Dear Sir:
Thank you for getting in touch with Your Europe Advice.
Your question relates to the formalities your wife must comply with in order to travel to France or Italy. Specifically, the issue you raise relates to the marriage certificate, and the requirement to have it legalized under French or Italian law.
You mention in your post that the French require not only for the marriage certificate to be legalized; the translation must also be certified as a true translation by the Chinese Consular authorities.
Given this, you wonder to what extent this requirement is in line with EU law.
Your question raises the issue as to whether the legalization of the translation of the document in question is required under EU law. This is a question that is left to Member States to regulate, although in so doing Member States must abide by EU law (eg.Treaty law, and secondary legislation, eg. Directive 2004/38 and caselaw).
The Court of Justice of the European Union has previously ruled in Commission v Italy Case C-424/98 [2000] ECR I-4001 that the national authorities could not require citizens and their family members to have documents certified by the consular authorities of their Member State of origin and held that by limiting the means of proof which may be relied upon, and in particular by providing that certain documents must be issued or certified by the authority of a Member State, the Italian Republic has exceeded the limits imposed upon it by Community law. (at para 37)
In Dafeki, Case C-336/94 [1997] ECR I-6761 at para 19, the Court ruled that the administrative and judicial authorities of a Member State must accept certificates and analogous documents relative to personal status issued by the competent authorities of the other Member States, unless their accuracy is seriously undermined by concrete evidence relating to the individual case in question.
In addition, the Commission s guidance on implementation of the Directive (COM(2009) 313) See link above, states that Member States may require that documents be translated, notarised or legalized where the national authority concerned cannot understand the language in which the particular document is written, or have a suspicion about the authenticity of the issuing authority.
The absence of EU rules on the mutual recognition of documents relating to personal status (such as birth certificates and marriage certificates) is exacerbating these problems and is leading to divergent administrative practices in residence formalities. At present the formalities for recognising official documents are partly governed by the Convention Abolishing the Requirement of Legalisation of Foreign Public Documents (The Hague, 5 October 1961), which institutes the apostille certificate (see comments above concerning the same).
Given the many instances where Member States have been found to misapply the terms of European Union law in this field, the European Commission has been compelled to issue guidelines on the subject. Please follow the link:
http://eur-lex.europa.eu/LexUriServ/Lex ... FIN:EN:PDF
Entry into France without a visa:
Given the difficulties your wife has had with the processing of a Visa to visit France, you are now inclined to attempt to go to France without the required visa and to rely on Article 5 paragraph 4 Directive 2004/38, which requires French Border officials to land your wife in France and to let her a reasonable delay to prove that she is covered under EU law (Directive 2004/38), e.g. her marriage certificate, your passport and her passport.
Article 5 paragraph 4 is also reflected under the Border code and the Visa code, compelling EU border officials to exercise discretion, where proof by the passenger establishes that he is the family member of an EU citizen and that they are both travelling together.
Whilst Article 5 paragraph 4 does limit the powers of EU immigration officials and border guards, please beware that your wife may be subject to a rigorous scrutiny.
You may find assistance through the following organizations located in various parts of France:
http://www.ccbe.eu/index.php?id=140&L=0
Please find the link to the website for the French Law Society.
http://www.avocatparis.org/
CIMADE provides direct legal advice and assistance on a case by case basis:
http://www.cimade.org/poles/defense-des-droits/
I trust the above answers the questions you had and thank you again for getting in touch with Your Europe Advice.
Kind regards.
Your Europe Advice.
Your original query was:
RE: Applying for a Schengen visa with a Chinese wedding certificate
Hello there,
I am a UK citizen and my wife is Chinese. We were married in China this year and my wife is now living with me in the UK on a spouse visa. We wish to visit countries in the Schengen area as tourists. So, we would like to apply for a free visa for my wife, as is our right.
However, we have a dilemma. Here's how it goes:
1. Both the French Embassy and Italian Consulate in London require us to submit a marriage certificate and/or translation that has been legalised in the UK.
[References: For France: http://www.ambafrance-uk.org/As-the-Spo ... pean-Union point 6.
For Italy: this isn’t clear from the website, but it’s what they told us at the Consulate in person.]
2. The Chinese Embassy in the UK does not normally legalise documents issued in China. It only provides this service for documents issued in the UK. The Chinese Embassy say that if the document is not from the UK it has to be first notarised by the issuing country (in our case China) and then legalised by the UK Government.
[Ref: http://www.chinese-embassy.org.uk/eng/l ... 021900.htm]
3. The UK government only legalises documents issued in the UK (and by UK authorities). So, they won’t look at our Chinese marriage certificate.
[Ref: https://www.gov.uk/get-document-legalised]
4. The Chinese authorities in Beijing might legalise our marriage certificate, but the French and Italian embassies won't accept this, as they both want our documents legalised in the UK only (see point 1.).
It seems like a perfect Catch-22 with no way out. Here are two questions I can think of:
a. Are the French and Italian embassies right in asking us to do something that is, from our standpoint, seemingly impossible?
b. If we turn up on the border without a visa and demand our right to enter based on our marriage, can they simply turn us away because they don’t recognise our Chinese marriage certificate? Our marriage certificate and translation have both been notarised by the Chinese authorities already.
Any assistance would be greatly appreciated. Thank you in advance for your time and best wishes.
