Applying free movement directive on TOURIST VISA

[Caravel88]

Print this page from the official EU website:

https://europa.eu/youreurope/citizens/t ... dex_en.htm

It says in plain language everything, including:

Arriving at the border without an entry visa

It is always best for your non-EU family members to be well informed in advance and have all the necessary documents before starting their journey.

However, if they arrive at the border without an entry visa, the border authorities should give them the opportunity to prove by other means that they are your family members. If they manage to prove it, they should be issued with an entry visa on the spot.

The specific directive is 2004/38/EC.

https://eur-lex.europa.eu/legal-content ... 32004L0038

You can download and print it in English as well as Finnish.

Chapter II (2) Article 5 is what you need to show them. (if I were you, I'd highlight it)

Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport.

No entry visa or equivalent formality may be imposed on Union citizens.

When are you planning on travelling?
Maybe choose a time when the border is not so busy.

Also it would be valuable for the forum if you let us know how everything goes and your experiences.

Caravel88 thank you for such a valuable information on time. It will be very helpful. Any specific directive you would recommend to print?

[Sour cream]

Most definitely i m going to keep giving updates until the end but as i am going through internet for the mode of transportation and cannot find anything going to border. All of buses n trains going to Helsinki which might even not let us board(according to their websites). Talking about ferry the passport control will be st petrsburg of finnish authorities? If yes then even they will let us board.... The question is appearing at border, not appearing at bus stand or ferry station! What are the advices here guys,
Lets go step by step with your help...

[gokulatti]

@mgb, I am really lost in trying to explain you as clearly as possible, I am completely aware of the grounds of refusal for a directive 2004 entry visa application. It looks like you are not even understanding what I am saying maybe because of language barrier. too bad, makes no sense to give any weight to what you say for obvious reasons.

@sour If you do get to the land border on any of the member state, you will fall under directive 2004/38 ( first 3 months should be unconditional) and your family member SHOULD be allowed in with an entry visa subject to of course grounds which can be refusal based on public health, policy, security and fraud.

So make sure you have documents necessary. It is essentially similar (at least on paper) to taking all the documents that you would normally supplement an entry visa for a TCN at the respective diplomatic mission. Atleast at the land border, you might have a face to submit the application to and try to fight your way in if their is struggle. I have personally not heard of a similar situation on this forum but google might be able to help.

Unconditional stay (first 3 month in any MS): the immigration officers are not allowed to ask in depth on how you are going to exercise treaty rights, how are you going to support you and your family member ( these are done when an application for RP is applied for the TCN). they are only allowed to check the identity with passport, Marriage certificate, checking under SIS (security reasons), marriage of convenience etc. no need for proof of travelling together or joining obviously in this situation.

[Sour cream]

@gokulati thank you for your kind advice. Well we are prepared for this journey, we have a 3 year old son which should be enough to take out “abuse” factor from any possible refusal.

[gokulatti]

I wish you all the best please do update this thread.

[mgb]

@mgb, I am really lost in trying to explain you as clearly as possible, I am completely aware of the grounds of refusal for a directive 2004 entry visa application. It looks like you are not even understanding what I am saying maybe because of language barrier. too bad, makes no sense to give any weight to what you say for obvious reasons.

I guess you have problems in understanding.
If a application is admissible it can only be approved or refused.

[Sour cream]

Another curiosity is this that previous refusals are going to be any obstacle on the border, i mean border guards will definitely know about previous refusal which was unfairly reasoned marraige of convenience. That refusal actually brought me here but i m afraid it is going to disturb my plans? What you guys say about it?

[Caravel88]

Especially if you have been previously refused a Schengen visa;
I'd say that instead hiding the facts and not explaining the full the situation;
and just saying here:

"I'm an EU citizen in Russia with a Russian visa with my NON-EU spouse who is also in Russia with a tourist visa. How to get a Schengen visa? Embassies say on the phone they won't accept our application."

Perhaps you should have provided full details of your situation from the beginning to get the best of help from people here, which would include:

- Your nationality
- Your spouse's nationality
- Previous Schengen applications (embassy + location + exact decision)
- Actions taken after the decision against the decision
- Current situation

all these details are still a mystery. plus, we still don't know which embassy you "contacted" told you you couldn't apply there. I even quoted you German embassy provisions in Russia which tells you you can indeed apply.

Another curiosity is this that previous refusals are going to be any obstacle on the border, i mean border guards will definitely know about previous refusal which was unfairly reasoned marraige of convenience. That refusal actually brought me here but i m afraid it is going to disturb my plans? What you guys say about it?

