Spanish residency nightmare for Thai family of UK Citizen

[MrDan1974]

Hello, I am new to this forum so please forgive me if I am mirroring anyone else's post, though I sincerely doubt it given the rate at which the Spanish Foreign Office change their minds and as my situation is pretty esoteric.
I am British and a Spanish resident, married to a Thai national and we have been living with my parents, along with our children in Spain for nearly a year. I currently (but not for long) enjoy the status of 'worker' in accordance with EU directive 2004/38/ec. We began the long and arduous task of obtaining an NIE/Residencia shortly after our arrival. My wife's Schengen visa ran out in February, along with the kids.
We have made several applications over the last year and after many trials and tribulations (including documents going missing in Thailand and been spoken to extremely rudely by nearly all and sundry in the Spanish bureaucratic machine) we made our latest application at our local office on September 19th of this year and we have heard nothing. My marriage documents have been stamped by the Thai authorities, Spanish Embassy in Bangkok and the Ministry of Foreign Affairs and (snigger..) Cooperation, so I'm pretty sure that they're okay so the only problems that I can forsee may arise from my financial situation i.e. I am currently unemployed but worked back in the summer as a contract teacher. We are all living (fairly comfortably I might add..) at the generous courtesy of my parents pensions, I am ashamed to admit, while I seek further employment.
Whilst I do appreciate the need for us to adopt the language of our guest nation, I do wish that these foreign offices would maybe provide some small assistance in English? Or at least not pretend that they don't know how to? My wife wasn't permitted to enroll in Spanish classes without her NIE!!
I digress...
Could anybody inform me of the rights of my wife and children to reside with me and my family in Spain? We are fully insured, my folks own their home outright and I feel we are being treated poorly by the Spanish immigration system. The people however, have been wonderful!

Any help at all would be most appreciated!!

[Lucapooka]

If you are self-sufficient based on your parent's income, you will need comprehensive sickness insurance for all your family to qualify for residence under EU rules. You say you are fully insured so I assume that is what you are referring to. I can't see why they are not accepting your applications but you have not said what reasons they gave to reject them (or is just that you have not heard any news having applied?) Have you considered contacting Solvit?

[MrDan1974]

Thanks Lucapooka!
We haven't heard anything back since applying nearly 2 months ago. I can only assume that they are trying to make things as difficult as possible! I have contacted SOLVIT a few times and will be doing so again.

Thanks again

[Lucapooka]

Well, two months is nothing! You would wait at least six months in the UK, under similar circumstances. Spain is notoriously difficult with regard to immigration but if you are entitled to residence cards they will eventually be issued.

[MrDan1974]

Thank you! Very encouraging!

[Directive/2004/38/EC]

The Residence Card must be issued within 6 months of application. Some member states issue them within a few days (Germany used to, but now it takes more than a month to issue the physical card), and some regularly take 6 months (Ireland and UK).

Note that if you have worked in Spain and have proof of your working in Spain, then you can also apply for an UK-issued EEA Family Permit for free. This will allow your wife and children to visit the UK or for you to move there. http://eumovement.wordpress.com/2011/12 ... -a-worker/ gives more details about the work requirement.

[MrDan1974]

great...just the reply I was looking for ..thanks!

[MrDan1974]

Apparently, my application and supporting documents have been sent to Alicante for processing. I do have an additional item which has recently come to light and I would like to submit it belatedly but where? I have searched the web for and email address for a foreign office/ministry in Alicante but I can't find one...do they mean the office in Altea? If anybody could give me an email address or a link, I'd be very grateful!
Many Thanks.

[eldane]

http://www.mpt.gob.es/es/ministerio/del ... ante.Sede1

Dirección:
C/ Ebanistería, 4 y 6 (Polígono de Babel)
03071 - ALICANTE
Teléfono: 96 501 93 00
Fax: 96 501 93 01
Horario de atención al público: 9 a 14 horas

Apparently, my application and supporting documents have been sent to Alicante for processing. I do have an additional item which has recently come to light and I would like to submit it belatedly but where? I have searched the web for and email address for a foreign office/ministry in Alicante but I can't find one...do they mean the office in Altea? If anybody could give me an email address or a link, I'd be very grateful!
Many Thanks.

