Re-entering Schengen

[ticklishfeet]

Hi flyboy,

Thanks for the response! I will certainly keep that in mind for Switzerland. Do you know if I would need to register with the local commune immediately upon my arrival? And could I do this anyway, or only if I stay with friends?

I have heard from a couple of Swiss friends that driving from France into Switzerland, they will not stop the car (I would be going in a French-registered car) so I was wondering if anyone knows if it is possible to actually pull over and get out and get them to stamp a passport?

[flyboy]

Definitely possible to pull over and get an exit stamp from the french and then an entry stamp from the swiss. Done it quite a few times myself, especially the exit stamp from the french.

[ticklishfeet]

Hi flyboy,

Great, thanks for the info! Great to hear it firsthand too.

[geoffsinclair]

[quote=He is married to an EU citizen and so has a right of free movement in the EU, which depends only on his family relationship. Various court cases have made this very clear.

If he enters a country and does not have the documentation required by the the border guards, they are required by case law and by Directive 2004/38/EC to not turn him back without letting him prove by other means that he has right of entry (namely his dependent free movement rights)[/quote]

According to the response I received from Europa signpost service, this information is only partially correct. Apparently, (According to Signpost) you must be an EU national currently exercising your right to freedom of movement and your spouse must have a family permit, in order for that right to be extended to your non-EU spouse (or partner depending who you ask).

This is the response I got from Signpost;

"1. You should note that the EU rules on free movement allow for non-EU citizens to travel within the EU without the need for a visa in three situations.

The first situation is if you have been issued a residence permit as the family member of an EU citizen who exercises his or her free movement rights. Under Directive 2004/38, the partner of an EU citizen has a right to enter another EU country when that person has been issued with a family permit of an EU citizen. A family permit is issued to non-EU citizens who live with their EU partners in a country other than the spouse's country of origin.

From the information you have provided us, we understand that you are a British national residing in the UK. This means that you are not exercising your EU right to free movement because your are not living in an EU country other than the UK.

The second situation is if your husband has been issued with a residence permit by a country in the Schengen single travel area. There is another EU Directive that allows non-EU citizens who are resident in an EU country the right to travel within the EU without the need to obtain a visa. However, this Directive only applies to the EU countries that comprise the Schengen signle travel area. Unfortunately, the UK has opted out of the Schengen agreement and it therefore does not apply to non-EU citizens resident in the UK. The full Schengen members are Austria, Belgium, Denmark, Finland, France, Germany, Greece, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden (but not Ireland and the United Kingdom) plus Iceland and Norway (which are not EU members). The new EU member states that joined in 2004 and 2007 are not yet full members of the Schengen area. Unfortunately, this means your husband cannot benefit from the facility to use his UK residence permit to travel to other EU countries without the need for a visa.

The third situation is if your husband has been issued with a long-term resident permit as a non-EU citizen. There is a further EU Directive that allows non-EU citizens who have been resident in an EU country for 5 years or more the right to travel within the EU without the need to obtain a visa. However, again this Directive only applies to the EU countries that comprise the Schengen signle travel area. Unfortunately, the UK has opted out of the Schengen agreement and it therefore does not apply to non-EU citizens who have indefinite leave to remain in the UK.

Unfortunately, this means that your husband cannot benefit from the facility to use your UK residence permit to travel to other EU countries without the need for a Schengen visa."

If you had the patience to read the above then you would see that I have posed as my wife and asked the question. The last bit is dead wrong in my case as they assumed that my wife is British and she is not. I have gone to the Signpost service again to correct this and will report back. My wife is not British but lives in the UK and I am working on her work permit therefore we are both exercising the freedom of movement right. I have also asked Signpost, if I dont need a Schengen visa based on the above, then how do I prove this to immigration officals and airline check-in clerks?

Apologies for the lengthy post.

[Docterror]

...My wife is not British but lives in the UK and I am working on her work permit...

What is her nationality and what exactly do you mean by 'working on her work permit'? If you mean that you are a dependant/family member of an EEA national what sort of visa are you on exactly? Is it the Residence Card/Permit or on some Work Permit visa?

