Visit to Netherlands with limited leave to remain in UK

[dhcp]

Hi everyone,

I want to go to Netherlands and my passport is stamped with Limited leave to remain in UK which expires next year. Im a Kenyan citizen married to a British Citizen.

Now looking on their website it states:-

Holders of a Certificate of Identity with limited leave to remain in the United Kingdom are not recognized by the BENELUX (Belgium, The Netherlands and Luxembourg) countries.


Now I believe my certificate was kept by the Home Office when my passport got stamped. Its basically the same what is now actually stamped in my passport. Is what is stamped in my passport the same as the documenst I had?

Will I be ok to travel there or to any BENELUX country?

thx in advance

dhcp

[Directive/2004/38/EC]

Now looking on their website it states:-

Holders of a Certificate of Identity with limited leave to remain in the United Kingdom are not recognized by the BENELUX (Belgium, The Netherlands and Luxembourg) countries.

Now I believe my certificate was kept by the Home Office when my passport got stamped. Its basically the same what is now actually stamped in my passport. Is what is stamped in my passport the same as the documenst I had?

If I understand correctly, the Certificate of Identity is something you had at a time when you did not have a passport. Now that you have a Kenyan passport, you have surrendered the Certificate of Identity. Your "leave to remain" is now stamped in the passport.

Will you be travelling with your spouse to the Netherlands?

If you are travelling with your spouse, then you just need to apply a the Netherlands embassy for a visa. The visa is free (since you are married to an EU citizen) and is a very straight forward application. I think they will require you to visit the embassy, but they are still pretty much required to issue it if the marriage is not a marriage of convience.

[dhcp]

Yeah, will be travelling with spouse. I was still under the impression that I have to pay for visa.

The certificate of identity was only given once I recieved my passport back from the Home Office but was given on a separate paper. I had to send passport back to them in order for them to put that certificate onto my passport.

[Directive/2004/38/EC]

If you are married to a European citizen, and will be traveling with them, you do NOT need to pay for the visa. Ever!

You have a Kenyan passport right now? Do you also have a UK issued "certificate of identity" in your passport??? Or just the leave to remain...

[Rozen]

Hi dhcp.
I am a non EU national who is married to a Dutch man, who is exercising his treaty rights (working) here in the UK. I have Leave to Remain in UK stamped in my passport, and when I applied for a Schengen Visa to visit Holland with my husband, all I needed to show was my valid non-EU Passport and our marriage certificate. We went to the embassy in person, and there was absolutely no fees to be paid for the visa, as I am a family member (in this case, spouse) of an EU national. I would, however, have had to pay the fees, had I not been travelling with him.
You should be alright. Good Luck!

[mads]

So if you are not travelling with your husband, how will they know you did not pay for the visa to start off with?

[dhcp]

If you are married to a European citizen, and will be traveling with them, you do NOT need to pay for the visa. Ever!

You have a Kenyan passport right now? Do you also have a UK issued "certificate of identity" in your passport??? Or just the leave to remain...

residence permit which says limited leave to remain

[Directive/2004/38/EC]

residence permit which says limited leave to remain

Good. Then just ignore their web site.

Just apply as the happy spouse of an EU citizen. When you fill out the form, do not fill in any of the boxes marked with a star (*). And submit with your partners passport and marriage certificate.

Enjoy the Netherlands. It is a pretty amazing place!

[Directive/2004/38/EC]

So if you are not travelling with your husband, how will they know you did not pay for the visa to start off with?

They may or may check at the border. They can then turn you back. But that should not interfere with further travel done with your partner.

[Docterror]

So if you are not travelling with your husband, how will they know you did not pay for the visa to start off with?

They may or may check at the border. They can then turn you back. But that should not interfere with further travel done with your partner.

Directive/2004/38/EC, if they do ask for your EEA spouse, cant the non-EEA family member just claim that he/she paid for the visa and do not have the receipt on person even if the visa was acquired free of charge stating that the spouse will be travelling? Any way that you know of for them to verify about payment information at the border?

