So I stewed for a couple of days and got back to work today. This morning I found a Case Law Judgement against Spain that is very relevent to our case (from 3 years ago, I might add) and decided to call the Consulate again.
I spoke to a very pleasant guy on the phone (they all seem to know exactly who we are without real explanation!) who I asked if there was an email address to send information to as my Fiance's Visa really wasn't being handled correctly. He advised me to write everything down and send a fax, and gave me the number.
I spent all afternoon and evening typing this up and translated it to, I think, pretty decent Spanish. Rachid returned about an hour ago after faxing it to the Consulate so that they have it first thing in the morning.
Re: Schengen Area Entry Visa application
Number of pages: 3
To the Entry Clearance Officer:
Please note that this and previous correspondence has been firstly written in English and translated to Spanish using a free Internet translator. I hope that it can be clearly understood and in particular, the references to relevant EU legal documents found on the internet can still be located as they have not changed. I have provided links to these documents in the Spanish language although I have personally read and understood them in English. Since they are official documents from the European Commission, Parliament, Courts and Council they are, of course, available in all European languages as you should be able to verify.
I would like to point out firstly, that one of the main principles of EU Directive 2004/38 is that each Member State has a legal duty to inform its Citizens of their rights and guide them to the correct application. This has not been done for us, and I am requesting that it is done now in rapid time. It is a travesty that I have had to spend many hours searching for and reading European Treaties, Guidelines on Border Entry, and European Case Law in order to educate Government Departments and therefore secure what is ours by Fundamental Right. I have now requested help on this matter from the EU group SOLVIT but believe that if and when they contact you, they will simply point you to the same information that I have done previously, and am doing again now.
My partner and I have made 3 visits to the Consulate and 1 visit to the Spanish Border at Ceuta in an effort to acquire your assistance and gain entry to Spain for my partner, Rachid ****. On each occasion, we have been unsuccessful. This is very clearly a violation of EU Law and our Rights derived from such.
My partner has the right to enter Spain with me, and the appropriate Spanish Authorities have a duty to facilitate this. My Rights of Free Movement as an EU Citizen have been severely disrupted and the impact to our lives has been devastating. I should not have to be explaining these laws and rights to Offices that should understand them better than I. I wrote a very clear statement regarding my complete and full understanding of our rights and the occasions on which I believe those Rights have been violated. This statement was delivered to the Consulate 2 weeks ago on November 13th, 2009 along with an application for a Schengen Entry Visa for my partner to be processed as a Non EU/EEA Family Member of an EU/EEA Citizen under EU Directive 2004/38/EC. Also included was supporting evidence of our durable relationship including family photographs. This application has apparently been ignored, as have the procedures that yourselves must follow in processing such a Visa application, despite asking that it was processed under EU Directive 2004/38/EC.
Please read carefully, the Official EU Documentation that I refer to below. This documentation is the most relevant in helping you clarify the Laws that apply to processing this Visa Application but is not limited. To me, a regular person, it is very clear that my partner and I should not be facing the bureaucratic obstacles that we have encountered to date and should already have received the Visa for my partner to enter Spain with myself and my young son to enable us to try and continue with our lives.
For your information only, I inform you that separately, I have made a formal complaint against Gibraltar with the Gibraltar Ombudsman regarding the previous refusal of my partner's application for an Entry Visa to Gibraltar which would have enabled us to marry on October 20th 2009. I fully expect a reversal of this refusal within the next week and for that Entry Visa to Gibraltar to be issued to my partner. When this Visa is issued, we will continue with our plans to marry in Gibraltar as soon as possible. However, the only difference that being married will make is that it will place my partner under Article 2 of EU Directive 2004/38/EC instead of Article 3 where he currently is placed. His Rights of Entry and Residence are the same under both Articles, but I think we can agree that Article 2 is much clearer and easier to understand.