[tt]

My confidence in Europa signpost service has been a little dented in that they have claimed that (in their third scenario) non-EU Citizens who receive a long-term resident permit (after 5 years) get a right to travel freely within the EU, but that it apples only to the EU countries that comprise the Schengen single travel area.

Infact, it applies to all the EU countries except the UK, Ireland and Denmark.

[Docterror]

My confidence in Europa signpost service has been a little dented in that they have claimed that (in their third scenario) non-EU Citizens who receive a long-term resident permit (after 5 years) get a right to travel freely within the EU, but that it apples only to the EU countries that comprise the Schengen single travel area.

Infact, it applies to all the EU countries except the UK, Ireland and Denmark.

Infact their entire reply is riddled with mistakes. I will get back to it one by one when time permits.

[geoffsinclair]

My wife is Romanian, and I am listed as a "work permit dependant" on the document that is in my passport.

I think that the Signpost folks may believe that I want to move into Schengen space to reside with my EU spouse - not understanding the idea is that I want merely to visit for a short stay, but continue to reside in the UK with my spouse. The Dutchies in London insist that I need a Schengen visa, EU Directives be damned.

REALLY stupid that I am allowed to reside with my spouse in the EU but to visit I need a visa.

[Docterror]

Emotions aside... when did you get the status as 'work permit dependant' and what forms did you use to get the status? Has your wife been working for any lenght of her time here in UK?

[geoffsinclair]

Dont remember the forms, I do remember I had to go back home to apply, was not allowed to switch while in the UK. My wife has been working on her work permit since December 2004 continuously, with same employer. I was on a working holiday maker and then we were married in 2005 and then I went back home and applied and switched to work permit dependant status.

[Docterror]

OK! It makes more sense now. Back in 2005, since Romania was not yet a part of the EU, your wife would have been viewed as any other worker requiring a Work Permit and hence your visa would be only as a dependant of a work permit holder.

Since your wife has been in employment for well more than an year prior to 01.01.2007, she would be free of restriction to the UK labour market thereby giving her and you both full EU rights. But unfortunately, this cannot be proven without you holding a Residence Card or her holding an Registration Certificate.

So in attempting to apply for a visa to the Schengen territory, there is a chance that they might not acknowledge that she is exercising her treaty rights. It would still be worth a try to just head over with just your passports and the Marriage Certificate without getting the Schengen visa at all.

[geoffsinclair]

Yup got a further reply from the Signpost Service:

"Article 5(2) of the Directive 2004/38 states that the possession of a residence card of an EU country shall exempt non-EU citizen family members from visa requirements. For the purposes of this Directive it is of no consequence whether you yourself are a UK or a Romanian citizen. Furthermore, this Directive applies to all the EU Member States, not solely the Schengen States. Thus, for your husband to enter another EU country, it should suffice that he presents a residence card (issued in accordance with Articles 9 and 10 of the aforementioned Directive) and a marriage certificate.

You might also wish to have a print of the Directive you are relying on in order to convince the authorities. You can find the Directive from the following web-site:

http://eur-lex.europa.eu/LexUriServ/sit ... 770123.pdf

You should note however that Directive 2004/38 only applies when your husband is either travelling with you or joining you in the country where you reside. For his other travels, the EU countries may still require him to have a visa.

If you continue to face administrational (sic) difficulties in this regard, you have the possibility of leaving the matter to be decided by SOLVIT problem solving network. SOLVIT is a network in which EU member states work together to solve pragmatically problems which arise from the misapplication of Community Law by the administrative authorities. The service is free of charge and the approximate time required for reaching a decision is ten weeks. From the following web-page (which you get in all official EU languages) you shall find the contact information of your local SOLVIT -centre as well as the guidelines for submitting your case: http://ec.europa.eu/solvit/site/centres/index_fi.htm

You may also complain directly to the European Commission"

Right, they expect me to carry around a 47 page document and try to convince immigration officals...right. Can you imagine me trying to convince an immigration officer/police official that this piece of paper - in English no less - allows me the right to travel freely in ALL of the EU countries? I must be living in a different EU then.

[Directive/2004/38/EC]

Right, they expect me to carry around a 47 page document and try to convince immigration officals...right. Can you imagine me trying to convince an immigration officer/police official that this piece of paper - in English no less - allows me the right to travel freely in ALL of the EU countries? I must be living in a different EU then.