[Sour cream]

I really appreciate your help here but no offence I am hiding no facts here, are you trying to say previous refusal are going be an issue ? When we are traveling together? I would really like to know your words “Especially if you have been previously refused a Schengen visa;” meaning? You are trying to tell me something I should have known earLier?

[gokulatti]

@mgb please use some time and read the document you linked yourself-
https://ec.europa.eu/home-affairs/sites ... 620_en.pdf

2.8. Can a consulate accept an application from an applicant not residing in the
jurisdiction of the consulate?
Legal basis: Visa Code, Article 6
As a general rule, only applications from persons who reside legally in the jurisdiction of the
competent consulate (as described in points 2.1-2.5) should be accepted.
However, an application may be accepted from a person legally present – but not residing - in
the jurisdiction of the consulate where the application is submitted, if he can justify why the
application could not be lodged at a consulate in his place of residence. It is for the consulate
to appreciate whether the justification presented by the applicant is acceptable.
"Non-residing applicant" means an applicant who resides elsewhere but is legally present
within the jurisdiction of the consulate where he submits the application.
"Legally present" means that the applicant is entitled to stay temporarily in the jurisdiction on
the basis of the legislation of the third country where he is present either for a short stay or
EN 24 EN
when he is allowed to stay for a longer period of time while maintaining his permanent
residence in another third country.

which is what I said in my above post.

It is okay to accept you cannot be right all the time. No one person knows everything.

@sour if your visa was indeed refused for marriage of convenience, this WILL pop up on the system, make sure you give proof otherwise. unless this is done you will not be issued an entry visa. the burden of proof was on them how did they prove it was in deed MoC if i may ask ?

[Sour cream]

@gokulati i must say you are very well informed person about these directives. Well in thier refusal they didn’t explain though just written MoC. And that refusal was more than a year ago. gokulati we have a son who is three years old, plus proof of traveling together n plus proof of living together from uk,plus marraige is registered in and legalised from his and my country and we are traveling together to member stat, still there should be doubts about MoC? For a normal individual it is really strange if still rises a doubt of MoC.

[gokulatti]

Having a child together just makes your case so much stronger. Even if they accuse you of MoC, you will also fall under secondary beneficiary of directive 2004/38 (article 3) under durable relationship having a child together and also living together in UK, please take all the proof and submit and fight for your right of entry. If you go full guns loaded they might just give you an entry visa and from there things just get so much easier once you are inside.

[Sour cream]

@gokulatti thank you so much for the much needed motivational words... means alot! Thank you again

[Caravel88]

Said child is three, born about two years prior to the aforementioned refusal.
If you live in the UK legally, getting a Schengen visa is a mere formality (let alone one under 2004/38 most of which are issued for 2-5 years by embassies in the UK easy).

Also if the OP lived in the UK, could have even applied for Poland under 2004/38 which applies the directive without additional hindrance whatsoever.

Given the amount of unknowns in this case I am not sure what exactly is going on.

However, no embassy would "just" say "MoC" and refuse without justification (against the Directive therefore null), and regardless of the justification, all OP had to do was to contact Solvit which would have intervened and fixed the issue by now (given that it's been over a year since the refusal).

The reason I'm saying all the above is, if I was a member of the Finnish border force facing this case I would personally do my best to avoid dealing with it given that:

- The OP applied for a visa
- Got refused on one of the refusal grounds
- Did not appeal, justify their case, or solve the problem via Solvit
- Did not apply for a Schengen visa before coming to the border

The border force can refuse to issue an entry visa on the same grounds by handing the OP exact same refusal letter from the embassy (not appealed or fixed after all).
And the worst thing is this can happen after waiting for hours at the border if not spending an entire day.

If you were the border guard, what would you do?

Having a child together just makes your case so much stronger. Even if they accuse you of MoC, you will also fall under secondary beneficiary of directive 2004/38 (article 3) under durable relationship having a child together and also living together in UK, please take all the proof and submit and fight for your right of entry. If you go full guns loaded they might just give you an entry visa and from there things just get so much easier once you are inside.

[Caravel88]

You are hiding the facts. I made a short list above of the unknowns in this case.
Now that you mentioned you lived in the UK AND got refused based on one of the criteria of the directive, there seems to be even more.

And yes: I am saying that absolutely 100% the previous refusal is going to be an additional issue if not appealed or corrected through official channels.

I really appreciate your help here but no offence I am hiding no facts here, are you trying to say previous refusal are going be an issue ? When we are traveling together? I would really like to know your words “Especially if you have been previously refused a Schengen visa;” meaning? You are trying to tell me something I should have known earLier?