[MrDan1974]

Thank you...documents sent!

[mastermind]

Read this European Commission's guide to know your rights: http://ec.europa.eu/justice/policies/ci ... _ec_en.pdf
(and to know what to talk to SOLVIT etc. about).

I suggest that you count that 6 months limit from your first application and press this issue via SOLVIT accordingly.
Also check out this thread: http://www.immigrationboards.com/viewtopic.php?t=66601
Also consider:
- complaining to the European Commission: http://ec.europa.eu/eu_law/your_rights/ ... rms_en.htm and http://ec.europa.eu/eu_law/your_rights/ ... hts_en.htm
- European Parliament: http://www.europarl.europa.eu/aboutparl ... tions.html
- European Ombudsman: http://www.ombudsman.europa.eu/start.faces
- writing to your MEPs and MPs, see http://www.writetothem.com/

I'd also document all cases when your wife were unable to exercise her rights (work, enroll to study etc.) provided by the law but not documented/certified by the local authorities within the time frame prescribed by the law (6 months) and sue the state for damages.
Also, according to the law your and your family members' rights do not necessarily need to be to confirmed by documents issued by local authorities' and can be attested by any other means (e.g. potential employers or education institutions should be satisfied that your wife is married to an EU national by being presented a copy of your passport and marriage certificate). See that guide above for details.

[mastermind]

Also, as it seems that your own status has been established once (by issuing a residence certificate to you by the state), you do not need to do anything anymore about it even if you ceased to satisfy the necessary conditions. (i.e. you have no obligation to prove anything to anyone anymore)
Consider this:
http://cadmus.eui.eu/bitstream/handle/1 ... sequence=3
Page 15:

Even more importantly, once residence in a new Member State is established, (126) non-discrimination on the basis of nationality applies to EU citizens even in the cases where they
objectively fail to meet the minimal requirements of secondary law necessary to establish residence at
the moment of the dispute. (127)

126
To which end a residence permit is issued, which is not strictly necessary, as the right emerges from the Treaties directly:
Case 157/79 R. v. Stanislaus Pieck [1980] ECR 2171; Joined Cases 389 and 390/87 G.B.C. Echternach and A. Moritz v.
Minister van Onderwijs en Wetenschappen [1990] ECR 723.
127
E.g. Case C-456/02 Trojani v. CPAS [2004] ECR I-7573. The Court underlined that to rely on Art. 12 EC [18 TFEU] a
residence permit is enough (para. 43).

[MrDan1974]

Thank you mastermind! Very interesting reading!...will let you know how we get on!

[EUsmileWEallsmile]

Spain's transposition of the directive gives the authorities 3 months in which to issue a residence card (ie for your wife).

http://www.boe.es/buscar/act.php?id=BOE-A-2007-4184 (see Artículo 8.4)

I trust you, the EU citizen already has a residence certificate. These are to be issued immediately on application to those who meet the conditions.

[MrDan1974]

Spain's transposition of the directive gives the authorities 3 months in which to issue a residence card (ie for your wife).

http://www.boe.es/buscar/act.php?id=BOE-A-2007-4184 (see Artículo 8.4)

I trust you, the EU citizen already has a residence certificate. These are to be issued immediately on application to those who meet the conditions.

The only proof that I have, confirming that we applied within a couple of weeks after arrival is copy of our Cita 4 email reply from the Foreign office in Altea. Do you think that this would suffice? and if they would have a record of our 'attempt' at application, which was never formally submitted until they had been in Spain for nearly a year?
We have had no reply after 4 months now should I wait until 6 months have passed before I start 'geeing' them up or should I get on their case immediately?
Thanks

[mastermind]

You need to contact SOLVIT: http://ec.europa.eu/solvit/site/index_en.htm
Give them whatever evidence you have.
If it does not help, there is a "central" email (of their office in Brussels i suppose). I'll find and post it in a sec...