The 47 pages is actually the law in the EU. And is nicely available in quite a few languages if English is not enough.

But if it makes you uncomfortable to not have a visa, then by all means get a visa in advance.

[geoffsinclair]

Wrong, the Directive 2004/38 is being negatively interpreted by the Schengen issuing Embassies, and I DO NEED a visa to enter Schengen space. I know that the Signpost people say that the spirit of the Directive is supposed to allow visa free travel for non-EU spouses, but the truth is that ANNEX II countries still need a visa and the Schengen Acquis has been around for a longer time than the Directive and that is what embassies are relying on.

The UK does not have Schengen reciprocity, and they have flatly refused to recognise the validity of residence permits issued in other EU states. The other EU countries have told their embassies (probably) that the age old consular principle of reciprocity still stands and if the UK is taking that route then the rest of the EU will not recognise UK issued residence cards as being valid for the purpose of third-country nationals going visa free. Now for family reunification that’s fine, but it is being interpreted as a one-off, meaning, if your EU spouse decides to exercise their treaty rights by moving to and working in another EU member state then the non-EU spouse has the right to join, once. After that the non-EU spouse must register with a residence permit, it is not intended as a visa waiver, which allows multiple entry to nationals who always needed a visa. Yes you can join your EU spouse, regardless of your nationality, once in any one given country and settle. The right of freedom of movement is given to EU national and extended to their family members.

The threads I have read on this forum are dead wrong, I have asked the Schengen visa issuing embassies and they have all confirmed that non-EU nationals listed on Annex II still need a visa to enter Schengen space. Now emotions aside, but whom should I believe, the Schengen embassies or the OISC registered members of this forum?

[Dawie]

The threads I have read on this forum are dead wrong, I have asked the Schengen visa issuing embassies and they have all confirmed that non-EU nationals listed on Annex II still need a visa to enter Schengen space. Now emotions aside, but whom should I believe, the Schengen embassies or the OISC registered members of this forum?

It has been shown over and over again on this website that most Schengen embassies are either unaware of or else regularly and routinely flout the immigration laws of their respective countries as and when it suits them.

Wrong, the Directive 2004/38 is being negatively interpreted by the Schengen issuing Embassies, and I DO NEED a visa to enter Schengen space. I know that the Signpost people say that the spirit of the Directive is supposed to allow visa free travel for non-EU spouses, but the truth is that ANNEX II countries still need a visa and the Schengen Acquis has been around for a longer time than the Directive and that is what embassies are relying on.

Many Schengen countries have transposed the directive into law in their respective countries, so it is not something to be "interpreted" by some beaurocrat...it is the law. As I stated above, many Schengen embassies are either unaware the immigration laws of their countries or else couldn't care less.

[geoffsinclair]

It has been shown over and over again on this website that most Schengen embassies are either unaware of or else regularly and routinely flout the immigration laws of their respective countries as and when it suits them.

It is naive to think that Directive is a magic potion in reality, in terms of policy, EU border and immigration officals as well as airline check in clerks are very skeptical, its their job. If that was the case then the Work Permit.com website would have the Directive 38/2004 promoted in a screaming neon headline banner, instead they agree with the negative interpretation of the embassies as I have stated above.
http://www.workpermit.com/european_unio ... embers.htm

Many Schengen countries have transposed the directive into law in their respective countries, so it is not something to be "interpreted" by some beaurocrat...it is the law. As I stated above, many Schengen embassies are either unaware the immigration laws of their countries or else couldn't care less.

The way that the Directive has been interpreted here is to give freedom of movement, in a visa waiver manner which is inaccurate. This interpretation is an opinion based on the law, the embassies are also giving their opinion on the law. It is an ambiguous position, hence the lack of clarity despite the very individual circumstances of case law (Commission v Spain) and the delusional advice being handed out by the EU Signpost service. The EU as we all know is not a very friendly place.

Reality check.

[Docterror]

Now emotions aside, but whom should I believe, the Schengen embassies or the OISC registered members of this forum?

Emotions... and sarcasm aside, you should believe and do whatever you think is the right and easy thing for you.

