EU Directive nr. 2004/38/CE!!!!!!!!!!!!

SoloOl · Post by **SoloOl** » Mon Jul 28, 2008 12:11 am

I am a Russian national, and my husband is Italian and I hold a new UK Residence Permit , Type of doc: Residence card of a Family member of an EEA National. â€œIn compliance with the EU Directive nr. 2004/38/CE holders of the above mentioned UK Residence Documentation do not need any visa to travel around the countries belonging to the Schengen territory for a maximum period of 3 months in one semesterâ€

Post by **vinny** » Mon Jul 28, 2008 12:49 am

See also E.U States that Allow Visa free Travel for E.U Fam

Tobbe · Post by **Tobbe** » Mon Jul 28, 2008 9:54 am

What have happened is that the Spaniards are claiming that the
residence card referred to in Directive 2004/38/EC must have been
issued by a Schengen country. One can argue forever about if that is
correct or not.

Could you prove your relationship? For example did you have a marriage
certificate with you? If so then they are in breach of the directive, since
they can ask for a schengen visa but they MUST issue it at the border if
you donâ€™t have it and can prove your identity and family relationship.
They must give you every opportunity to prove that you are a family
member by any means (hint, your UK residence cardâ€¦.).

This is not the first time the Spaniards are trying to be clever so please
do make an official complaint about it. Start with Solvit and you will get
the incident recorded properly and they will make sure the border guards
explains why you have been deported, use their answer against them
when escalating it to the EU commission

You should also have been given a lawyer that can appeal the decision of
deportation for up to a month. Itâ€™s more likely that an anti communist
activist in North Korea gets justice done then as a foreigner in Spain but
you need to be able to show that you have used the local justice system
as far as possible.

See the court case C-459/99 MRAX for some more information about
denying visa/entry:

http://curia.europa.eu/jurisp/cgi-bin/f ... resmax=100

Good luck

thsths · Post by **thsths** » Mon Jul 28, 2008 11:06 am

Tobbe wrote:What have happened is that the Spaniards are claiming that the
residence card referred to in Directive 2004/38/EC must have been
issued by a Schengen country. One can argue forever about if that is
correct or not.

The law is clearly phrased, and the ECJ has answered this on several occasions, so I do not see any legal doubt in this matter. And funny enough even the Spanish embassy says this: http://www.maec.es/subwebs/Embajadas/Du ... ublin.aspx

This is not the first time the Spaniards are trying to be clever so please
do make an official complaint about it. Start with Solvit and you will get
the incident recorded properly and they will make sure the border guards
explains why you have been deported, use their answer against them
when escalating it to the EU commission

I agree, SOLVIT is probably the best way to start. The OP should be aiming for two things: damages (some are easy to assess, others are more difficult, but it should be quite a bit) and the attention of the European commission.

You should also have been given a lawyer that can appeal the decision of
deportation for up to a month.

Good point. Does the deportation have any negative effects in the future, for example for other Schengen states? I think she is still covered by the right of free movement in the EU, but it is worth checking that out.

Tobbe · Post by **Tobbe** » Mon Jul 28, 2008 11:46 am

Does the deportation have any negative effects in the future, for example for other Schengen states? I think she is still covered by the right of free movement in the EU, but it is worth checking that out.

Spain will be informed of any applications made for Schengen visa in the
future and will be able to protest against it. It is very unlikely that they
will protest against it since they can only refuse visa under very few and
strict circumstances. If they do protest the country that is issuing the
Schengen visa doesnâ€™t need to listen to it. I got a letter from the Spanish
embassy in London saying that it is not an issue.

The law is clearly phrased, and the ECJ has answered this on several occasions, so I do not see any legal doubt in this matter.

Do you have any URLs to any court cases showing that? Iâ€™m in the same
situation as the OP having had my wife kicked out from Spain in almost
exactly the same situation and would be very interested in reading about
something about that as it would make our case even stronger.

SoloOl · Post by **SoloOl** » Mon Jul 28, 2008 3:45 pm

He didn't even ask us to do that! He said if my husband was Spanish they would let me in! But it says "EEA National" not "Member of Spanish, French, German, Italian family"... And Italians have absolutely same rights on the territory of Spain as Spanish do. Tom. will go to the Spanish Consulate in London but in case if they say they don't accept this directive I really don't know what to do. It was so much easier with the normal Schengen visa... But now I have to check with all the consulates if they accepted this directive or not... Disaster - I have to book an appointment 2-3 months in advance. In Ialian consulate they said they can't put me a Schengen as I already have it in my New res.permit and they accepted the directive. So stupid. To my mind all the Schengen countries should or accept or refuse it...
Also, a friend of mine is in same situation but she's being to Barcelona, Spain and they let her in.

SoloOl · Post by **SoloOl** » Mon Jul 28, 2008 3:53 pm

Thank you so much for yr help!
This belongs to the Spanish consulate in Ireland but I think it should be the same everywhere then? :
Family members of eu citizens

According to Directive 2004 / 38 EC possesion of a valid EU Fam residence card shall EXEMPT family members of EU citizens from the visa requirements, providing they accompany or join them. In any circumstances, EU citizens family membersâ€™ applications will be processed with due priority.

http://www.maec.es/subwebs/Embajadas/Du ... ublin.aspx

Will print it and will bring it to the consulate in London tom.

