EEA Family Permit for short visits

[Directive/2004/38/EC]

I have been reading Metock again http://www.bailii.org/eu/cases/EUECJ/2008/C12708.html and found this:

52. In particular, the first subparagraph of Article 5(2) of Directive 2004/38 provides that nationals of non-member countries who are family members of a Union citizen are required to have an entry visa, unless they are in possession of the valid residence card referred to in Article 10 of that directive. In that, as follows from Articles 9(1) and 10(1) of Directive 2004/38, the residence card is the document that evidences the right of residence for more than three months in a Member State of the family members of a Union citizen who are not nationals of a Member State, the fact that Article 5(2) provides for the entry into the host Member State of family members of a Union citizen who do not have a residence card shows that Directive 2004/38 is capable of applying also to family members who were not already lawfully resident in another Member State.

This conclusion (in bold) is fundamental to the Metock judgement. It is also totally incompatible with the British interpretation that the residence card referred to in Article 10 is a residence card issued by themselves.

Rolfus, I was just rereading this and I am not sure if I understand your conclusion here. Why is this totally incompatible with the British approach to "Residence Cards"?

[ca.funke]

Rolfus, I was just rereading this and I am not sure if I understand your conclusion here. Why is this totally incompatible with the British approach to "Residence Cards"?

My guess:
The conclusion shows that 2004/38/EC allows entry even without any residence card.

The UK argues that only residence-cards issued by themselves are accepted for entry into the UK.

But since entry is allowed even without a residence-card, the "self-issue"-idea is totally out the window...

[Rolfus]

The UK thinks 'Residence card' means 'residence card issued by the state where the holder is resident', almost everyone else thinks it means 'residence card issued by any EEA state'.

Let us substitute that second meaning:

52. In particular, the first subparagraph of Article 5(2) of Directive 2004/38 provides that nationals of non-member countries who are family members of a Union citizen are required to have an entry visa, unless they are in possession of the valid 'residence card issued by any EEA state' referred to in Article 10 of that directive. In that, as follows from Articles 9(1) and 10(1) of Directive 2004/38, the 'residence card issued by any EEA state' is the document that evidences the right of residence for more than three months in a Member State of the family members of a Union citizen who are not nationals of a Member State, the fact that Article 5(2) provides for the entry into the host Member State of family members of a Union citizen who do not have a 'residence card issued by any EEA state' shows that Directive 2004/38 is capable of applying also to family members who were not already lawfully resident in another Member State.

Then the first meaning:

52. In particular, the first subparagraph of Article 5(2) of Directive 2004/38 provides that nationals of non-member countries who are family members of a Union citizen are required to have an entry visa, unless they are in possession of the valid 'residence card issued by the state where the holder is resident' referred to in Article 10 of that directive. In that, as follows from Articles 9(1) and 10(1) of Directive 2004/38, the 'residence card issued by the state where the holder is resident' is the document that evidences the right of residence for more than three months in a Member State of the family members of a Union citizen who are not nationals of a Member State, the fact that Article 5(2) provides for the entry into the host Member State of family members of a Union citizen who do not have a 'residence card issued by the state where the holder is resident' shows that Directive 2004/38 is capable of applying also to family members who were not already lawfully resident in another Member State.


In the first example this paragraph of the judgment makes perfect sense.

In the second example "the fact that Article 5(2) provides for the entry into the host Member State of family members of a Union citizen who do not have a 'residence card issued by the state where the holder is resident'" would only show that "Directive 2004/38 is capable of applying also to family members who were not already lawfully resident in" the state that issued the residence card.

So in the second example, if the family members were trying to enter the UK, and possessed a residence card issued by France it would be said that Article 5(2) applied to that situation (and therefore it would not show that Directive 2004/38 is capable of applying also to family members who were not already lawfully resident in another Member State), and one of the main planks of the Metock judgment would fall.

I think it is fair to say that this paragraph shows that the ECJ interprets residence card in the non-UK broader sense. I believe this could be cited in any case where the UK is refusing admission based on their narrow interpretation.

I will have a hearing in the UIT in the next couple of months over the issue of an EEA family permit to my unmarried partner. I intend to ask my barrister to apply to the Judge for a ruling that she does not need such a permit to enter the UK because she holds a Residence Card issued by another EEA state, citing this paragraph. I don't know yet whether such a request is possible under the procedural rules.

