Stuck in Spain

[alan and oscar]

Would it not be better to get on with your life and put this down to experience? Apply next time for a schengen visa - dead easy to do if you choose your embassy and all you have to pay for is the cost of postage. (about £10). There is enough ambiguity in the Directive to mean that the idea of visa free travel for visa national partners of EC citizens has not yet arrived. There will need to be an amendment to the directive or judicial clarification at a very high level. Please do not rely on what some may say on this board is clear in the Directive and take terrible risks with your partner's immigration status. (I am not sure how the 'deporting' will affect the application for a shengen visa - hopefully it won't) Nothing is clear.

If your wife had a residence permit from one of the schengen countries, then she would have been allowed in for that reason, but this is nothing to do with the directive or the spanish law which implements it, but is by way of confirmation of the position that had existed for a number of years prior to these laws. Unfortunately, UK is not part of schengen so she really needs a visa to be safe.

[Directive/2004/38/EC]

Please do not rely on what some may say on this board is clear in the Directive

Very true!

and take terrible risks with your partner's immigration status. (I am not sure how the 'deporting' will affect the application for a shengen visa - hopefully it won't) Nothing is clear.

This I disagree with. She was entering Spain in the company of her EU citizen spouse and with a marriage certificate. The ECJ has been very clear that the member state must let her in. That is now codified in the Directive.

Most people will not be willing to challenge illegal actions like this. But some people will be.

[Robertadt]

I just wanted to point out what they say on the Spanish consulate official website
http://www.mae.es/Consulados/Londres/en ... e+visados/

"In the case of the spouse, parent or descendent of a citizen of the European Union, Norway, Iceland, Liechtenstein or Switzerland, he or she need only apply for a visitor’s visa if he or she wishes to live in Spain and is subject to this requirement (Attachment I.pdf). Otherwise he or she will not require any type of visa to live in Spain."

What do you think of this? Does it make sense? Is it clear? Is it real? And does it apply also for visiting or only for living (which would be ridicolous)?

[Tobbe]

Would it not be better to get on with your life and put this down to experience? Apply next time for a schengen visa - dead easy to do if you choose your embassy and all you have to pay for is the cost of postage. (about £10). There is enough ambiguity in the Directive to mean that the idea of visa free travel for visa national partners of EC citizens has not yet arrived. There will need to be an amendment to the directive or judicial clarification at a very high level. Please do not rely on what some may say on this board is clear in the Directive and take terrible risks with your partner's immigration status. (I am not sure how the 'deporting' will affect the application for a shengen visa - hopefully it won't) Nothing is clear.

If your wife had a residence permit from one of the schengen countries, then she would have been allowed in for that reason, but this is nothing to do with the directive or the spanish law which implements it, but is by way of confirmation of the position that had existed for a number of years prior to these laws. Unfortunately, UK is not part of schengen so she really needs a visa to be safe.

I have already carried on with my life but with a new hobby project. To be honest this thing has no real effect on our life and only takes up a few minutes here and there so it doesn’t really matter if petitions take years. I learn a lot in the meantime

In this case the only ambiguous part is if a certified copy of a marriage certificate and a stamp clearly stating that my wife is a family member of an EEA national (it states my name) is proof enough of conjugal ties. If it isn’t then I guess if you loose your original marriage certificate you must divorce and get married again to enjoy freedom of movement. I personally find that a bit ridiculous. Surely it must be better to ask the European parliament to clarify what the directive means then to let some random border guard make a decision about it? At the end of the day there will never be any amendments or clarifications if nobody raises their hand and asks for them.

Sure I was naive, thinking that the residence card described in the directive was valid for all EEA countries and not only up to each country to decide. But that doesn’t give the border guards an excuse to treat my wife the way they did. If they got back to us and said “Fair enough, our mistake. It will not happen again but could you please try to bring a visa next time just to avoid confusionâ€

[Directive/2004/38/EC]

Any feedback or delvelopment on the Spain side?

