Discuss: Europe travel with RC but no EU spouse

[Directive/2004/38/EC]

One of the things that is often repeated, but is never explicitly justified or argued, is the statement:

The non-EU family member can only travel on the basis of European law if they are traveling with (or joining) the EU citizen

But is that actually really true, especially in the case where the family member has a valid Residence Card?

Directive 2004/38/EC is clear that possession of a Residence Card exempts the holder from the requirement to have a visa. This is a new addition to free movement law (not from ECJ case law as far as I know) and it does not add an explicit requirement that the RC holder be traveling with or joining the EU citizen.

Article 5 -- Right of entry
2. ... For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.

Maybe this is the hickup, but maybe not...

Article 6 - Right of residence for up to three months
2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.

So maybe the family member could enter but not "reside"...


Ireland

Ireland recently changed it's law to allow RC holders visa free access to the country. There does not seem to be a requirement of the law, Immigration Act 2004 (Visas) Order 2011, that the EU family member be traveling along. http://www.immigrationboards.com/viewtopic.php?t=78980 for more details. The Irish law just says that if you have a Residence Card, then you do not need a visa.

http://www.immigrationboards.com/viewto ... 328#536328 is an example of somebody entering Ireland on their RC without the family member and having no problem.

[acme4242]

I thought it came from EU Directive 2004/38/EC
But I don't know if it has an earlier origin.

Article 3
Beneficiaries
1. This Directive shall apply to all Union citizens who move to or reside in a Member State other
than that of which they are a national, and to their family members as defined in point 2 of Article 2
who accompany or join them.

While there are provisions after obtaining the RC, to remain in the
case of death or departure or the EU citizen, there is nothing covering
visa free travel without being in the company or to join the spouse.

My opinion is, its all very odd and its akin to the laws in Saudi,
that a wife may not travel outside the house without being the the
company of her husband.

[ca.funke]

Hi Directive,

the idea you describe is amazing

As usual the law is unclear. Maybe it´s worth asking the Commission for advice? As long as it´s "just" asking a question (not asking to sue the memberstate) it usually doesn´t take too long to get some wishy-washy answer that might illustrate what the law is expected-to-maybe-achieve, should the memberstates be generous enough to abide by the law...

That´d be my take. I´m really surprised that it´s in front of our eyes, but didn´t see it yet

Rgds, Christian

[Directive/2004/38/EC]

I have just had coffee, so I have another wild idea...

Anyone who has legal residence in the Schengen region can travel without a visa to other Schengen member states:

if a third-country national holds a residence permit issued by a Schengen State, this residence permit is deemed to be equivalent to a Schengen visa. This equivalence does not apply to temporary permits issued pending examination of a first application for a residence permit or an application for asylum;

So a single Chinese citizen who has a residence permit in Germany can travel to France and does not need to be accompanied by anyone. This applies as well to the Chinese (spouse of an EU citizen) who has a German issued Residence Card: there is no extra requirement that this person be accompanied by their EU spouse when they travel.

So why does Directive 2004/38/EC have specific language that says Residence Card holders do not need a visa? Clearly this is superfluous for travel within the Schengen region. Is this just because the Directive "brings together all the law related to EU citizens and their family"?

[JA13I]

If only a competent lawyer were to take this issue to the EC.

[86ti]

Article 6 - Right of residence for up to three months
2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.

The more important reference here would be 3(1), I think.

BTW, from an interesting discussion on another board today (the question was whether an entry visa could only be issued if the EEA's national intention was to settle down in the member state): the English version says 'join' while the German version uses 'nachziehen' which I would spontaneously interpret as following the EEA national for the purpose of living with him/her possibly implying that the EEA national is resident/has settled in that member state. What does 'join' really mean here? What do other language version say?

[Directive/2004/38/EC]

The more important reference here would be 3(1), I think.

I think you and acme4242 may be right on this. It have been a "great idea" while it lasted...

BTW, from an interesting discussion on another board today (the question was whether an entry visa could only be issued if the EEA's national intention was to settle down in the member state): the English version says 'join' while the German version uses 'nachziehen' which I would spontaneously interpret as following the EEA national for the purpose of living with him/her possibly implying that the EEA national is resident/has settled in that member state. What does 'join' really mean here? What do other language version say?

I am not sure if I understand the issue you were discussing. Is the issue fundamentally whether the EU citizen can leave a day early for vacation, and then the non-EU can fly a day later (after their important meeting)? Or is this an issue of whether the visa is permitted for the family when it is only for vacation (even if they are traveling together)?

English: their family members [] who accompany or join them.
Deutche: seine Familienangehörigen [] die ihn begleiten oder ihm nachziehen.


I found a super fun EU tool which allows you to look at parallel translations of the directive in 2 different languages. Directive 2004/38/EC in German and English. You can click on the different languages above each column to switch. Most pairs work perfectly, but a few are badly misaligned.