[Rozen]

Personally, I would not take the risk of saying that I paid for my visa, when in actual fact I did not pay. In section 44 of the visa application it clearly says,

"I am aware that any false statements will lead to my application being rejected or to the annulment of a visa already granted, and may also render me liable to prosecution under the law of the Schengen State which deals with the application."

It really isn't worth the risk. I believe that honesty is the best policy! But hey, that's just my view. To risk, or not to risk, it's entirely up to the individual concerned.

[Docterror]

I really do agree with you that making false statements like claiming to have paid for the visa while not having really done so is a dumb, idiotic strategy when you weigh it against the risks and I certainly would not recommend it.. ever.

It was just a hypothetical question in case some non-EEA spouse decides to trim in on the requirements of getting all the other evidence for the Schengen visa as a visitor without the EEA family member by claiming that the EEA spouse will be travelling and save a few quids in the process as well.

[Dawie]

So if you are not travelling with your husband, how will they know you did not pay for the visa to start off with?

Apparently it is written in the visa that your EU partner has to accompany you.

[Directive/2004/38/EC]

Let me add my agreement to this. Lying is a bad idea, especially on visa applications.

But there are some interesting issues here, maybe best illustrated by an example.

You decide to go with your spouse for a weekend in Amsterdam (which is very pretty around this time of year). You apply for a 3 month multi entry visa, which is free and (relatively) low hassle because you are the spouse of an EU citizen. A few weeks later you then need to go (alone) to Paris for a working day-trip, while your existing 3 month visa is still valid.

Do you then need to apply for a new non-spouse Schengen visa or can you just use your existing visa? Is the Schengen visa sometimes stamped to say this it is issued to an EU family member or can only be used in conjunction with a travelling EU family member?

You are (almost) guaranteed entry when you are travelling with your EU spouse. Without the spouse you will be no better than any other normal visa holder.

It would be interesting to find the precise wording regarding issuing the Schengen visa to family of EU citizens. I would not be surprised if it is a 100% normal Schengen visa which is issued at no cost when the applicant is spouse of EU citizen and is intending to travel with their spouse.

[Directive/2004/38/EC]

I called the German embassy to check this hypothetical example.

The person I talked with said that if the non-EU spouse has a valid multiple entry Schengen visa (Germany also issues non-Schengen visas), then the visa can also be used for travel without the EU spouse.

This information agrees with practical experience.

[alan and oscar]

Oscar had a multi-entry schengen visa from the spanish consulate in December - it says nothing about me travelling with him (tho in fact we did travel together). We presented our civil partnership certificate and had the application accepted without charge. It had not occurred to me that he might have had problems if he had travelled alone, but I would be interested to know if anyone has had such problems for future reference.

[alan and oscar]

Further to my last post, I should just say that Oscar's visa does not mention "EU family member" at all and there is nothing to suggest Oscar did not apply as an ordinary individual 'in his own right'.

I have also had a quick look at the Directive and although Article 3 seems to prescribe that the rights extend (only) to the family members who 'accompany or join them', it is interesting to compare Article 5, the right of entry, where there is no reference to 'accompanying' the EU national with Article 6, the right of residence, where the family member must 'accompany or join' the EU national.

Interestingly, the notes accompanying the Schengen application form (at least on the Spanish Consulate's website) say spouses of EU nationals receive their visas free of charge without specifying they must be accompanied by the EU national.

This all may suggest that there may be no such limitation after all? (at least for Schengen tourist visas as opposed to a visa granted to a spouse who wishes to 'reside' in another member state with the EU national)

[Docterror]

I have also had a quick look at the Directive and although Article 3 seems to prescribe that the rights extend (only) to the family members who 'accompany or join them', it is interesting to compare Article 5, the right of entry, where there is no reference to 'accompanying' the EU national with Article 6, the right of residence, where the family member must 'accompany or join' the EU national.

Alan and oscar, it is quite possible that what you have noticed might as well be true. But I am quite troubled with (2) of Article 5 which states:-

Family members who are not nationals of members state shall only be required to have an entry visa in accordance with Regulation(EC) No 539/2001 or, where appropriate, with national law.

The only instance 'the national law' is applied to non-EEA family members is when they are not travelling or joining their EEA family member. In all other instances whether it be for visit or for residing they are covered by the Directive.

