Direcrive 2004/38/EC Grey areas?

[SRAQAI]

Hi All,

Some here know about my case, with my Husband in Pakistan attempting to obtain a Schengan entry visa for France, from the French Embassy, Islamabad. His last application was rejected based on Article 32, point 2 of the Visa Code, which does not apply to us. An appeal has been posted to them and I have got acknowledgement of receipt from the Appeals Commission in Nantes, France. Now we are waiting out the appeal which can take upto 2 months. In the meantime, we have lodged another application to the French Embassy, Islamabad, which was submitted 2 days ago. This is because we want to travel in the second week of September. So much hassle!

Now, in regards to the rejected application, for which we appealed, I also contacted France based SOLVIT team, after being advised to do so by 'Your Europe' advice. However, they again referred me back to the useless UK SOLVIT team, who then emailed me, wanting to 'deal' with my case. of course, once again, this person who works for UK SOLVIT refused to take forward my complaint. She says:

"The Directive wording is that it applies to citizens who move to and reside in another Member State, and to their family members to accompany or join them there. At the time of the application, you had not exercised free movement rights to move to another Member State. The Directive applies at the point that you move to another Member State, and then your husband can make an application to join you, unless he is accompanying you at the time, in line with Article 3.1 of Directive 2004/38/EC."

Is this correct? Does one already need to be in Europe, in order for the Directive to kick in? She is making out that I have to already be in France before my husband can apply at the embassy for a visa. How comes this is an issue, she is telling me about NOW, and did not mention a word about this, since July 2011?? Ive been in contact with her throughout this ordeal, until I refused to deal with her. This UK 'SOLVIT' person makes every effort to NOT help us. My husband has been trying to obtain a visa and each time the UK SOLVIT have relied on 'grey areas' in order to not take forward our case. Last time, she questioned whether our marriage certificate was recognised by the embassy, even though the Embassy themselves did not highlight this issue to us. She is just pulling things out of thin air.

If I had to be in France at the time hubby applies for the visa, then I am sure the Embassy would have rejected the application on this basis, but they did not.

I have contacted 'Your Europe' again explaining this and I am awaiting their response, along with a request for advice as to what to do, if this new application is rejected. The difference with this new application, is that now, me and my husband will be traveling together from Pakistan, instead of him joining me there... but I wanted to know whether I do in fact have to be in France at the time my husband applies for a visa.
This will help me decipher what the outcome of the appeal could be.

Our plan was that I was going to travel to France as soon as hubby gets the visa, and then he was going to fly out a couple of days after I arrive there. Does this not fall under the Directive 2004/38/EC?

Thank you!

[EUsmileWEallsmile]

of course, once again, this person who works for UK SOLVIT refused to take forward my complaint. She says:

"The Directive wording is that it applies to citizens who move to and reside in another Member State, and to their family members to accompany or join them there. At the time of the application, you had not exercised free movement rights to move to another Member State. The Directive applies at the point that you move to another Member State, and then your husband can make an application to join you, unless he is accompanying you at the time, in line with Article 3.1 of Directive 2004/38/EC."

Is this correct? Does one already need to be in Europe, in order for the Directive to kick in?

The person who dealt with you in Solvit appears to have a fundamental misunderstanding of the directive and its purpose. Solvit must have a complaints procedure. I would avail of it and complain. To me either the person you dealt with is misinformed or having a laugh.

While it is true that EU citizens (and their family members) need to move to another member state if they are to benefit from the directive, Article 5.2 is designed to facilitate the entry of third country visa nationals. The idea being that a third country visa national family member can obtain an entry visa in order to accompany or join their EU family member. No visa, no accompanying or joining.

There is absolutely no requirement to be in the EU first. This was comprehensively clarified in the case of Metock et al. This judgement is several years old.

[EUsmileWEallsmile]

... but I wanted to know whether I do in fact have to be in France at the time my husband applies for a visa.
This will help me decipher what the outcome of the appeal could be.