Do you have a link the the other discussion?

[86ti]

My problem is one of language: 'nachziehen' sounds for me like giving up your current home and moving to the new one of the EEA national. On the other hand 'join' always sounded to me rather neutral and could mean anything from meeting up for a drink to the intention of staying there forever. In the case of the EEA national related part in 3(1) it is exactly opposite: 'sich begeben' simply means to me to swap the current location with a another one (would the English 'to repair to a place' carry a similar meaning?) without giving any indication as to why or how long one would do that whereas 'move to' sounds for me like moving into a new home. Obviously I am not an English native speaker and thus might not fully understand all the possible meanings of those words esp. what they could potentially mean in a legal context.

[Directive/2004/38/EC]

My problem is one of language: 'nachziehen' sounds for me like giving up your current home and moving to the new one of the EEA national. On the other hand 'join' always sounded to me rather neutral and could mean anything from meeting up for a drink to the intention of staying there forever. In the case of the EEA national related part in 3(1) it is exactly opposite: 'sich begeben' simply means to me to swap the current location with a another one (would the English 'to repair to a place' carry a similar meaning?) without giving any indication as to why or how long one would do that whereas 'move to' sounds for me like moving into a new home. Obviously I am not an English native speaker and thus might not fully understand all the possible meanings of those words esp. what they could potentially mean in a legal context.

My translator friend confirms your analysis. Join is more general.

But does it really matter? The family members and EU citizen both are "resident" as soon as they are in another EU member state. So unless "nachziehen" only applies for long term moves, then the non-EU could also "move" to the new member state for a few days (less than 90) of vacation a day after the EU citizen arrived...

I wonder which language the Directive is "definitive" in...

[Directive/2004/38/EC]

Ok, a new weird scenarios along the same twisted thread...


Scenario 1:

If a working Belgium citizen and her non-EU husband live in the UK, then they can come and go from the UK pretty much as they want. Lets imagine they both fly off to a vacation in Spain, enjoy themselves in the sun, and then he flies back a few days early because of some awful meeting. They are both resident in the UK, and it is fine for him to reenter the UK even though his uk-resident-EU-citizen wife is still enjoying the Spanish sun.


Scenario 2:

Lets say my wife and I are normally resident in the UK.

My wife can get a Schengen visa and we can fly to Germany. On arrival I will be "resident" there, with respect to free movement law, and so will she. (See discussion of residence). We are both resident in Schengen!

We go for a ride through the park and have a very nice beer in the fall Biergarten air. (Ok, this paragraph was just added for descriptive colour).

The next day we temporarily leave Germany to return to the UK.

At this point we are both resident in Germany, but not physically present in Germany. (We are also resident in the UK, which I do not think matters at all in this discussion).

At this point I think she has the right to travel freely into and out of Schengen land without me accompanying her? I tend to think so. After all, she is resident in a Schengen member state, along with her EU citizen spouse.

I fully recognize 100% that I have very little proof that we are resident in Germany, and she can certainly in theory be given a hard time by border guards. But this is a thought exercise at this point.

And of course that temporary residence in Germany will end after 3 months, since I will not be working or exercising treaty rights.

[Directive/2004/38/EC]

And let me go one more step... My wife could, in theory, work in Germany during the initial period (under 3 months) of residence there. Even while I am not there.

[smallpie]

hi directive..
yes u are right abt free travel to ireland/dublin without yr eu partner or visa. they just ammend the law recently. as am travelin dublin on my own for 4days soon, i make enqiry to r.ireland embassy in uk and i was replied with a link .. which says i dont need to get a visa as an eu family member with residence card. only family member of uk nationals needs a visa to travel. i have book my ticket already and travelling there soon.
i will print the copy of the email and the reply with me, just incase.

[EUsmileWEallsmile]

Very interesting language tool that was posted earlier, might be a bit late to be posting this, but anyway.

The French and Spanish versions have a very similar meaning to the English version to accompany; but for join they are more akin to re-unite with.

Anyway, ECJ rulings on the "join" / "accompany" allow them to be interpreted in a very flexible way. The acid test is would a particular measure deter the EU national from exercising treaty rights (if yes, then it would not be allowed; if not, then it might be allowed stand).

Three scenarios I can think of:

1. Non-EU family member and EU national travel together (no problem)
2. EU national goes first and is joined afterwards by non-EU family member (no problem)
3. Non-EU family member travels first and is joined by the EU-family member (not specifically tested in ECJ as far as I know)

In case 3, the non-EU family member might be in for a hard time at the border. If they have a residence card and are in Shengen, they will have no problem; they are allowed to move about. The UK only recognises its own issued residence card, so there would be a problem there. Ireland has moved on and effectively treats all residence cards in the same way. Would a Shengen state object to a UK or Irish card - maybe yes, maybe no? We know that once over the border a residence card can be applied for, but getting in might be the problem.