I do not think that the national law mentioned here is to be regarded as the national law which is derived from Directive 2004/38/EC like the Immigration(EEA) Regulations 2006 over here in the UK. Had that been the case, they should have that terminology at almost all the paragraphs of all the Articles.

This all may suggest that there may be no such limitation after all

From all the input you have given so far and from the information Directive/2004/38/EC has unearthed, its safe to assume that the Schengen territories are not bothered to wrestle over such trivial technicalities and would be glad to issue visas as long as the non-EEA national is a family member of an EEA national.

Anyone with contrary deductions are welcome to share their views.

[alan and oscar]

Docterror,

I am also worried by this, especially as I have looked into this a bit more now as a result of your post.

I think the 'national law' referred to in Article 5.2 is the law governing visa nationals for non-Schengen countries such as the UK. Regulation 539/2001 prescribes the list of countries who do and do not require a visa but the UK (and Ireland) opted out of this as it was a necessary due to opting out of Schengen. This means all Schengen countries have the same list of visa nationals (otherwise the system would be unworkable) but the UK (and Ireland) remain entitled to enforce their own (different) lists on who requires a visa according to their own 'national' law.

I have also looked at the implementation of the Directive in the UK and in Spain (I speak good tho not perfect Spanish as my partner is Colombian). If we thought (as I did originally) that the intention was for an EC national to be able to take his non-EC visa national family member on holiday without a visa, that is not how it has been interpreted by those countries at least. Looking at the UK Regulations and the explanation of the rules on the UK embassy in Prague, the UK seems to be confining the EC family permit (which gives the exemption from a visa requirement) to where the EC national has MOVED to the UK and the family member is going to join or visit him/her. A Spanish national wanting to take his Colombian spouse on holiday to the UK would not seem to be covered. (nor is their even a suggestion that the visa the Colombian would require would be given 'special treatment' under the free/accelerated procedure (ie Reg 12(4) of the 2006 UK Regulations doesn't apply to 'visits')). Neither do they recognise 'residence permits' from any other EC country as being sufficient.

The Spanish rules are different in that the 'entry' provision DOES make it clear that it only applies where the EC citizen accompanies (or joins) the family member (which Article 5 of the Directive doesn't, see my earlier post) and it says that it must be granted free and on the basis of an accelerated procedure (ie this IS wide enough to cover holidays). But the exception to this is where the family member has a family residence permit issued by ANY Schengen country (ie not just by any Spanish consulate). Strangely tho, a Schengen resident permit (family or otherwise) would allow you to visit any Schengen country anyway (ie without the Directive).

The worrying conclusion may be that the Directive may not (so interpreted) even give the right to a family member to get a tourist visa even when the EU national travelling with him. (free of charge or not) I hope I am wrong but the Spanish national who wants to bring his Colombian partner to the UK for a holiday, may not be able to rely on Directive (unless the Spanish national is planning to live in the UK) and the Colombian partner will have to apply for a UK tourist visa under UK law (as a visa national under UK national law). The contrary situation, which is my situation, is that a UK citizen wanting to travel to Spain for a holiday with his Colombian partner (Oscar in my case) would need a Schengen visa for the Colombian partner, but it ought to be granted free on the basis of an accelerated procedure so long as they (ie we) are travelling together. The fact that Oscar has a UK residence permit is not enough as UK is not a Schengen country.

However, A Dutch citizen with a Colombian partner who has a Dutch family residence permit would be able to visit Spain for a holiday without the Colombian requiring a visa, if travelling together. (But the Colombian could come anyway without relying on the Directive by virtue of Schengen). However, the Dutch citizen could not come to the UK with his partner relying on the Directive, as the Dutch residence permit would not be recognised and the UK 2006 regulations would only apply if the Dutch citizen was MOVING to the UK. A UK tourist visa would need to be applied for and I don't think there is any obligation (under the UK Regs, which may not implement the Directive correctly in tnis respect) to issue it free of charge.

Sorry if this is complicated but I think it is a mess!

Would be interested in other views.