[mastermind]

At the bottom of the following page http://ec.europa.eu/solvit/site/about/index_en.htm
there is a link saying "Please let us know whether the service you have received from SOLVIT fulfilled these standards." which links to: SOLVIT@ec.europa.eu

Check the following topic as well: http://www.immigrationboards.com/viewtopic.php?t=66601 "Problems with SOLVIT? Lodge a complaint HERE!"

[EUsmileWEallsmile]

Spain's transposition of the directive gives the authorities 3 months in which to issue a residence card (ie for your wife).

http://www.boe.es/buscar/act.php?id=BOE-A-2007-4184 (see Artículo 8.4)

I trust you, the EU citizen already has a residence certificate. These are to be issued immediately on application to those who meet the conditions.

The only proof that I have, confirming that we applied within a couple of weeks after arrival is copy of our Cita 4 email reply from the Foreign office in Altea. Do you think that this would suffice? and if they would have a record of our 'attempt' at application, which was never formally submitted until they had been in Spain for nearly a year?
We have had no reply after 4 months now should I wait until 6 months have passed before I start 'geeing' them up or should I get on their case immediately?
Thanks :D

Don't sit back, expedite it.

[MrDan1974]

Thank you very much for your advice!

[MrDan1974]

Well, the saga continues! Just as the six months were to run out I received a letter from the Oficina de Extranjeros in Alicante stating that as I hadn't submitted my documents in time, or in fact at all, my wife's application had been withdrawn. (This letter also bizarrely contained a shiny new NIE number for my wife)... BUT, I HAD submitted them well within the time stipulated and whats more I have proof! Of course I immediately wrote a letter back stating my case and provided the proof...I waited one month and received no reply..what happened? maybe the dog ate it! I wrote to SOLVIT and told them and they recommended that I reapply at the office in Altea. We had the interview today and the lady behind the desk told me that now my marriage certificate is older than 3 months and no longer valid BUT I had a conversation one year ago now, with a lady at the foreign ministry in Madrid who told me that this was NOT the case! But if they hadn't have mislaid my papers my marriage certificate would have been valid!
Of course I have already contacted SOLVIT but haven't had a great deal of joy from them in the past...any ideas? This is a nightmare and we are seriously considering going back to Thailand...

[EUsmileWEallsmile]

I have no fresh advice for you. The Real decreto says this about certification.

b) Documentación acreditativa, en su caso debidamente traducida y apostillada o legalizada, de la existencia del vínculo familiar, matrimonio o unión registrada que otorga derecho a la tarjeta.

Basically it means that a document certifying or demonstrating the family link or marriage should be translated, apostalised or legalised.

[EUsmileWEallsmile]

There is some information on the UK embassy website in Spain here.

http://ukinspain.fco.gov.uk/en/help-for ... n-marriage

[MrDan1974]

It's all getting a bit silly now. The latest situation is that my wife has been offered contract employment working as a chef at a local hotel but it looks as though the offer will now be withdrawn due to her not having a SIP card, which you can't get without a residencia, which she can't get because the Altea office say our marriage certificate is too old but other offices (foreign ministry in Madrid and SOLVIT) deny all existence of any '3 month rule' but when I request ratification or any further assistance, they never return my emails. Surly we have grounds for some kind of case? Maybe even sue for damages/loss of earnings? Does anybody have any suggestions as to what I should do next?

[EUsmileWEallsmile]

I can assure you that your wife can work provided that you are exercising treaty rights. Both the directive and Spanish transposition allow this.

Is there the equivalent of citizens advice? Otherwise, you may need to seek legal advice as to how to force a decision.

[MrDan1974]

Is it true that my marriage certificate will not be accepted when applying for residencia for my Non EU wife because it is over three months old and even though it has been legalised at the Spanish Embassy in Bangkok and the foreign ministry in Madrid?
The Oficina De Extranjero in Altea certainly seem to think so, contrary to the foreign ministry in Madrid and SOLVIT!
If there is no 3 month rule then how do I prove this?
Many thanks for any help rendered.