[johnsienk]

<original post deleted>

[Tobbe]

I have seen a few similar cases on the forum over the past few months
and I thought, long time no update!

It has turned into a waiting game as was expected. Two different courts
has delayed and refused to touch the case but we now have a court date
in “Juzgados de lo Contencioso-Administrativoâ€

[86ti]

Until then we can just sit back and enjoy the fact that many
countries has now turned free-visa into visa-free travel even for holders
of non-schengen EEA family residence cards. What are the odds that
Spain goes down that route to before our court date?

\

Well, it is interesting to see that several countries appear to have switched just this year.

I recently lodged a complaint against the Austrian Foreign Ministry with Solvit Austria. They have sent a query to the Interior Ministry (the guys that actually matter) two weeks ago. I am very 'excited' to see what their response will be. Our interior ministry (conservative hard-liner) was talking something about 'law and order' when she assumed her position recently. Let's see if that also includes EU law.

[Richard66]

But, Tobbe, do look at other posts (advice I should take myself, now and then!). Look at this one:

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

Where it says:

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 members’ applications will be processed with due priority.


You'll find this in this discussion:

http://www.immigrationboards.com/viewto ... sc&start=0

[Tobbe]

That’s what they say in Dublin. In reality it doesn’t work like that as we
can see from numerous posts here, last one being SoloOl. The Spanish
implementation (Real Decreto 240/2007) of the directive also
specifically states that it’s only permits from Schengen countries that
allows visa free travel.

Real Decreto 240/2007:
“Family members of an EU citizen who produce a valid residence permit
issued by one of the States implementing in full the Schengen agreement
of 14 June 1985 concerning the gradual abolition of controls at common
borders and its implementing rules shall be exempt from the requirement
to obtain the entry visa and shall not be required to have their passports
stamped when entering or leaving the country.â€

[Rob Van Dam]

[quote="Tobbe"]Sorry I'm just not used to which word to use for which thing, here is what HO told me.

"Dear Sir,

Thank you for your enquiry.

If your Wife has been issued stamp in her passport upon her application
EEA2. She has been issued With\ UK Resident Card to remain in the UK
inline with you to work live and exercise her treaty rights as a family
member of EU national.

Please be advised that her Resident card is only valid for UK to remain
and or enter. If she wises to travel to any other EU countries. She will
need to contact country's Embassy to obtain visa for that country.

UK visa stamps including Resident Permits images are available on the
Home Office website under Prevent Illegal Working link.

Please click on the link below that will take you to the Home Office
website.

http://www.bia.homeoffice.gov.uk/lawand ... lworking/y
ourdefence"


I have also got an answer from the Signpost service saying that Spain does not need to issue a Visa at the border control. We should have had it from the beginning. They pointed me to [url]http://ec.europa.eu/justice_home/fsj/fr ... try_en.htm[/url] where it says "This visa should be granted free of charge and without undue formalities by the competent consulate authorities.". Clearly I should have sorted out a visa at the consulate here in London then.[/quote]

What a dreadful reply from our own Home Office. Full of basic spelling and schoolboy grammar mistakes. But then that's what we get from a Home Office and BIA which hires people who have only just come off the boat themselves!!

[Richard66]

Let's see if the daily fine to be paid into the EC coffers when the ECJ decides against the UK will make those Sons of Guns change their minds and start to understand EU law.

[SoloOl]

The old bold man in Spain might be correct.. Bolivia is a Schengen visa national nowdays according to a few modifications of 539/2001. So the questions is if they can demand that my wife applies for a visa BEFORE we travel and refuse to do it at the border control.

NO. The bold man in Spain is wrong. Your wife has a right to travel with you, and you were able to prove to them that you were married.


That is really outrageous! I hope you have the patience to fight this. I would suggest you get them to reimburse you for all your costs and give you an apology, though aim higher (like having the border guard fired).

Definitely contact citizens signpost. And contact Solvit now to get that started.

And most definitely read through the material about Directive 2004/38/EC. The Spanish have most likely broken the law in this case

From Directive 2004/38/EC

Article 5 - Right of entry
4. Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence.

