Spouses of Irish citizen do not qualify for EU Treaty Rights

[Ako Dong]

I am an Irish citizen, and my wife is non-EU living in Ireland for about two years. We recently got married, so we applied for a EU4FAM residence card. The EU Treaty Rights office sent us back the application, stating that she did not qualify for EU Treaty Rights because she is married to an Irish citizen. The letter went on to say that she could apply for residence, through the 'married to an Irish National' section.

We sent off the paperwork required and swiftly got approval for Stamp 4. When we went into the Burgh Quay office they gave her a new GNIB card with Stamp 4. She was given only 12 months stamp on her passport but already had 9 months left on her employment Visa. They said that after 12 months, she may get an extension of 2 or 5 years.
We would prefer to have an EU4FAM stamp, not a stamp 4, as it entitles her to visits to some EU countries without the need for a visa.

How do you qualify for EU Treaty Rights?
or
How can she get an EU4FAM stamp?

Ako Dong

[Ben]

How do you qualify for EU Treaty Rights?

You are exercising EU Treaty rights if you are an EU citizen who is resident in an EU Member State other than his own. You are not exercising EU Treaty rights if you are an EU citizen resident in your own country.

How can she get an EU4FAM stamp?

She would have to marry an EU citizen who is resident in Ireland, but who is not Irish.

[Ako Dong]

Thank you Benifa for your swift reply.
So this means that the stamp 4 is all she will ever get. Ah well, at least she doesnt have to pay for Schengen visa.

Off topic: If she gets a say, spanish or french multiple entry Schengen Visa, can she go the various Schengen countries during the Visa time limit? I mean use for various countries

Ako Dong

[knapps]

yes, if the countries who or under the list of shengan visa she wished to travel to yeah she can. Also, you can't go on your stamp 4 to any other country you have to apply for a visa for your wife not for you prior to go to any EU country. I am the same I am married to an Eu citizen but visa is required but it is free of charge and easy to get.

[ciaramc]

But spouses of Irish citizen's who have been living outside Ireland.....ie another EU state are entitled to apply for EU1...or example I have been living in Europe for a number of years and therefore should I move back to Ireland I could apply under EU Treaty Rights!

[ca.funke]

How do you qualify for EU Treaty Rights?
or
How can she get an EU4FAM stamp?

Hi Ako Dong,
Hi all,

I got a reply from the commission, where I complained about a loosely related topic.

However, a part of the reply may be relevant here (I received the reply in German, so this is my translation):

...the ECJ expanded the rights derived from this directive to citizens, who return to the country of which they are a citizen, after they exercised their right of settlement in another country of the Union, as well as citizens who exercised their rights which are protected in the treaty without being resident in that country (for example by providing a service in another Member State, while remaining resident in the country of which you possess the citizenship).

Sounds great, but unfortunately I have no idea how to enforce this.

If it's really possible like that, move to the UK and back, and then you may be able to sue for an EU1/EU4Fam Card.

Regards, Christian

[Ben]

Ah yes, the Surinder Singh ruling..

As mentioned has been mentioned (and I forgot to mention!), Directive 2004/38/EC does apply to an EU citizen, residing in his native country with his non-EU family members, only if he has returned there (with his non-EU family members), after having (together) been resident in another Member State.

[Ako Dong]

Thanks Guys.
I applied for an appointment (via the email address they give on the automated answering machine) with the Spanish Embassy on Monday. I have not even got a reply as of yet. Sent another one today with the subject line they ask for here: http://www.maec.es/subwebs/Embajadas/Du ... ublin.aspx

I would have thought I would at least have got a reply acknowledging receipt of email. They have a phone number to ring between 10 and 12 but it was on answering today.

Maybe they are all gone back to Spain because of the weather. Lol.

Ako Dong

[knapps]

hi ako dong i just clicked on your link it says that the family member of EU who have Eu fam card do not need visa if they are traveling together...is that right but when i rang my wife country embassy they said i need visa...what the hell

[ca.funke]

hi ako dong i just clicked on your link it says that the family member of EU who have Eu fam card do not need visa if they are traveling together...is that right but when i rang my wife country embassy they said i need visa...what the hell

That's right, it's just that many member-states do not know about that:

Regulation 2004/38/EC (link) Article 5, paragraph 2 states:

### ### ### ### ### ### ### ###
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 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.
### ### ### ### ### ### ### ###

The website of the Commission(link) clarifies this as follows: (towards the middle of the page)

### ### ### ### ### ### ### ###
Possession of the valid residence card, referred to in the relevant fact sheet, issued by any Member State, exempts you from the visa obligation not only in the Member State which issued the residence card, but in all Member States.
### ### ### ### ### ### ### ###

Using this law has two practial obstacles:

• The airline has to let you board
• The border-guard has to let you pass

If the airline doesn't let you board you can claim compensation through the courts, as they are obliged to know about immigration-laws and must let you board if your papers are in order.

If you arrive to the boarder-guard at your destination, you may have a little argument ahead.

Always carry:

• both passports
• the marriage certificate
• a copy of the law, and
• a printout of the website

If your aim is to 100% reach your destination, and a compensation in hindsight while staying home does not help, it's (unfortunately) still better to apply for a visa.

I repeat my plight: Ireland and the UK should join Schengen (or leave the EU)

[Ako Dong]

Thank you Christian and Knapps,

My wife does not have a EU FAM stamp. She has a STAMP 4, because I am an Irish citizen. She also has a previous work permit and multiple re-entry Visa.

I have again tried the phone number the Spanish Embassy give, which they ask to use if you have a problem with Email. It is 01 2608066. They say to call between 10 and 12 noon. The number's voice mail tells you to use email even though the number is for those without Email. What a joke. They still have not acknowledged my email, and a second one with the subject line they ask.

I was under the impresion that EU family members were supposed to be able to get a Schengen Visa without undue delay.

Does she really have to get a Schengen Visa from the country's Embassy of where she intends to visit first. Can she say, get it from the French Embassy to travel to Spain.

Regards
Ako Dong

[Ako Dong]

The Embassy gave her an appointment for the 12th of August. This is some five weeks after we made our request.

Under the EU Directive 2004/38/EC relating to spouses of EU citizens -- Quote: The Member State of destination should grant you every facility to obtain the necessary visa, which shall be issued free of charge as soon as possible and on the basis of an accelerated procedure. In any event, even in the most difficult cases, the visa should be issued no later than a couple of weeks following the date of application.

The ‘Directive’ states it should be an accelerated procedure and should not take longer than two weeks.

According to the Spanish Embasy website she doesn’t actually require a Visa at all, since Spain has fully implemented the ‘Directive’ and border control only require marriage certificate, residence card and both of our passports. http://www.maec.es/subwebs/Embajadas/Du ... ublin.aspx Note: They do specify EU4FAM though. She only has STAMP4. Also the problem is that some airlines insist on a visa, as they are not up to date on the new requirements.

As of June though, Ryanair collect APIS information for the Spanish authorities at the point of booking online. I presume from this, if there is a problem, the booking will not will not go through.

Has anybody any experience of this?

Ako Dong