Our plan was that I was going to travel to France as soon as hubby gets the visa, and then he was going to fly out a couple of days after I arrive there. Does this not fall under the Directive 2004/38/EC?

Thank you!

You do not need to be in France for your husband to obtain a visa.

You plan as you put it is fine - shame that your husband's visa is not being facilitated.

[SRAQAI]

Thanks so much, Emillie for the reply

I have been dealing with the UK SOLVIT 'team' on and off since July 2011, when my husband first attempted to get an entry visa into France. She has been having a laugh since then. One minute she thinks our marriage is not valid, even though the French Embassy themselves have not pointed that out, and the next minute the Directive doesn't apply to us! We have been trying the same route since July 2011, and me entering France before or after the hubby does, wasn't relevant before, it just seems to be now. I have made all the complaints against her to every facility I can think of, including the EU Commission, Your Europe, the EU Ombudsman and the BIS, where she is stationed. UK SOLVIT is only a one man band - or woman shall I say.

I just sent her an email outlining Metock case, but I am concerned that because it focuses on the fact that the non-EU Citizen doesnt have to be in the EU before the Directive kicks in, she might just turn around and say "Well, there is nothing specific that mentions that a Union Citizen doesn't have to be in a second EU state before Directive kicks in". She tries every single tactic to make out that we do not qualify and the responses to my complaints that I have made, were that they cannot deal with it because SOLVIT does not fall under their scope.

When the French Embassy made it troublesome for us to lodge an application, her response was that "there is no evidence that the French Embassy acted in contradiction to the Directive" !!!!!

Hubby's application is in for the third time... lets see how this turns out! Ive also got acknowledgement for receipt of my appeal from France, they will take 2 months to process. I also complained about the UK SOLVIT in that too!

... but I wanted to know whether I do in fact have to be in France at the time my husband applies for a visa.
This will help me decipher what the outcome of the appeal could be.

Our plan was that I was going to travel to France as soon as hubby gets the visa, and then he was going to fly out a couple of days after I arrive there. Does this not fall under the Directive 2004/38/EC?

Thank you!

You do not need to be in France for your husband to obtain a visa.

You plan as you put it is fine - shame that your husband's visa is not being facilitated.

[EUsmileWEallsmile]

Regarding the perosn you are daling with in SOLVIT, they must have a reporting structure and or complaints procedure. In general, people are accountable to someone else at the end of the day.

Can I suggest that if you still have problems with this particular person that you ask them for a third party review? I would suggest something along the lines of "you appear to be misinformed about the application of the directive 2004/38/EC and in particular, its relevance to my case. I request that my request for SOLVIT involvement is treated seriously. For the avoidance of doubt this is a complaint and is to be treated as such. Please detail your complaints procedure and advise how my case could be reviewed by someone else within the SOLVIT organisation. Thank you".

[SRAQAI]

Oh, ive done that many months ago. This was her response:

"Good afternoon [name removed]

As I am Head of the UK SOLVIT team, you can make a complaint about me to BIS complaints, http://www.bis.gov.uk/contact/complaints

Regards

[Name removed]
UK SOLVIT Centre

There is not a 'team' of UK SOLVIT, it is only herself in the UK. I made a complaint to the people she mentioned that I should complain to. No use. They never heard of her and hence cannot take a complaint for an organization that they are not a part of. They referred me to the UKBA.

Regarding the perosn you are daling with in SOLVIT, they must have a reporting structure and or complaints procedure. In general, people are accountable to someone else at the end of the day.

Can I suggest that if you still have problems with this particular person that you ask them for a third party review? I would suggest something along the lines of "you appear to be misinformed about the application of the directive 2004/38/EC and in particular, its relevance to my case. I request that my request for SOLVIT involvement is treated seriously. For the avoidance of doubt this is a complaint and is to be treated as such. Please detail your complaints procedure and advise how my case could be reviewed by someone else within the SOLVIT organisation. Thank you".