[alan and oscar]

Further to my most recent post, for yet another inconsistent implementation (tho I don't read Dutch and it may be that the website doesn't reflect the law) see the Dutch position at
http://www.netherlands-embassy.org.uk/v ... /visa_fees

Note that an "EEA family permit for the UK" is required to get the schengen visa free. (ie looking at whether there is a family permit for the country you are travelling FROM not TO). In contrast, an EEA family permit for the UK is also required for travel TO the UK by a family member under the Directive, as implemented by the UK 2006 Immigration Regulations.

So going back to my example from the last post, if a Spanish national moves to the UK with his Colombian partner, having secured an "EEA family permit for the UK" for the latter in advance, the Colombian will not need to pay for a Schengen visa to subsequently visit Holland. But it is confined to this very limited situation. So we would have to pay for a Schengen visa from the Dutch embassy in the UK since Oscar does not have (and cannot get) an EEA family permit for the UK. (Though we did get and should still get (according to the Spanish implementing law) a Schengen visa free from the Spanish consulate in the UK, which would also allow us to visit Holland!).

Does anyone else think a lot more thought should have gone into the drafting of this Directive! For a start the failure to define clearly the exemption available to holders of a 'residence card of a family member of a union citizen' has led to differing interpretations (eg does it mean issued by the country you are travelling to (the UK position) or arriving from (seemingly the Dutch position) or issued by any Schengen country (the Spanish position)).

[Docterror]

My apologies to the OP for being an accomplice in hijacking your thread.

Sorry if this is complicated but I think it is a mess!

Where is the fun if everything was simple and there is nothing to debate about. Since yours is a long post, I will dissect it and then put across my views.

the UK seems to be confining the EC family permit (which gives the exemption from a visa requirement) to where the EC national has MOVED to the UK and the family member is going to join or visit him/her.A Spanish national wanting to take his Colombian spouse on holiday to the UK would not seem to be covered. (nor is their even a suggestion that the visa the Colombian would require would be given 'special treatment' under the free/accelerated procedure (ie Reg 12(4) of the 2006 UK Regulations doesn't apply to 'visits')).

I do not think that it is true for a couple of reasons-

a) A Spanish national wanting to take his Colombian spouse on holiday to the UK will be covered by the Directive. How do we know this? Just scroll the page up a bit and look at Regulation 12 (1) which states:-

An entry clearance officer must issue a EEA family permit to a person who applies for one if the person is a family member and -

(a) the EEA national -

(i) is residing in the UK in accordance with these Regulations, or

(ii) will be travelling to the United Kingdom within 6 months of the date of application and will be an EEA national residing in the UK in accordance with these Regulations on arrival in the UK; and

(b) the family member will be accompanying the EEA national to the UK or joining him there .....

From that it is pretty clear that its not necessary that the EEA national must have already moved to the UK and the non-EEA family member must only be joining or visiting him/her to be eligible for the EEA family permit.

(b) The second reason that I do not believe it to be true is due tothis flowchart from Entry Clearance instructions which clearly shows that a non-EEA visa national travelling with the EEA principal should be issued a EEA family permit... and so will be on an accelerated process.

Looking at the UK Regulations and the explanation of the rules on the UK embassy in Prague,

I really would not bother read too much into the information posted in the British Embassy's website in Prague as (to borrow a phrase from Dawie) it has more holes in it than a swiss cheese. A simple example-

Do my family members need an EEA family permit if they are coming to visit me in the UK?
Yes. Your family members will need to get an EEA family permit if they would normally need a visa to travel to the UK or if they are coming to live with you permanently or on a long-term basis. Family members who are not visa nationals do not need an EEA family permit to visit you if their visit will last less than six months.

Hold on! Wait a minute! How did visit to the UK for the visa national family member suddenly become "live with you permanently or on long term basis" while the non visa nationals still are only visitors? Magic?

The worrying conclusion may be that the Directive may not (so interpreted) even give the right to a family member to get a tourist visa even when the EU national travelling with him. (free of charge or not) I hope I am wrong but the Spanish national who wants to bring his Colombian partner to the UK for a holiday, may not be able to rely on Directive (unless the Spanish national is planning to live in the UK) and the Colombian partner will have to apply for a UK tourist visa under UK law (as a visa national under UK national law).