Tobbe · Post by **Tobbe** » Mon Jul 28, 2008 4:19 pm

When you get there donâ€™t back down. They will try to get you to leave
without handing over your complaint (at the end of the day, it is their
job); it took me about 15 minutes to argue with them to let me see the
consults secretary to hand over my complaint.

Even the secretary will try to talk you out of handing over the complaint,
one of her arguments will most likely be that the EU family residence
card must have been issued by a Schengen country to substitute for a
Schengen visa. If thsths or any one else knows of a court case saying
that is not true then that would help a lot.

Make sure you ask for a receipt or she will put it directly in the bin and
never get back to you!

Good luck tomorrow and don't let them bully you into not handing over
the complaint. Let us know how it went and how they dismissed the
statement on the Irish website.

SoloOl · Post by **SoloOl** » Mon Jul 28, 2008 5:09 pm

Found on the forum:

tensailee wrote:http://www.europa.eu/scadplus/leg/en/lvb/l33152.htm

A friend of mine (non-EEA) just went for a holiday with her Spanish husband in Spain. She holds a Residence Card based on her marriage to an EEA national whom lives in the UK. She did not apply for a Schengen visa, and all she had with her was her passport and the printout of the above document in both English and Spanish (just in case).

She got successfully admitted at a Spanish airport!!

Reading the summary of the Directive 2004/38/EC above, it states clearly that:

'Right to move and right of residence for up to three months

....Family members who do not have the nationality of a Member State enjoy the same rights as the citizen who they have accompanied. They may be subject to a short-stay visa requirement under Regulation (EC) No 539/2001. Residence permits will be deemed equivalent to short-stay visas.'....

How could I have not noticed this? Why did I keep applying for Schengen visas when I didn't need to? Or, are there any hidden catches? Is this a general case for all countries implemented this Directive?

Will appreciate your opinion.

Very nice, no? It's not a law it's sort of a roulette...

charles4u · Post by **charles4u** » Mon Jul 28, 2008 9:06 pm

This is the Issue soloOL....
Most EU country will surely not deport u back they can only delay u, atleast show them ur FAMILY MEMBER CARD or a MARRIAGE CERTIFICATE.

Most of the other EU countries r now accepting the law of accepting FAMILY MEMBER CARD equivalent to Visa and I never heard of anybody being deported they can only be delayed, but the same EU FAMILY RESIDENCE CARD are not being accept by UK cus u will still need a EEA FAMILY PERMIT which is not surpose to be.
I dont blame them for not accepting u in cus with Spanish FAMILY RESIDENCE CARD u cant go to UK and u will still need a VISA even if they said its not cus its called EEA FAMILY PERMIT.

It is said by some EU countries and even in the EU LAW that they dont accept UK residence card as visa-free nor can there citizens travel to any EU country with there ID bcus UK is not FULLY in the EU.

We all know UK dont accept other EU FAMILY MEMBER CARD as visa-free so why would any EU country accept there UK FAMILY MEMBER card to enter another EU as visa-free....thats totally impossible

Other cases I have heard was just a delayment and latter let them in, almost all the EU member states are now aware of this and there r lesser delays..

THIS IS MY OWN PROBLEM..........

First... this is the best immigration discussion forum ever, I read all the discussions from everybody and its so interesting.
I fall into this category too, I am married to a Romanian citizen and she is presently working in UK, am still here in Romania waiting for my FAMILY MEMBER RESIDENCE CARD.

When I first got to Romania, after my marriage with my spouse she wanted me to come with her to the UK instead of waiting so long for the FAMILY RESIDENCE CARD and come back to apply for the card December period. So we applied for an EEA FAMILY PERMIT at the UK embassy here in Bucharest Romania but I was refused saying I was refused an American visa once, the age distance(10yrs older than me) and some other reasons I found not sensible cus she was asking for the phone bills of the calls we made with each other for 4 months b4 meeting in Malaysia after showing her(consular) couple of letters and emails we sent to each other.

Anyway I made an appeal and they just sent me my appeal as being recieved and will take almost 3 months b4 the hearing(29th sept). So I want to know if I can still re-apply again and what should I do and what other proves can I provide.

I read here about someone saying going direct to UK with the spouse without EEA FAMILY PERMIT because it the law when having a FAMILY RESIDENCE CARD u can go together or meet ur spouse in any EU country including UK. So maybe I can go with my wife without a visa and I can get it at the point of entry ...

Pls Kindly assist me on any infos...

SoloOl · Post by **SoloOl** » Mon Jul 28, 2008 9:24 pm

The thing is that there is a Directive the EU invented "to male our life easier" like they say! If so why don't they all follow it? And you can see what happened to me

I was feeling pretty ok with the normal Schengen visas before, but now it looks so much ridiculous!! Italian consulate can't provide me with the Sch, visa, koz I already have it in my new resid.permit. What am I suppose to do: to check if the countries of Schengen area if they accept this Directive before traveling??? It would take 5 years.