[EUsmileWEallsmile]

There is not a 'team' of UK SOLVIT, it is only herself in the UK. I made a complaint to the people she mentioned that I should complain to. No use. They never heard of her and hence cannot take a complaint for an organization that they are not a part of. They referred me to the UKBA.

That's pretty incredible. Don't give up. You are in the right, don't be fobbed off. You have a legitimate complaint (both about the French handling of your case and UK SOlVIT).

[SRAQAI]

Emillie,

Thank you so much for your encouragement, and I must say, thank you so much for your contribution to this forum

Do you think its worth sending a complaint to the UKBA about her? I don't think she is employed by them or has anything to do with them, so I am not sure its worth it. I think SOLVIT is an EU Commission organization, however when I complained to the Ombudsman, they said they cannot take up this complaint. Where else to complain?

There is not a 'team' of UK SOLVIT, it is only herself in the UK. I made a complaint to the people she mentioned that I should complain to. No use. They never heard of her and hence cannot take a complaint for an organization that they are not a part of. They referred me to the UKBA.

That's pretty incredible. Don't give up. You are in the right, don't be fobbed off. You have a legitimate complaint (both about the French handling of your case and UK SOlVIT).

[EUsmileWEallsmile]

Definitely not UKBA. It is not their issue.

Keep at them, someone will listen eventually. Have you tried your Euro MP?

[SRAQAI]

Definitely not UKBA. It is not their issue.

Keep at them, someone will listen eventually. Have you tried your Euro MP?

I got the Euro MP's involved last year. No use. The one that did reply said the same as she is saying at SOLVIT, I have to already have exercised my treaty rights to freedom of movement, before the Directive kicks in. I.e. I have to be in France already at the time hubby applies for the visa!

[toto italy]

Maybe this will be of help to you.

http://ec.europa.eu/solvit/site/centres ... m#ukingdom

[toto italy]

Maybe this will be of help to you.

http://ec.europa.eu/solvit/site/centres ... m#ukingdom

[EUsmileWEallsmile]

The one that did reply said the same as she is saying at SOLVIT, I have to already have exercised my treaty rights to freedom of movement, before the Directive kicks in. I.e. I have to be in France already at the time hubby applies for the visa!

...and as you know, that is nonsense.

[SRAQAI]

Thanks so much to both of you

I have another question. We have the third application in for the French entry visa and its still being processed. If, again, they reject the application, I am thinking of just giving up - ill get my husband to pack his bags and we will travel together from Pakistan (im in Pakistan right now, trying to sort this out!). Getting a visa to Dubai for Pakistani passport holders is not an issues and Emirates airlines actually give you one, if you book a flight with them. Me and hubby had our honeymoon in Dubai for this reason that getting a visa there is easy. From Pakistan back to EU, one usually have to transit in Dubai anyway, or somewhere in the UAE or Gulf. Now the Pakistan-Dubai leg of the trip will not be a problem, but the Dubai-Paris leg might be. If I print out the Directive and me and my husband just try and board the flight together, do you think we will have major problems? I am thinking of contacting Emirates now, and educating them about this Directive and telling them our travel plans, mentioning that we will be traveling together, but my husband will be without a visa.

What do you think?

[EUsmileWEallsmile]

Thanks so much to both of you :)

I have another question. We have the third application in for the French entry visa and its still being processed. If, again, they reject the application, I am thinking of just giving up - ill get my husband to pack his bags and we will travel together from Pakistan (im in Pakistan right now, trying to sort this out!). Getting a visa to Dubai for Pakistani passport holders is not an issues and Emirates airlines actually give you one, if you book a flight with them. Me and hubby had our honeymoon in Dubai for this reason that getting a visa there is easy. From Pakistan back to EU, one usually have to transit in Dubai anyway, or somewhere in the UAE or Gulf. Now the Pakistan-Dubai leg of the trip will not be a problem, but the Dubai-Paris leg might be. If I print out the Directive and me and my husband just try and board the flight together, do you think we will have major problems? I am thinking of contacting Emirates now, and educating them about this Directive and telling them our travel plans, mentioning that we will be traveling together, but my husband will be without a visa.