I hope I have made your hope come true and proved that the above will necessarily be the case. I look forward to any doubts pertaining to the matter.

I think the 'national law' referred to in Article 5.2 is the law governing visa nationals for non-Schengen countries such as the UK. Regulation 539/2001 prescribes the list of countries who do and do not require a visa but the UK (and Ireland) opted out of this as it was a necessary due to opting out of Schengen. This means all Schengen countries have the same list of visa nationals (otherwise the system would be unworkable) but the UK (and Ireland) remain entitled to enforce their own (different) lists on who requires a visa according to their own 'national' law.

The more I look at it the more I believe that you do actually have a point and I have to reluctantly accept that your explanation does make more sense. That way Article 5 does indeed not strictly say that the non-EEA family member has to be accompanied or going to join EEA family member to avail of the free movement.

Why reluctantly? Because we already know from the entry clearance guidances that non-EEA visa national family members have to qualify for the UK visa just like any other ordinary person and the favour is happily reciprocated by our Schengen friends to us and our family members.

Moreover, such laws are interpretted with the big picture in sight and omissions in some part of the Article does not alter the bigger picture. Such "omissions" can be spotted in other parts of the Directive as well. For example, paragraph (5) of the introductions prior to beginning of the Articles states-

The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of their nationality.

If someone was to interpret it to say that the family member should be able to free to take up residence in the UK while the EEA family member was in Poland, technically there is a point as there is no mention about the EEA family member having to be with the non-EEA family member in the member state to avail of the rights. I guess we will never know unless someone was to challenge these minute points and find it out for us.

So we would have to pay for a Schengen visa from the Dutch embassy in the UK since Oscar does not have (and cannot get) an EEA family permit for the UK. (Though we did get and should still get (according to the Spanish implementing law) a Schengen visa free from the Spanish consulate in the UK, which would also allow us to visit Holland!).

I do not really believe that what is posted in the Dutch Embassy website to be true. A quick email to the Dutch embassy should clear that even applicants on the spouse/CP visa should get the visa free of charge.

eg does it mean issued by the country you are travelling to (the UK position) or arriving from (seemingly the Dutch position) or issued by any Schengen country (the Spanish position)).

There is no need to confuse yourself more than necessary. As things stand, the Residence Card issued by a country will get the holder entrance into that particular country. But since Holland and Spain is part of "Schengenland" the Residence Card issued by Holland can be used to enter Spain and I will be dumbfounded if the Dutch were to turn away someone with a Residence Card issued By Spain. Again Para(2) of Ariticle 5 could have been better written to specify whether the Residence Card issued by a member state will get the holder into only that particular member state or to all other member states as well.

If you want to see how inconsistent some countries are in implementing the Directive, just head over to Ireland forum and have a look at all the "fun" the non-EEA family members are having over there.. now thats pure adrenaline! I guess you will have to wait a couple of years to see some consistencies in all the member states in implementing the Directive.

[Directive/2004/38/EC]

Further to my most recent post, for yet another inconsistent implementation (tho I don't read Dutch and it may be that the website doesn't reflect the law) see the Dutch position at
http://www.netherlands-embassy.org.uk/v ... /visa_fees

Note that an "EEA family permit for the UK" is required to get the schengen visa free.

An "EEA family permit for the UK" is definitely not required to get a free schengen visa from the Netherlands. The web site is just plain wrong.

Sadly the visa web sites of many countries often contain incorrect information, which I think sometimes reflects neglect and other times suggests wanting to tell a partial story.

(Some of the Irish web sites say that only a husbands/wives gets a free visa, while other say that spouse and children get the free visa, and the reality is they also issue free visas to gay couples with civil partnerships and to other non-traditional family members).

Some parts of Directive 2004/38/EC are not as clearly written as they should be. Having a Residence Card in any EU country should mean you no longer need a visa, but countries have carefully written their transposition legislation to refer to "the Residence Card" that they issue, rather than "a Residence Card" issued by a member state.

But most parts of 2004/38/EC are brutally clear and are causing big adjustments to visa sections that are used to having absolute say on who gets a visa and who does not.