All the "OISC registered members" of this forum has done is advice to the best of our knowledge...which is significant... on the basis of the law that is currently being executed within the EU. Even after that if you feel that the right step is to attempt entry into the Schengen territory is only with a valid Schengen visa, we will definitely not be standing in your way.

This interpretation is an opinion based on the law, the embassies are also giving their opinion on the law. It is an ambiguous position, hence the lack of clarity despite the very individual circumstances of case law (Commission v Spain) and the delusional advice being handed out by the EU Signpost service

There really is no ambiguity over here. If you let authorities to erode into your rights, they will have a field day doing so. But if you are someone for whom the whisper of your right is enough to get you into a fight-for-your-right mode, then no amount of websites or embassies will prevent you from getting it. But, hey, if even a 47 page printout is too much of a hassle.... I can understand that too.

Since I do not find it particularly endearing to engage with an individual who is trigger happy in accusing others of being wrong, inspite of the written law being in favour of the advice given, I will continue with a few examples of court cases etc so that courageous "naives" might find it useful will not be deterred in trying to enter the Schengen or any other EU countries without a visa in the presence of a valid Residence Card over here .

[Fairtrade]

The EU as we all know is not a very friendly place.

I agree 100%. If you don't have an EU passport, it is not that easy travelling within the EU. The EU makes out that the Schengen States will make it much more easier to travel within the EU! That is far from the truth!!

With a waiting list of three months for a schengen visa just to go to Spain for a holiday.

What if you still got family living in Europe like me?

My family had to get a letter from their council (at the cost of 35 Euros) that confirms that we are blood related and that I can come and visit my own blood family who I havent seen in more than 8 years! I also had to pay another 45 for my schengen visa! So that is 80 euros , 35 euros more than a normal tourist with no family ties in Europe!!

For my family to be granted this letter from their council they had to also sign and agree to a letter stating that they will be liable if anything happens to me like an emergency during my stay in the EU. Why would they be liable for any cost in an emergency if I already have travel insurance??? That made my family a bit apprehensive thinking they could be ending up liable for my hospital fees in case of an emergency during my weeks stay with them. (bear in mind a normal tourist only needs travel insurance for for a stay in the EU)

Not only did I showed my last 3 months of bank statements (which is normal when you apply for a schengen visa) my family also had to go to their bank to get their last 3 months bank statements. Why I don't know because they can see my last three months of bank statements is enough to look after myself with or without my family providing me with food or accomadation.



So much for the simplicity of the schengen visa. It seems like if you you want to visit your own blood family which you haven't seen in over 8 years you are punished. Obtaining a tourist visa is far easier, wait till you have family in the EU and you will see the schengen visa is a load of bol**ks more trying to keep families apart than anything else!!

[geoffsinclair]

But if you are someone for whom the whisper of your right is enough to get you into a fight-for-your-right mode...

Yawn

I will continue with a few examples of court cases etc so that courageous "naives" might find it useful will not be deterred in trying to enter the Schengen or any other EU countries without a visa in the presence of a valid Residence Card over

Yes encourage others to act as guinea pigs while you post bogus examples of people crossing into Schengen space without a visa. Keep it up guys, you wont get into trouble.

[Docterror]

But if you are someone for whom the whisper of your right is enough to get you into a fight-for-your-right mode...

Yawn

... had to come all the way online to yawn at that comment? Did it really bug you that much?

[geoffsinclair]

No I drove 10 kilometers all the way to the forum to warn people against accepting the advice and examples from people they dont know. The yawn was just a natural reaction to your post. Maybe I should go to the immigration officials in Paris without a visa and say, "but Monsieur, Docterror said it was ok?"

[Docterror]

The yawn was just a natural reaction to your post

Aaah! Yawn... a natural reaction... that developed almost a day after you read that post...Wonderful! (I know from all the PMs you send me that you did read it almost just after I posted it.) You are a quick one, aren't you?

"but Monsieur, Docterror said it was ok?"

You know... That actually might work. Alternatively, you can try substituting 'Docterror' with 'Directive2004/38' and it still might work as well.

But here is a thought. Instead of heading all the way to Paris to wax lyricals about me, why not try doing it from from Dover instead? That way, when worse comes to worst, you might get deported from Dover to ... well, Dover!

Should I be expecting more quick natural reactions in a couple of days time?