What do you think?

I think that without the visa, you will not be allowed to board an aircraft to France If however, you do manage to get to a border you could enter there under article 5.4 of the directive.

Just a question, why France? There are other Shengen countries you could try. Some understand the rules much better than others. ('d let the French application run its course first).

[SRAQAI]

Thanks Emillie,

Yes this is what I am worried about - the Boarding of the flight. From Pakistan to Dubai, we shouldnt have an issue, because he will have a visit Visa for the UAE. I spoke to the local Emirates office here in Pakistan and I mentioned to them an EU Regulation, which allows Pakistani passport holders to travel without a visa, as long as an EU Citizen Spouse was traveling with them. I tried to keep it simple. He mentioned that if there is an EU Regulation stating this, then there should be no reason why he would be denied boarding onto the flight from Dubai. Thing is, I do not want to risk it, I want to make sure that there will be someone in Dubai from Emirates who is expecting us and can make sure my husband will board our flight and they can make the necessary checks before hand. He advised me to come and see them at the Emirates office, which Ill probably do tomorrow.

The reason why I chose France (Paris in particular) is because of its easy access to London. Ill need to travel a few times a week to London and also, I want to do business in Paris, so it makes sense to do it in France. I have been thinking about Ireland though... considering its an English speaking country...

Thanks so much to both of you

I have another question. We have the third application in for the French entry visa and its still being processed. If, again, they reject the application, I am thinking of just giving up - ill get my husband to pack his bags and we will travel together from Pakistan (im in Pakistan right now, trying to sort this out!). Getting a visa to Dubai for Pakistani passport holders is not an issues and Emirates airlines actually give you one, if you book a flight with them. Me and hubby had our honeymoon in Dubai for this reason that getting a visa there is easy. From Pakistan back to EU, one usually have to transit in Dubai anyway, or somewhere in the UAE or Gulf. Now the Pakistan-Dubai leg of the trip will not be a problem, but the Dubai-Paris leg might be. If I print out the Directive and me and my husband just try and board the flight together, do you think we will have major problems? I am thinking of contacting Emirates now, and educating them about this Directive and telling them our travel plans, mentioning that we will be traveling together, but my husband will be without a visa.

What do you think?

I think that without the visa, you will not be allowed to board an aircraft to France If however, you do manage to get to a border you could enter there under article 5.4 of the directive.

Just a question, why France? There are other Shengen countries you could try. Some understand the rules much better than others. ('d let the French application run its course first).

[EUsmileWEallsmile]

The reason why I chose France (Paris in particular) is because of its easy access to London. Ill need to travel a few times a week to London and also, I want to do business in Paris, so it makes sense to do it in France.

These are very good reasons. Don't let the denials put you off, you will succeed eventually.

[SRAQAI]

Thank you Emillie

Just throwing this one out there, but what do you think of the liklihood that he could be held/detained in France at the border there? I know I am being unrealistic and the chances of this are slim, but I want to be prepared for the worst case scenario - being a Pakistani in today's world (especially in the west) means that they are not welcomed with such open arms!

The reason why I chose France (Paris in particular) is because of its easy access to London. Ill need to travel a few times a week to London and also, I want to do business in Paris, so it makes sense to do it in France.

These are very good reasons. Don't let the denials put you off, you will succeed eventually.

[EUsmileWEallsmile]

Thank you Emillie :)

Just throwing this one out there, but what do you think of the liklihood that he could be held/detained in France at the border there? I know I am being unrealistic and the chances of this are slim, but I want to be prepared for the worst case scenario - being a Pakistani in today's world (especially in the west) means that they are not welcomed with such open arms!