A normal visitors visa rejection from Germany says something like "under German law we do not need to tell you why you were rejected". For an application under EU law, they are only allowed to reject you if the relationship is fraudulant or if you are a National Security, National Policy or Public Health risk, and then they have to give you detailed reasons for the rejection.

[brownbonno]

Interpretation of the - Directive/2004/38/EC is a clear indication of the kind of world we live in,where disrimination becomes a part of our daily life.It can be deduced that it is theorically/pratically translated from national legislations to the Directive/2004/38/EC.
It is magnificiently clear that this discrimination is mostly in the interpretation of the immigration rules for non EU nationals.
The press are indeed keeping blind eyes to this indemic issues,but specialises in dimonising immigrants that help build europe.Well,''stop bitting the fingers that feed you''

[alan and oscar]

Thanks to both Docterror and Directive for taking the trouble to read and respond to my posts!

I don't want to make too much of this, but will respond to one of your points, Docterror, (point (a) re Reg 12(1).) I think we need to focus on the EEA national rather than the family member to see what this is getting at. I agree that the Spanish national need not have already moved to the UK (from my example) and it also it covers where he will be "moving" to the UK within 6 months. But if the Spanish national is only coming here for a holiday, with no intention of moving here, on my reading of the section, the family member cannot apply for the EEA family permit.

I would be interested to know if any non-UK EC national has applied for an EEA family permit on behalf of their partner for a holiday to the UK.

But since I am more concerned with the contrary position (ie getting into Schengenland from the UK) and it seems that the Schengen countries are applying the spirit of the Directive more readily, maybe there is nothing to worry about.

However, now the Directive has been implemented in (I think) most EC countries, for practical purposes we need to be relying on the law of the country we are travelling to (including their law implementing the Directive) rather than the text of the Directive itself. No official is going to accept an argument based on the wording of the Directive if he has been trained on the basis of his country's own law, even if the implementation is arguably inconsistent with the Directive. That's why I am worried about the inconsistent implementation and Schengen 'embassy shopping'. Although I wouldn't (now) risk travelling with my partner without a visa for him, armed only with a copy of the Directive, there is still a danger of money being wasted by applying to the 'wrong' embassy and getting your visa application refused. And although the Dutch embassy may respond to emails in advance, there are many that you cannot enter any dialogue with in advance (the Spanish consulate being one, in my experience).

A shame we had these changes in the form of a Directive rather than an EC Regulation. Then the Member States would have had no choice how to implement. But I supposed that would have been impractical given the fact there are non-Schengen EC countries.

[Docterror]

But if the Spanish national is only coming here for a holiday, with no intention of moving here, on my reading of the section, the family member cannot apply for the EEA family permit.

I am sorry but I absolutely do not agree with you. The non-EEA family member coming for a holiday along with his EEA family member is covered by "Initial right of residence" according to Regulation 13 (2) of the Immigration (EEA) Regulations 2006 or Article 6 (2) of the Directive. For example, if the holiday is for just 1 week, then the EEA national and his family member is considered to be residing for one week. Such family members will be issued the EEA family permit in accordance with the Regulation 12 (1). Residence here is not meant to mean lets-pack-bags-and-make-UK-our-permanent-residence kind of an interpretation.

I would be interested to know if any non-UK EC national has applied for an EEA family permit on behalf of their partner for a holiday to the UK.

What is interesting to note here is that Oscar got a Schengen visa free of charge from the Spanish embassy and not the Spanish EEA family permit. There is no reason other than the Directive 2004/38/EC for a family member to obtain a visa free of charge from another EEA member state. But then why was it not called a EEA family permit? Because as far as I see it the Directive does not make it compulsory for such entry clearances to be called a EEA family permit. It can also be called visas. Hence the non-UK EEA nationals family member can also be issued a visa free of charge according to the Directive, but since the Immigration (EEA) Regulations call it a EEA family permit, the ECO will issue an EEA family permit in such cases.

A shame we had these changes in the form of a Directive rather than an EC Regulation. Then the Member States would have had no choice how to implement.

Even as a Directive, failure to comply can make the EEA member open to economic sanctions and claims for compensation especially if it were to go to the ECJ. All the problems that currently arises is mostly due to it being a very new Directive rather than it not being a EC Regulation.