they cannot impede Eu nationals and their family members to travel from one EU state to another one, if all documents are in order. He also asks the Embassy to make clear if there is or not the need for an EEA FP. They remind the Embassy that the possession of the residence card (Directive 2004/38/EC) serves en lieu of a visa. The Ombudsman particularly wants to know why the Embassy wrote me telling me my wife need apply for an EEA FP only to say after that she could enter the UK without one, provided the family link were made clear. He wants to understand why the Embassy claims that my wife would need a visa not for entry into the UK, but soley to board the plane.

Oh well, as soon as lawyers revise my petition, it will be going to the EU Parliament, then to the European Commission. I hope to get this done early next week.

[Dawie]

I still maintain the Italian border police have no right to impede ANYONE's travel to ANY third country regardless of their ability to enter that country and as long as they have broken no Italian immigration laws. Their jurisdiction does not extend to deciding who can or cannot enter a third country especially one that is not part of the Schengen agreement.