The reason why I chose France (Paris in particular) is because of its easy access to London. Ill need to travel a few times a week to London and also, I want to do business in Paris, so it makes sense to do it in France.

These are very good reasons. Don't let the denials put you off, you will succeed eventually.

If he got to a border, he could argue his case under article 5.4 of the directive. I honestly don't know how easy this would be in France.

It would also of course be possible to enter another Schengen country with you and travel onto France. Of course, one has to get to Schengen first.

[Directive/2004/38/EC]

The reason why I chose France (Paris in particular) is because of its easy access to London. Ill need to travel a few times a week to London and also, I want to do business in Paris, so it makes sense to do it in France. I have been thinking about Ireland though... considering its an English speaking country...

But why France for the Schengen visa? You could just as well apply for a German visa and go there together, and then on to France. Or Norway, and go there first together and then on to ??? Spain.

I would try Germany myself.

[SRAQAI]

We have tried for a french schengan entry visa since July 2011 and my husband does not want to go through the whole embassy process again... which in Pakistan is time costing, tiring and requires time off work and long distance travel... my husband has been put under a lot of hardship by the French Embassy, they have really put him on the runaround. If we do this, I think we will just do it, by getting an airline to co-operate by educating them on the Directive (most likely Emirates airlines) and then go onto a Schengan country which have an understanding of the Directive.

Do you think Germany is the best place to show up at the border without a visa and try entrance under the Directive? This is getting very tedious now, to the extent that its affecting our marriage personally. My husband is just fed up to the point now where he doesn't even want to go any more, because of the runaround.

Which countries in Schengan, do you think understand the rules the most? Thanks so much for the advise

The reason why I chose France (Paris in particular) is because of its easy access to London. Ill need to travel a few times a week to London and also, I want to do business in Paris, so it makes sense to do it in France. I have been thinking about Ireland though... considering its an English speaking country...

But why France for the Schengen visa? You could just as well apply for a German visa and go there together, and then on to France. Or Norway, and go there first together and then on to ??? Spain.

I would try Germany myself.

[frei]

OP, do not be dismayed yet, you will eventually get your husband a schengen visa, It wouldn't matter which country understand the directive more once you try to get to the border. personally as hard head as I am I would prefer a country which doesn't understand the directive once i get to their border of course I will be having the final laugh.

The Irish border guards once tried to ignore the directive, and detained a spouse of a Romanian national as they claimed " entering the state without the necessary visa", the case went to court, and of course the judge had to lecture them on the law, and ordered them to pay some hefty fee to the plaintiff.

Please try to talk your husband through, please try as much as you can to ignore the EU institution as have found them utterly useless including the MEP, I will tell you what they are good at (ACKNOWLEDGEMENT), they are very good at acknowledging your complaints, and they will take about 2 months to write a complete undesiring reply to tell you why your complaint doesn't fall within their remit or some nonsense.

The flagrant abuse of the EU law makes the institution a joke some times, personally have found the Germans more respectful and adhering. If you ever get the golden chance to get your husband on a Paris bound flight, please fill yourself with joy as that will be your only chance to hurt them entering without a visa pisses them off, and I'd just like them to be on the receiving end and see how it hurts. The worst case scenario would be detaining your husband in France and its very very unlikely, unlikely I say because the French borders are smarter to know it wouldn't end up good with them. the court is your last resort worst case it gets to the CJEU, and you know before it gets to that point a judge with a common sense would have awarded you your rights, there are enough verdicts on this issue already than going for a new one.

You could certainly apply at the German embassy if there is any in Pakistan, try and exchange few correspondence with them before submitting your husbands application, if they pretend not to understand the directive please post back I will guide you on how to go.

