Directive/2004/38/EC wrote:This is a super interesting problem. And echos something that got me into free movement issues in the first place. First of all I should say that
I am not a lawyer, so take what I write as my observations and in no way as any sort of advice or (god forbid) professional advice!
I assume your spouse is UK, and so you do not have a Residence Card. You have a spouse visa or ILR?
If you were traveling with your direct
"family member", as defined by Article 3 of Directive 2004/38/EC, you should have no problem and they
should issue the visa for free. You should have to provide only the proof of relationship (marriage certificate) and Eu and non-EU passport. But the non-EU parent of an EU child is not on that list, for better or for worse.
The non-EU parent of an EU child is covered on the "
other beneficiaries" list. Read this carefully!
Unfortunately the law is a little unclear for "other beneficiaries". For instance
Directive 2004/38/EC wrote:Article 5 -- Right of entry
1. ...
2. Family members who are not nationals of a Member State shall only be required to have an entry visa ...
Member States shall grant such persons [ed: "family members"??] every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.
So in this case it refers to "family members" and then talks about free visas. Are the free visas also for the "other beneficiary", or are the just for the strictly listed "family members"?
There is also case law which is relevant, though it is nothing that a visa officer would recognize or be able to digest easily.
My personal experience with this was slow but in the end positive.
My daughter is a UK citizen. She wanted to travel with my wife to Ireland, and so my wife required a visa. The Irish embassy refused to accept the application without all sorts of Irish references, and bank account statements, and airplane tickets, a big fee, and so forth. So we sent it in by mail, and got back the desired written refusal listing the things they wanted.
So we checked with the EU's free
Citizens Signpost who put us in touch with an EU lawyer in Dublin. She thought Ireland should issue the visa, and that it should be free, and no extra documentation. She explained that the child could only realistically exercise her free movement rights if the adult was also allowed to travel. (See
http://en.wikipedia.org/wiki/Chen_case for an ECJ case with similar ideas). I should note that she took a very broad interpretation of "family member".
So we then contacted
Solvit. They were in the end helpful. The London team was so so, but the Dublin team seemed to really push it.
In the end, about 3 months later or maybe even more, the visa was issued based on just the two passports and the birth certificate. No fee and no unneeded crap documentation. Sadly the window of opportunity for the visit was gone, so the visa never got used!