[Sour cream]

Ok, i will reduce your unknowns here, applied in french embassy one and half year ago after 5 months of waiting got a refusal saying just MoC, during those 5 months contacted Solvit n got an answer after months that embassy considers our application MoC bcz trip for marraige to non eu spouce ‘s country was very short(actual reason for reducing the trip duration was sickness of child). Appealed in the commission of appeals after hiring an expensive lawyer got a negative decision and further proceeding to tribunal court, the court denied appeal request which took almost 6 months. So here we are. I have everything in documentation of all these unfair refusals. Coming to the point what will you think as member of border guard after these knowns ?

[gokulatti]

Please also provide the UK part of the history if you do not mind and also what is the child's' citizenship status now? What documents did you show to proof it is the child of the TCN as well.

To prove it is not a marriage of convenience, you need to prove that you both knew each other before marriage ( possibly while living in UK) pictures correspondence, financial etc. helps so that the relationship is genuine. Having a positive immigration status based off marriage when a genuine relationship already exist is okay and not the other way around.

There are a lot of EC judgments on this that you can google. The key is to prove that the relationship is genuine prior to marriage ( I am assuming it is not an arranged marriage here) And also a child born off this relationship can a key ingredient to give the TCN national seperate rights not based off marriage but through the child IF TCN HAS custodial rights for the child if applicable.

[mgb]

@mgb please use some time and read the document you linked yourself-
https://ec.europa.eu/home-affairs/sites ... 620_en.pdf

Is it so hard to understand that EU community law overrule schengen law?
The section you refered to is not applicable for a family member of a eu citizens.
Section 3.8 in Part III has preference.

[gokulatti]

Community law (under directive 2004/38) instructs an entry visa for TCN under EC 539.

What are you blabbering about doesn't apply to family member of eu citizen ( part 3 says specific rules to be applied for family members, specific does not mean the only rules it's an additionally set of instructions).

Being a family member of an eu citizen does not give you horns and wings to fly in to a MS as you wish with your imaginery, made up, assure arguments with no concrete backing, You still need to follow the law and instructions as laid out.

Just STOP trying to make absolutely made up arguments just because you are stubborn and cannot accept reason and rationale.

WONT BE REPLYING TO YOU ANYMORE in this thread as it is drifting away for the OPs posts, enough has been said above, it is up to people who read it to decide what they infer from it.

[Caravel88]

1st: (question)

Embassies have 2 weeks to process applications under Directive 2004/38.
They are bound by the directive to justify for taking longer.

Question: What justification did they give you at that time for taking 5 months before refusing?

2nd: (question)

Although it may not appear relevant, and although they should not be doing this, the embassies take into consideration the following for all applications:

- Nationality
- Full immigration history
- Immigration history with France
- Legal immigration status when you got married
- The duration of the relationship (inc., before and after the marriage)

If your husband had any issues at any time with any country (especially an EU state, and especially with France), this would have affected their decision.

Question: Is your husband from a "hot" country? Did your husband have any immigration / visa issues with any EU country? These include visa refusals, illegal stay, illegal entry, illegal residing during marriage, applying for a visa shortly after marriage, etc.

3rd: (solution #1 -> Visa as Father of EU child)

Since you are an EU citizen, you child must have an EU nationality.
I can think of a very very rare case where this would not be possible.

Directive 2004/38 also covers children as family members and they can not say "MoC" for a child.

Solution steps:

1st -> Your husband should go to his mystery land.
2nd -> You move to any EU country including Poland with your EU citizen child (since you exercised your right of free movement)
3rd -> Your husband applies under the directive to be with the child (nothing to do with marriage, past refusal irrelevant)

4th: (solution #2 -> Visa as Spouse)

Since it's been over a year from the initial rejection you can and should apply for a visa before attempting to cross the border where given the facts chances are you will not be let in (no positive outcome from your struggle with Solvit + courts)

Solution steps:

1st -> Contact an EU embassy in Russia and request an appointment. Tell them you have an engagement in Russia and you won't be back in country of origin but you must visit the EU country and give justification. They will give you an appointment
2nd -> Prepare all the documents the time you met (photos, addresses, utility or council bills under the same name, school etc. if attended together, copies of travel tickets, photos, travel for marriage, marriage photos, travel back etc.)
3rd -> Write a letter summarising your relationship with references to the evidence from above
4th -> Apply for a visa both as the spouse and father of the child (EU citizen)

My advice would be to do this step not in Russia but in the mystery country of origin.