Good luck

[EUsmileWEallsmile]

We have tried for a french schengan entry visa since July 2011 and my husband does not want to go through the whole embassy process again... which in Pakistan is time costing, tiring and requires time off work and long distance travel... my husband has been put under a lot of hardship by the French Embassy, they have really put him on the runaround. If we do this, I think we will just do it, by getting an airline to co-operate by educating them on the Directive (most likely Emirates airlines) and then go onto a Schengan country which have an understanding of the Directive.

Do you think Germany is the best place to show up at the border without a visa and try entrance under the Directive? This is getting very tedious now, to the extent that its affecting our marriage personally. My husband is just fed up to the point now where he doesn't even want to go any more, because of the runaround.

If your husband got to a border with you he would be admitted. Getting to a border is an entirely different matter though. Flying from Pakistan, via Dubai (or anywhere else) to France without a visa is likely to lead to denial of boarding.

Interestingly, spouses of EU nationals do not need a transit visa, so you could in theory be able to transit France if your husband had documentation for his final destination.

I understand it is frustrating, but if you can get the visa for France sorted, either by the appeal route or a fresh application, it will be much better for you.

[newbieholland]

SRAQAI Why don`t you consider the Netherlands? I doubt with a Pakistani passport your hubby can get on any flights to EU regardless of where you trying to board it from. I had similar issues in the past but NL seem to have worked for me. I can literally provide you step by step guide to get through to this. Let me know if you need any assistance and I will PM you.

Good luck with your endeavour.

[SRAQAI]

OP, do not be dismayed yet, you will eventually get your husband a schengen visa, It wouldn't matter which country understand the directive more once you try to get to the border. personally as hard head as I am I would prefer a country which doesn't understand the directive once i get to their border of course I will be having the final laugh.

The Irish border guards once tried to ignore the directive, and detained a spouse of a Romanian national as they claimed " entering the state without the necessary visa", the case went to court, and of course the judge had to lecture them on the law, and ordered them to pay some hefty fee to the plaintiff.

Please try to talk your husband through, please try as much as you can to ignore the EU institution as have found them utterly useless including the MEP, I will tell you what they are good at (ACKNOWLEDGEMENT), they are very good at acknowledging your complaints, and they will take about 2 months to write a complete undesiring reply to tell you why your complaint doesn't fall within their remit or some nonsense.

The flagrant abuse of the EU law makes the institution a joke some times, personally have found the Germans more respectful and adhering. If you ever get the golden chance to get your husband on a Paris bound flight, please fill yourself with joy as that will be your only chance to hurt them entering without a visa pisses them off, and I'd just like them to be on the receiving end and see how it hurts. The worst case scenario would be detaining your husband in France and its very very unlikely, unlikely I say because the French borders are smarter to know it wouldn't end up good with them. the court is your last resort worst case it gets to the CJEU, and you know before it gets to that point a judge with a common sense would have awarded you your rights, there are enough verdicts on this issue already than going for a new one.

You could certainly apply at the German embassy if there is any in Pakistan, try and exchange few correspondence with them before submitting your husbands application, if they pretend not to understand the directive please post back I will guide you on how to go.

Good luck

Thank you so much for your advise. This is what I am worried about. I dont want to see my husband being detained at the French border, I wouldn't even know who to call or what to do... I think id need to research on French based EU Immigration rights institutions in France before we leave. Yes, I have made so many various complaints to various institutions and you are absolutely right. I complained to the EU Ombudsman and of course my complaint "didn't fall into the scope of their work". The UK SOLVIT know this very well and are playing the situation to their advantage. I don't know what they get out of it. Its highly frustrating to say the least.

I have emailed, last week, a contact at the UK based BIS, who deals with Posted workers and self employed people within the EU. All I did was ask for the A1 form in order to post myself to France as a self employed person, but to keep myself under the UK welfare and tax system. I still haven't got a reply from them yet. From the down rotten basic to the higher end of the EU institutions, they are all utterly useless. Even getting my rights as a British Citizen in order to work in France seems like a chore.