Or all of them or non... What a pain

SoloOl · Post by **SoloOl** » Mon Jul 28, 2008 9:25 pm

[quote="charles4u"]This is the Issue soloOL....
Most EU country will surely not deport u back they can only delay u

Sorry. "Delay" me where? In a prison? No, thanks

charles4u · Post by **charles4u** » Mon Jul 28, 2008 9:54 pm

I mean delay u like asking questions to be sure abt what ur saying cus not all the immigration officers knows this thing and maybe they r not given the law to read b4 starting work ..
But they will let u go after some time of question to comfirm ur status, if u can show them the FAMILY RESIDENCE CARD any MARRIAGE CERTIFICATE to prove ur bined together as a family which means u have same rights as ur Union spounce who is an EU citizen.

For UK ...am sure its more complicated cus UK is not fully parcitipating in the EU law by still requesting for an EEA FAMILY PERMIT for a family member willing to go to UK.

SoloOl · Post by **SoloOl** » Tue Jul 29, 2008 4:06 pm

So I've been to Spanish cons today.
I went to the reception and show the letter from Italian cons saying everything about this Directive. The receptionist said "Oh, this is the info from Italians so you can go only there".
Me:"There is a Directive made by the EU not by Italians" and show to him the info from the Spanish cos web site in Ireland confirming that as well. He called the lady who's dealing with visas. She said "It's so confusing this info we still need time to go in to it". Then I show my passport with the deportation stamp and said that a friend of mine has being traveling to Spain and never had any troubles. And That I've contacted the European Commission and they were fully on my side.
She apologized and gave me a Schengen visa traight away.

I can't say anything - they being nice to me in London but I still want a compensation for my flights, holidays taken and all this story. I'm not going to give up, just need to find a good lawyer to deal with my human rights:)))

Tobbe · Post by **Tobbe** » Wed Jul 30, 2008 2:30 pm

Very nice to see that the Spanish embassy staff can be polite sometimes!

You should have been given a lawyer who can deal with it and which is
paid for by the Spanish state. Didnâ€™t you see a lawyer before being
deported? At the bottom of the papers you signed there are information
about how to appeal the deportation. Just write it all into mr.Googles
language tools and translate it. If not then they are in breach of not only
EU laws but the Schengen border code as well.

SoloOl · Post by **SoloOl** » Tue Aug 05, 2008 11:19 am

I didn't see a lawyer and I haven't being given an interpreter either...

Solvit advised me to contact the European Commission and the Eur.Commission advised me to contact Solvit...

??????????????????????????????????????????????????

Ben · Post by **Ben** » Tue Aug 05, 2008 11:42 am

SoloOl wrote:Solvit advised me to contact the European Commission and the Eur.Commission advised me to contact Solvit...

??????????????????????????????????????????????????

Solvit can be useless, at times. Note that you should be contacting Italian Solvit, not Spanish / British.

Tobbe · Post by **Tobbe** » Tue Aug 05, 2008 12:17 pm

Are you sure you do not have any information at all about how to appeal it?

In the schengen handbook you can read:

â€œ6.7 All persons to whom entry has been refused have the right to appeal in accordance with
national law. A written indication on procedures for appeal and on contact points able to
provide information on representatives competent to act on behalf of the third-country
national must be given to the third-country national concerned. â€œ

â€œ
6.8 If a person enjoying the Community right of free movement is refused entry, the border
guard must always provide the person with a written decision. The decision must be
drafted in such a way that the person concerned is able to comprehend its content and the
implications. The decision must also include precise and full indication of the public policy
or public security grounds on which the decision taken is based, unless this is contrary to
the interests of State security. The decision must also specify the court or administrative
authority with which the person concerned may lodge an appeal and the time limit for the
appeal.â€

charles4u · Post by **charles4u** » Thu Aug 07, 2008 10:31 am

Hello all, I am married to a Romanian and she works in the UK and I wanted to join her there but I was refused the visa saying we met too soon to get married according to the consular officer and just bringing out things just for her reason to refuse like the phone call bills of the calls we made b4 meeting..

So am still staying in Romania but she is in the UK, we dont know what to do, we thinking of her cancelling her contract so we can go somewhere else maybe Netherlands, but the problem is that she signed to work for the company for 2 yrs..

Can anybody advice me on what I and my wife can do cus we just dont know what to do....UK and IRELAND is so much too proud and makes things worst even messing with the EU law that says a Family member with a FAMILY RESIDENCE CARD can travel with the spouse to any EU country if accompany or joining the spouse.

Pls I need a serious advise.

brownbonno · Post by **brownbonno** » Sun Nov 09, 2008 4:38 pm

SoloOl wrote:I didn't see a lawyer and I haven't being given an interpreter either...

Solvit advised me to contact the European Commission and the Eur.Commission advised me to contact Solvit...

??????????????????????????????????????????????????

Get a UK lawyer to help you write to the spanish authority.No need sitting back

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EU Directive nr. 2004/38/CE!!!!!!!!!!!!

EU Directive nr. 2004/38/CE!!!!!!!!!!!!

Could you prove your relationship?