5th: (soliton #3 -> UK route, reverse Surinder Singh)

You can move back to the UK under the Directive 2004/38. Once you are in the UK with a visa issued under Directive 2004/38, you can very easily travel to a Schengen country after a short stay.

Solution steps:

1st -> Husband goes to the mystery land
2nd -> You relocate to the UK and get a job and an address (any job, any address)
3rd -> You collect all the above documents and prepare the letter
4th -> Husband applies to join you and the EU child

Ok, i will reduce your unknowns here, applied in french embassy one and half year ago after 5 months of waiting got a refusal saying just MoC, during those 5 months contacted Solvit n got an answer after months that embassy considers our application MoC bcz trip for marraige to non eu spouce ‘s country was very short(actual reason for reducing the trip duration was sickness of child). Appealed in the commission of appeals after hiring an expensive lawyer got a negative decision and further proceeding to tribunal court, the court denied appeal request which took almost 6 months. So here we are. I have everything in documentation of all these unfair refusals. Coming to the point what will you think as member of border guard after these knowns ?

[mgb]

Community law (under directive 2004/38) instructs an entry visa for TCN under EC 539.

What are you blabbering about doesn't apply to family member of eu citizen ( part 3 says specific rules to be applied for family members, specific does not mean the only rules it's an additionally set of instructions).

Being a family member of an eu citizen does not give you horns and wings to fly in to a MS as you wish with your imaginery, made up, assure arguments with no concrete backing, You still need to follow the law and instructions as laid out.

Schengen law cannot overrule eu community law.

Schengen convention

Article 134

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



Therefore part III of the visa handbook give family members of eu citizen extra rights which the normal third country citizen cannot refer to.

Btw abusive language doesn't replace arguments.

[gokulatti]

calling someone stubborn who does not rationalize and fails to understand the arguments is not abusive! what never had someone confront you for your failure to see reason based on facts?!!

take some time to understand
Directive 2004/38 ( community law) under article 5 (2)

Family members who are not nationals of a Member State shall only be required to have an
entry visa in accordance with Regulation (EC) No 539/2001 ( I believe this is what you are saying Schengen law) or, where appropriate, with national
law. For the purposes of this Directive, possession of the valid residence card referred to in
Article 10 shall exempt such family members from the visa requirement.
Member States shall grant such persons every facility to obtain the necessary visas. Such visas
shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.

See the word REQUIRED??

When a community law actually REQUIRES TCN to get a entry visa under schengen law, IT IS MANDATORY. your argument community law over rules schengen in THIS context is invalid.

[mgb]

calling someone stubborn who does not rationalize and fails to understand the arguments is not abusive! what never had someone confront you for your failure to see reason based on facts?!!

Which arguments?
Even your quoted text in your post from June 01 has the clause

without prejudice to:
(a)
the rights of free movement enjoyed by third-country nationals who are family members of citizens of the Union;

If you don't understand the meaning of the word prejudice take a look at the oxford dictionary at point 2 Law:

https://en.oxforddictionaries.com/definition/prejudice

[gokulatti]

Okay, let us go by your text book definition of oxford 'prejudice' i.e. ''Law: Cause harm to (a state of affairs)''
How is asking OP to apply the entry visa from the embassy where he/she has jurisdiction (country of residence or origin) causing harm to his/her rights of free movement?.

I also said OP could apply for entry visa even if he/she is not in the jurisdiction of the embassy but HAS PROPER JUSTIFICATION (for example a stateless person or fearful of life in country of origin etc.) which I already quoted from your link as follows :

2.8. Can a consulate accept an application from an applicant not residing in the
jurisdiction of the consulate?
Legal basis: Visa Code, Article 6
As a general rule, only applications from persons who reside legally in the jurisdiction of the
competent consulate (as described in points 2.1-2.5) should be accepted.
However, an application may be accepted from a person legally present – but not residing - in
the jurisdiction of the consulate where the application is submitted, if he can justify why the
application could not be lodged at a consulate in his place of residence. It is for the consulate
to appreciate whether the justification presented by the applicant is acceptable.
"Non-residing applicant" means an applicant who resides elsewhere but is legally present
within the jurisdiction of the consulate where he submits the application.
"Legally present" means that the applicant is entitled to stay temporarily in the jurisdiction on
the basis of the legislation of the third country where he is present either for a short stay or
EN 24 EN
when he is allowed to stay for a longer period of time while maintaining his permanent
residence in another third country.

Take some time WITHOUT PREJUDICE to read the above and help yourself to bring reason. The quoted text answers your question without doubt.