All these is not true unfortunately. I was deported from Spain (and I am in absolutely same situation) and not Solvit, not European Commission couldn't help me (pls read the other topics about this stupid Directive). I've been provided with the Schengen visa at the end. But no tickets refund, no compensation...

[86ti]

All these is not true unfortunately. I was deported from Spain (and I am in absolutely same situation) and not Solvit, not European Commission couldn't help me (pls read the other topics about this stupid Directive). I've been provided with the Schengen visa at the end. But no tickets refund, no compensation...

It is true and the Directive not stupid. On the contrary, it gives you more rights than you would have without it.

Your and other's problem is that some member states don't correctly apply this EU law. No reason to blame the Directive. Blame Spain (and others)!

[charles4u]

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.

Can I now go to UK with my Family residence card of Romania EU?.

[Tobbe]

Long time and no update!

Solvit gave up in the end, what can they do when one party isn’t the slightest interested in solving the problem? My EU petition ended up with a “yeah, that seems to be in breach of the directive but we can’t be arsed to do anything about itâ€

[Tobbe]

Small update.

We have had the hearing.

One would have thought that by now they would have figured out that we will not go away and admit their wrong doing. We have not even asked for the flight tickets back or any other damages. The only thing we have asked for is to have the deportation decision reverted and the SIS information to be deleted. (I am still curious about how they will remove the stamp from the passport).

But no! They still stand firm and objects “stronglyâ€

[Directive/2004/38/EC]

Good for you both for following through! But why not ask for your costs back (flight and lawyer) as well as damages?

If I was a lawyer for the government, I would say you likely do not exist as well. It is a simple tactic, but probably effective in most cases. If you actually did not exist, then your wife has no right to visa free entry. But if you did exist and they force you to come to spain to prove that you exist, there is a good chance that you will just say "this is not worth the hassle" and abandon the case. Their problem is then solved.

[Tobbe]

The lawyer is paid through legal help in Spain, so even if we loose we have at least spent some of their money . We might be able to ask for flight tickets etc later on if we win but it is more important to put things right again and maybe even to get them to change RD240/2007 to reflect the directive properly. It would probably take another 18 months to get reimbursed anyway.

They need to come up with some better tactics then that to get rid of us. We already got flight tickets booked (and a Schengen visa) and will combine it with a long weekend holiday. Bring on the sun!

[Tobbe]

The results are in… The bold man was correct, I do not exist and therefore my wife (who isn’t married to me anyway) needs a Schengen visa before travelling. As she didn’t have a visa they were right in deporting her.

[Obie]

The results are in… The bold man was correct, I do not exist and therefore my wife (who isn’t married to me anyway) needs a Schengen visa before travelling. As she didn’t have a visa they were right in deporting her.

What an outrageous ruling Tobbe. Certainly justice denied. Sorry Tobbe.

It seem like one of these Kangaroo courts.

If your decided whats the next step. Any rights of Appeal

[Directive/2004/38/EC]

You thinking of flying again without a visa? With some witnesses?

[Tobbe]

Without being able to add anything “newâ€

[Tobbe]

Minor update

Even though it is not directly relevant to our case anymore as I am only an imaginary husband inside the mind of my wife but my complaint about Spain excluding UK residence cards under 2004/38/EC might be moving on. The EU ombudsman sent me a copy of a letter he has sent to the president of the EU commission. The letter asks the question:

“The Commission confirmed to the complainant that the Kingdom of Spain had incorrectly transposed the Directive 2004/38/EC. Could the Commission please (i) specify what action it has taken or intends to take concerning the issue raised by the complainant or (ii) explain why it considers that no such action is needed.â€

[86ti]

Anyway, if they do force Spain to recognise UK issued residence card it might be helpful to get our appeal heard and hopefully stop these things happening ion the future.

Spain has already amended the relevant part of their implementation, see http://www.boe.es/boe/dias/2009/07/23/p ... -12207.pdf