Consequences of UK ILR on rights of EEA family members?

[virtual-writer]

Indefinite Leave to Remain is granted by the UK authorities when applying the UK immigration rules, not EU rights of residence under the Directive 2004/38.

What are the consequences of this fact on the rights of free residence and movement of EEA citizens and their family members?

In Directive 2004/38 Article 20 the kind of permanent residence card that the Directive covers is explained. Does this mean that EEA family members residing in the UK don't have the rights of free movement as mentioned in the Directive after attaining permanent residence (ILR)?!!

[Directive/2004/38/EC]

You are right, ILR is the concept under UK rules. A permanent Residence Card is the concept under the EU rules. Both give similar rights to holders for day-to-day life living in the UK.

Holding a EU Residence Card was intended to guarantee visa free travel to all member states of the EU. It does work within the Schengen area for Schengen issued cards. The UK and Ireland have both written their transpositions of Directive 2004/38/EC to allow visa free travel only to people who have a Residence Card they issued.

Interestingly, the German embassy web site in Dublin says that people with an Irish Residence Card (Stamp 4EUFam) can get visa free entry to Germany. When I talked with the border police in Germany, they had never heard of this and could find no reference to it in their reference material.

[virtual-writer]

According to SOLVIT it should make no difference whether it is a UK issued ILR or another EU country's issued permanent residence card. It should be equally applicable on both.

This is what the lady at SOLVIT thought about the matter when i spoke to her just a minute ago.

[Fairtrade]

I know this might have been answered before in a previous post but can anyone that knows the EU law tell me what happens if a 3 country national get married to schengen county national like Germany for instance. That 3 country national may then apply for a European Residence Card based on the fact of marriage to an EU national. Will this give the 3 country national also visa free travel to the UK based on the fact that they hold a European Residence card or will that person have to apply for a seperate UK visa to visit the UK seeing the Uk is not part of the schengen agreement but is a European Union member?

So basically would a European Residence card be accepted at a Uk border seeing that the UK is also a EU country?

[Docterror]

Theoretically speaking it have been intended by the European Commission that a Residence Card issued to the non-EEA family member by a EU Member state is valid in all the other EU Member states as well. Which would mean that a Residence Card issued by UK should be valid in France or Estonia or Romania and vice versa.

But due to some factors like a bit of ambiguity in the way that particular part of the Directive is written and also the way it is being implemented by the different EU countries this idea is still only utopian. Hopefully in due time with more challenges from people denied these rights and further clarifications from the SOLVIT to the respective governments, this will become a reality. But till then if the holder of the Schengenland issued Residence Card will have to get a visa albeit free of charge and with minimal formalities at accelerated process (atleast theoretically) if he need to fly to Bulgaria, Czech or the UK. The fact that they are free to travel in the Schengenland owes more to the Schengen agreement rather than to the Directive 38/2004/EC.

[Fairtrade]

Thanks very much for the info. Appreciated. So Directive 38/2004/EC is not being implemented yet by the EU but we could possibly in the future look forward to visa free travel with a EU residence card.

[Docterror]

So Directive 38/2004/EC is not being implemented yet by the EU

No, No! It is being implemented but there some wrinkles in its execution by different Member states that needs to be ironed out of which the issue at hand is one. That's all.

[jdey123]

This is a useful link. It's the handbook which is issued to Schengen border guards, but contains info applicable to all EU states:-

http://www.statewatch.org/news/2006/dec ... ook-06.pdf

Section 3.1 says that family members accompanying an EU citizen have freedom of movement around the EU. However, if your non-EU citizen family member doesn't have permanent residence, then they either have to obtain a visa (will be free) or prove to the border guard that they have the freedom of movement. The border guard isn't allowed to just turn them away just because they don't have a visa, and they're not required to answer questions about means of support, where they're staying etc.

By family members, it means:-

1. Spouse (includes civil partnership)
2. Any children under the age of 21
3. Any parents that are dependent on you.

[ms2002sss]

Ok let me get this straight... In a bit of a rush if I have this wrong. Travelling in 5 days time!

I have a British passport.
My wife has a Chinese passport with ILR.
My Child has a British passport.

We are travelling from London to Ibiza.

So without a schengen visa she will get stopped.
But can say she is with me and they will let her in.
If not mention point 3.1 of the Schengen handbook?

I want this all to be smooth, as we are travelling at a late hour, have a young child, and the mrs is pregnant.

[Directive/2004/38/EC]

I have a British passport.
My wife has a Chinese passport with ILR.
My Child has a British passport.

So without a schengen visa she will get stopped.
But can say she is with me and they will let her in.
If not mention point 3.1 of the Schengen handbook?

I want this all to be smooth, as we are travelling at a late hour, have a young child, and the mrs is pregnant.

Actually you want to mention Directive 2004/38/EC.

Make sure you travel with your marriage certificate and with your child's birth certificate. Also be sure to carry the emergency contact number for the British embassy in Spain. If you have a prepaid cellphone, make sure you travel with a lot of credit already loaded to allow you to call the embassy yourselves!

Outside normal working hours (see Opening hours), we operate a Consular Emergency service, details of which can be obtained by calling 91 524 97 00. If needed, the Duty Officer will respond to any calls within one hour.

Finally, you should print out a copy of Directive 2004/38/EC in English and in Spanish, and carry that with you. This is the legal basis of allowing entry without a visa. http://eumovement.wordpress.com/directive-200438ec/

[Directive/2004/38/EC]

Ok let me get this straight... In a bit of a rush if I have this wrong. Travelling in 5 days time

Here is an older posting from somebody who also went to Spain and whose wife entered on the basis of Directive 2004/38/EC.
http://www.immigrationboards.com/viewtopic.php?t=10210