Visit to Netherlands with limited leave to remain in UK

[Directive/2004/38/EC]

The UK has their very own unique thing called an "EEA family permit". For various reasons they seem to want to approach things slightly differently than some of the rest of the European countries. Any non-EU spouse or family member of an EU citizen who wishes to accompany their partner can (and in some cases must) apply for one of these, and they are always issued for free. They are useful for a weekend holiday to the UK, or for a week of working in the UK or for a permanent move to the UK for work or studying or other treaty-rights allowed activity. The UK has just this one entry clearance (aka visa). With that on your non-EU passport, any employer can feel safe in hiring you.

Schengen countries have the short term "Schengen" visas, that they issue for free to all non-EU family of EU citizens.



The Directive is itself not perfectly written. And each of the countries in the EU have their own slightly individually imperfect transpositions into national law. The national law is then translated into procedures manuals for people who work issuing visas and work permits, and this may not be done fully correctly. And then the civil servant (at the embassies in the all those different cities) sometimes do not really understand fully the implications of the law or of those rules, and likely do not even realize they don't understand.

Each of these imperfections is what causes the challenge. If you are the hetero-sexual spouse of an EU citizen, you will have an easy time - they are use to dealing with cases like that. If you are the non-EU parent of a minor EU child, a situation clearly covered by the Directive, you will have to push and educate and talk to SOLVIT and petition the European parliament and have patience and maybe even hire a lawyer to ensure your rights are recognized.

And if you are the long term same-sex partner of an EU citizen, you will also likely have to push to ensure you do not have to prove your bank balance or a letter from your employer or pay a visa fee. The first 10 people will have to push, and then all the people who follow with the same situation will have it handled as a matter of routine.

Unfortunately there is no magic bullet. (And having it as an EU Regulation rather than a directive would not make so much difference). But push hard, because in the end the rights you have under the Directive are there!

[alan and oscar]

Thanks again for these posts. Docterror, yes sorry, you are correct about Reg 12. I had thought it strange that if you hopover to Frances for a weekend you would be treated as a French 'resident' (you would, of course, not be so for tax purposes) but there can be no other interpretation. I also looked at 21.4 of the of the Entry Clearance Instructions you referred to earlier and it confirms this by giving the example 'if an Indian spouse of a France national wants to come to the UK for a shopping trip, he/she needs an EEA family permit'. It also deals with the 'travelling together' point that we were dealing with much earlier in this thread (ie needs to be travelling with or joining partner in the UK). Otherwise the partner needs a visa under UK national law (not free of charge). A shame that ukvisas didn't put this example on their FAQs section of the website (which is just as bad as the UK embassy in Prague's website).

As for Oscar, he did apply before the Spanish implementation law came in (only became law on 28 feb 07). However, I doubt that it would be different now and I think "Directive" may be right in saying that Shengenland is still calling the "EEA family permit" a Schengen visa, at least for trips less than 3 months, and granting it free of charge. Whether that means that they will still continue to say nothing (on the visa itself) about it being issued to a "family member" or limiting it to situations where the travel is with (or to join) the partner still has not been resolved! I would have thought, tho, that had Oscar used his 'free of charge' Schengen visa (with nothing to show on its face that it was issued under the Directive) to travel on his own, he shouldn't have been refused entry because surely the holder cannot be expected to know whether his visa has been granted under national law or under the Directive unless the visa clearly states any limitations. Or perhaps not?

[alan and oscar]

Sorry for this further postscript but I couldn't resist looking at the Spanish implementation law on this and (in Article 8 of that law) they DO have an "EEA family permit" but it only needs to be applied for if the family member wishes to reside there for more than 3 months (ie applied for in Spain rather than in the Spanish consulate here before you travel). So perhaps there is a logic to this (and explains why Oscar would not get a Spanish "EEA family permit", even if he applied now)? It might also explain why Rozen (much earlier in this thread) got a Schengen visa free of charge rather than an EEA family permit from the Dutch consulate.

ie UK position, need EEA family permit before you travel to UK, free of charge
Schengenland, need Schengen visa, free of charge, for up to 3 months but apply in country of destination for an EEA family permit if you want to stay longer than 3 months.

Am steering clear of how Ireland, another non-Schengen country is dealing with this as my head is starting to hurt!

[Directive/2004/38/EC]

Sorry for this further postscript but I couldn't resist looking at the Spanish implementation law on this and (in Article 8 of that law) they DO have an "EEA family permit" but it only needs to be applied for if the family member wishes to reside there for more than 3 months (ie applied for in Spain rather than in the Spanish consulate here before you travel). So perhaps there is a logic to this (and explains why Oscar would not get a Spanish "EEA family permit", even if he applied now)?

In general with Directive 2004/38/EC, the idea is that for periods of between 1 day and 3 months, the EU citizen and non-EU family members do not need any special permission to move to a new country or to work once they are there. The exception to this is non-EU citizens who come from specific countries (so called Visa Nationals) who have to apply for a visa before hand. (The UK and Ireland also seem to do their own variation).

To move to Germany (as EU citizen with non-EU spouse) you just simply move there, find a place to live, register your address with the city, find work, and then once you have found work (and so are exercising treaty rights), you can apply for a Residence Card for the non-EU family members.

The simplified model is:
(1) move the new EU country
(2) start exercising treaty rights
(3) apply (if required or desired) at 3 months for documentation that you are exercising your treaty rights

And as always, it is worth checking ahead of time with the embassy concerned if you have an unusual situation or are unsure.

[alan and oscar]

Directive, thanks for this.
As a matter of interest, if Oscar (a visa national) and I were going to relocate to Spain, would he be able to just get a schengen visit visa (from Spanish or indeed any consulate) to get into Spain or would it be better to go to the spanish embassy and apply for the a visa of long duration (family reunification). The latter appears to be a possibility on the normal schengen visa application form although 4 copies of the form are needed instead of 2. I suppose what I am saying is do you have to be really up front about your plans to get into the country in the first place or could you simply make the decision to live their permanently when you get there, holding just a schengen visit visa (for the non-EC person).

Thanks

[Directive/2004/38/EC]

For up to 3 months, they should approve you based on your relationship to each other, and not based on what you want to do there. Work? Should be fine. Tanning? Should be fine too. If you know what you plan to do, I would say it when asked, just to be clear. But they can not turn you down except on very strictly limited grounds.

But there is nothing stopping you from going on vacation, and then realizing it is a place you really like. You quickly find, accept, and start work (all without going home). In fact that is encouraged by the Directive and by the EC. At that point the non EU family member(s) would likely need to apply for a Residence Card to simplify entry and exit from the country and to provide additional proof of their entitlement to work in the country. (The only sticking point is that employers may want to see proof of entitlement to work, and a Schengen visa in the non-EU family member's passport may not convince them).

That is how it should work. How the Spanish embassy in the particular city of London approach it is another matter. Note that the application forms for a short term visa and a long term visa are the same at http://www.maec.es/Consulados/Londres/e ... e+visados/
But if they give you a hard time, you should 100% approach EU's Solvit center, who make it their business to sort these things out.

[alan and oscar]

thanks, that's very helpful