Our visit to the Tetouán Consulate this past Monday, 22nd November, 2009 resulted in us being informed that we need to contract a Lawyer, in Spain to request that the Expulsion Order for my partner is revoked before a Visa may be issued. Please be advised that I am very aware that this information is incorrect and I am extremely disappointed in the continuous delays and misinformation we have encountered considering the Rights that we have from the Directive. Not once has anything been issued to us in writing and our Rights continue to be violated. Below, I have simplified my request and my understanding of the relevant law and provided links to EU Documents to help achieve the correct outcome.
My name is Tracy **** and I am an EU Citizen holding a UK passport, (Passport number *********) wishing to exercise my EU Treaty Rights in Spain.
I have requested that my partner is provided with entry to Spain according to the rights given to us under EU Directive 2004/38/EC.
Rachid **** is a Moroccan Citizen holding a Moroccan passport, (Passport number *******) and is my Family Member as defined under Article 3 of EU Directive 2004/38.
Under EU Directive 2004/38/EC, it is the duty of National Authorities to inform Citizens of their rights and guide them to exercise those rights effectively.
We have not been informed of our rights under the Directive and my rights and those of my partner have been violated on several occasions by Spanish Authorities over the previous 10 to 11 months even after making it very clear that we now understand our rights very well by our own efforts of finding information made available by the EU Commission.
Member State National Authorities have a duty to facilitate the entry and residence of Family Members of EU Citizens.
My Family Members as defined under EU Directive 2004/38/EC , when accompanying me or joining me to any Member State, can only be refused entry to that Member State if it can be documented that they present a current and serious threat to Public Policy or Public Security under the strict guidelines set out under the Directive.
My partner does not present such a threat and therefore should be allowed to enter Spain with me, and in fact, should not have been ejected from Spain in January 2009 which was the first violation of our rights under EU Law.
Any refusal of Entry for my Family Members must be delivered, in writing and in clear language that is easy to understand, to the applicant and must be open to appeal.
Prior convictions of the applicant are not by themselves reason to justify refusal.
Outstanding Expulsion Orders (particularly those more than 3 years old) or alerts in SIS are not sufficient to refuse entry and Authorities must investigate (rapidly) whether the circumstances that caused the Order or Alert provide documentable evidence that the applicant is a current and serious threat to Public Security or Public Policy as defined under the Directive.
It is not for us, the Citizens to revoke an Expulsion Order that was issued by Spanish Authorities prior to my partner being my Family Member. This should be done by yourselves upon receipt of our application for an Entry Visa for a Family Member of an EU Citizen.
RELEVANT DOCUMENTATION ON EUROPEAN LAW
EU Directive 2004/38/CE
http://eur-lex.europa.eu/LexUriServ/Lex ... 01):EN:NOT
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States:
http://www.ipex.eu/ipex/cms/home/Docume ... 0090313FIN
Judgment of the Court (Grand Chamber) of 31 January 2006. Commission of the European Communities v Kingdom of Spain. Freedom of movement for persons - Directive 64/221/EEC - National of a third country who is the spouse of a national of a Member State - Right of entry and residence - Restriction imposed on grounds of public policy - Schengen Information System - Alert issued for the purposes of refusing entry.
http://eur-lex.europa.eu/LexUriServ/Lex ... 503:EN:NOT
Please be advised that in the event that we are not contacted within the next 24 hours, I will be examining the procedure to denounce the Consulate for not following correct procedure when concerning a Family Member of an EU Citizen. I have suffered great financial and emotional distress due to the violation of my rights and subsequent inability to enjoy freedom of movement with my family. I will most likely be seeking compensation for this through the Spanish Courts in the future.
I wish to return with my 5 year old son to MÃ laga on this coming Monday morning as my son must return to his school and I would like my entire family to travel together, inclusive of my partner, Rachid ****. We would therefore be happy to stop by the Consulate on Monday morning in order to receive my partner's Schengen Area Entry Visa in his passport.
Regards,
Tracy ****