[Directive/2004/38/EC]

This is almost fun!

Metock point 52:

... the fact that Article 5(2) provides for the entry into the host Member State of family members of a Union citizen who do not have a residence card shows that Directive 2004/38 is capable of applying also to family members who were not already lawfully resident in another Member State.

Let me try to “rewriteâ€

[Rolfus]

I need to practice this argument before I try it in front of a judge!


The judges in Metock were trying to understand what is said about family members moving to a host state with an EU citizen. They were considering two possibilities; either the FM had been resident in an EEA state with the citizen, or she had not.

They are saying that the way in which a FM would prove that she had been resident in another EEA state would be by showing a Residence Card. Then they consider it worthy of note that Article 5.2 'Right of Entry' talks about needing a visa. They infer from this that 5.2 is making provision for FMs coming from outside the EEA.

Now, if the British interpretation were correct, they couldn't make that last inference, because FMs would need a visa whether they already had a Residence Card or not.

That last inference is key to answering the First Question in Metock, and the Judges start paragraph 52 with the words "In particular".

I think that in your reading, Directive, you skate over 'In that the residence card is the document that evidences the right of residence'.

[Directive/2004/38/EC]

I think that in your reading, Directive, you skate over 'In that the residence card is the document that evidences the right of residence'.

I phrased it somewhat differently when I said

have a Residence Card issued by another member state [i.e. proof of lawful residence with an EU family member exercising treaty rights]

The emphasis being that the Residence Card is proof that the non-EU has previously lived legally in a EU member state.

[Rolfus]

COMMISSION OF THE EUROPEAN COMMUNITIES
Brussels, COM(2009) 313/4
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

2.2.1
Residence cards issued under Article 10 of the Directive to a family member of an EU citizen residing in the host Member State, including those issued by other Member States, exempt their holders from the visa requirement when they travel together with the EU citizen or join him/her in the host Member State.

Can these Communications be quoted in court? Do they have any force?

[Directive/2004/38/EC]

Can these Communications be quoted in court? Do they have any force?

http://www.immigrationboards.com/viewtopic.php?t=78365 discusses various EU documents and how "legal" they are. Regulations and (especially non-transposed) Directives have clear force. Communications are less clear.

[Obie]

In combination with Article 5(2) of the Directive, i believe this will make a strong case in court, that the UK has not transposed Article 5(2) and hence under the policy of direct effect, your partner should be able to have the conditions of the directive directly applied to her.

I must caution myself by agreeing with Directive in saying, a communication or guidance from the commission is not binding on the courts in any of the member state.

You could also add that so far, it is only the UK, that maintains this restrictive interpretation of the Directive, as Ireland which once shared the UK's intepretation, has now ammended its visa conditions in conformity with the directive.

[86ti]

You could also add that so far, it is only the UK, that maintains this restrictive interpretation of the Directive [...]

Maybe not. The Lithuanian embassy seems to still claim that that would not be possible. No idea what their legislation says.

[Rolfus]

Obie,

Could you give some references to the Irish change of heart?

Thanks

[Obie]

Maybe not. The Lithuanian embassy seems to still claim that that would not be possible. No idea what their legislation says.

There is some misunderstanding which seem to have been transmitted to the Embassy, but in reality, the Lithuanian Legislation provides for exemption for family members holding a residence card.

This is stated in the compliance study

[Obie]

Obie,

Could you give some references to the Irish change of heart?

Thanks

Please see No Irish Visa Required if you have a Residence Card

[sarah82]

Hi All,

Have been employed full time & paying tax in The Netherlands for past 3 months.
Dual UK/Irish national currently registered and holding an Irish passport.

My husband has been given the 'sticker' in his passport by Dutch IND stating his lawful residence & right to work until 04/2012, By which time he should hopefully be given a Dutch 5 year residence card:

Anyway we are now wanting to 'visit' UK for christmas,
Have looked at the EEA FP form and there are some additional questions to answer if the NON-EEA spouse doesn't yet have an EU residence card:

But the main issue is if the EEA FP is applied for in Dusseldorf Germany, the biometrics are taken for free,

If however we use the mobile biometric place in Amsterdam there is a charge of around £150 to simply have biometrics taken!

