I emailed your europe and now I don't know what to do this is there answer
You wonder whether Article 5 paragraph 2 Directive 2004/38 which contains a visa exemption subject to the family member having a residence card issued under Article 10 Directive 2004/38 is equally valid for the holder of a Permanent residence card which does not stipulate that the holder is the family member of an EU citizen.
I. Strict reading of Directive 2004/38:
A strict reading of Directive 2004/38 would compel a negative to the question, given that the condition precedent for the triggering of the visa exemption under Article 5 paragraph 2 is the holding of a residence card under Article 10 of Directive 2004/38. This strict reading of the provision in question is what the Spanish authorities have given you, by reliance on the relevant Real Decreto. This is why the Spanish authority is advising you that you must apply and obtain a Spanish entry visa (the so-called Schengen visa).
Real Decreto 1161/2009 from the 10th July 2009 was published in the Bulletin Oficial del Estado (BOE). This Real Decreto provides the following in its single articulation:
«La posesión de la tarjeta de residencia de familiar de ciudadano de la Unión, válida y en vigor, expedida por otro Estado parte en el Acuerdo sobre el Espacio Económico Europeo, eximirá a dichos miembros de la familia de la obligación de obtener el visado de entrada y, a la presentación de dicha tarjeta, no se requerirá la estampación del sello de entrada o de salida en el pasaporte.»
Which translates into:
“Possession of a valid residence card as the family member of a Union citizen, issued by a State party to the European Economic Area shall exempt the said family members from the obligation to obtain an entry visa, and upon production of the same, the passport of the Residence Card holder shall not require any entry or exit stamp”.
Please find the link to the following page of the Spanish Bulletin (BOE):
http://www.boe.es/boe/dias/2009/07/23/p ... -12207.pdf
II Broad Reading of Directive 2004/38:
However, Directive 2004/38 has been interpreted by the Court of Justice of the European Union to read that its provisions should not be limited or interpreted restrictively, as held under paragraph 84 of the Metock Ruling Case C-127/08. We therefore submit that Article 5 paragraph 2 Directive 2004/38 should be read in a broad way.
Given that you have obtained a permanent residence card on the basis of 5 years residence in the UK as the family member of an EU citizen, and that you continue to be married to your wife and to travel with her to other Member States of the EU, a broad interpretation of Article 5 paragraph 2 may arguably enable you to travel to other Member States without having to process an entry visa. Accordingly, you should be able to rely on Article 5 paragraph 2 Directive 2004/38 to argue that you should not have to process a Schengen visa in order to travel with your wife to other Member States of the EU and to also argue that a way to transpose Directive 2004/38 with the useful effect contained in Article 5 paragraph 2 might be to have your UK permanent residence card stipulate that you continue to be the family member of an EU citizen;
Having said that, a way round the issue may be for you to process an application to become a British citizen by way of naturalization (when you are eligible):
http://www.ukba.homeoffice.gov.uk/briti ... alisation/
This would resolve the issue and enable you to acquire EU free movement rights directly, by being an EU citizen in your own right.
However, please note that there is no express binding authority for the broad reading described above.
In the absence of such binding legal authority, you are advised to process a Schengen visa to facilitate your travel across the EU (given the unlikely scenario that a Member State would voluntarily expand the scope of Article 5 paragraph 2 Directive 2004/38; this is even more unlikely given that in practice, it is the airline which enforces visa on passengers: accordingly, you are likely to be denied boarding the plane to travel to Spain by the airline).
What The hell can I do now ?