I have read that some couples have turned up at a UK ferry port & gained entry under the Directive with NO EEA FP, but most have at least had an EU residence card issued by another member state,

Is it possible for my husband & I to travel to UK without EEA FP without Dutch residence card, and with only UK apostled marriage certificate, Dutch equivalent of 'certificate of application' and our passports?

Or is that a totally unheard of big no no?

Asking for trouble?

[Directive/2004/38/EC]

A number of people have done it, including some in your situation. I have never heard of a problem. See http://eumovement.wordpress.com/2010/08 ... to-travel/ which includes links to different people's stories. Most of them are entering the UK.

[sarah82]

Thanks Directive.

I'm very afraid that if UK didn't let us in, where would they put my husband?
So I just spoke to Dutch immigration & sure enough his 'sticker' in the passport would not be enough to get us back in to Holland

(which would be our last resort in an emergency as we plan on STAYING in the UK once we manage to get in.)

They can issue him with a return visa for a fee of 140 euro, which would enable us to get back in to The Netherlands if need be.

Since the biometrics cost 150 euro for the EEA FP, and we could possibly wait weeks or longer for an EEA FP, We are now tempted to pay for the Dutch return visa and try to just turn up at the UK port.

To travel through belgium france germany etc on bus and then ferry to Dover, I fear my husband would be asked for a Schengen visa in order to travel through those countries ?????????

So we are considering Hook of Holland to Harwich ferry.

Anyone took this ferry route?

I wonder how likely it'd be that we'd be let on the ferry at the Dutch end?

Would there likely be UK immigration checks to simply board the ferry?

I've read the border guard book that the 'Code 1A' stamp should be given at a port, but do they always do this?

Or could they just point blank refuse us entry?

Please help!

Many Thanks for assistance.

[Jambo]

I'm a bit surprised by the Dutch authorities answer. Doesn't his "sticker" allow multiple entries to the Netherlands?

The advantage when travelling from Calais compared to the Hook of Holland, is that UKBA staff is based on the continent side so they will review your case before boarding the ferry/train. Although you encounter the French authorities first, they are likely just to tell you to go and sort it out with the UKBA people. At Hook of Holland there is only Dutch immigration (UKBA is based in Harwich) so if any issue arise, they are likely to prevent you from boarding.

I never tried it myself but I don't believe the coach companies ask to see a Schengen visa when travelling.

[sarah82]

Thank you for your reply.

Sorry I don't get it!

Do you mean that there are UKBA staff in Calais France, but not at the Hook of Holland?

Wouldn't that be an advantage? Or not?

Many Thanks.

[Jambo]

Do you mean that there are UKBA staff in Calais France, but not at the Hook of Holland?

Correct.

Wouldn't that be an advantage? Or not?

Calais is an advantage because if UKBA allow your entry, the French authorities would allow your exit but in Hook of Holland, the Dutch authorities might not allow your exit as they don't know if the UK would allow your entry so they might not take the risk and refuse you boarding the ferry.

[Directive/2004/38/EC]

So I just spoke to Dutch immigration & sure enough his 'sticker' in the passport would not be enough to get us back in to Holland

(which would be our last resort in an emergency as we plan on STAYING in the UK once we manage to get in.)

Your entry into ALL EU member states, when you do not have what they believe is a required visa, is governed by the same rules. So the French and the Dutch and the English and the Irish all have the same requirements. It comes from the ECJ case of MRAX. (As discussed http://eumovement.wordpress.com/2010/08 ... to-travel/ )

So if you try to enter the UK based on MRAX, then in the in my opinion very unlikely event you are turned back, then you can reenter Holand or France also on the basis of MRAX.

Read http://eumovement.wordpress.com/2010/08 ... to-travel/ carefully. It has extracts from the Schengen border guards manual as well as from the UK border guards manual.

[Directive/2004/38/EC]

I'm very afraid that if UK didn't let us in, where would they put my husband?

You husband has a legal right to be with you. The ECJ, which is the highest European court, has been very clear about that.

You husband is not going to be snatched away from you. They are not going to put him in prison, or on a plane to somewhere.

They are not required by law to be polite to him or you, or me for that matter. But if you read the descriptions that most people have written of doing this, they have to wait from 15 to 30 minutes, the staff are polite and there are few problems, and then off they go.

You should always carry your marriage certificate when you travel, at least until you have the issued Residence Card.