Stuck in Spain

[Richard66]

Just a little aside, Prawo, Which Ombudsman? The Spanish or the British one? The one of the country one lives in or of the one where the outrage occurs?

[Prawo]

Just a little aside, Prawo, Which Ombudsman? The Spanish or the British one? The one of the country one lives in or of the one where the outrage occurs?

Take both.

The British one for apparently not issuing the proper card according to art. 10.

The Spanish one for the behaviour of the Spanish border control, not honoring the UK stamp (which you say is the proper document according to art. 10) and/or not acting according to the MRAX/BRAX ruling.

[johnsienk]

<original post deleted>

[Directive/2004/38/EC]

Unfortunately the wife does not have a Residence Card. She has an EEA Family Permit, which is an UK issued entry visa for family of EU citizens.

See my answer to Tobbe above.

Does the UK have such cards at all?
I only know of stamps in passports, with the proper mention of the person being a family member of an EEA citizen. This stamp is honoured by the Dutch immigration (after I taught them a lesson).

The UK does issue Residence Cards as referred to in Directive 2004/38/EC. The wife does not (yet) have one of these. She only has the visa for initial entry to the UK on the basis of being the wife of an EU citizen.

Prawo, the issue with Residence Cards in the UK is simple. The UK creatively interprets the Directive as saying that somebody who has a UK issued Residence Card does not get the passport stamped on entry and does not need a visa. A Residence Card issued by other member states is not considered by the UK transposition. Ireland does the same trick.

The UK may be able to get away with this because the Directive is not explicit about saying that a member state must recognize a Residence Card issued by any other member state. Do you know if there is any case law which would speak against this?

[Prawo]

Sorry guys, but I am afraid the only way forward might be to take the case to the European Court of Justice ...

You cannot go to the court as an individual.

Only national courts can ask the court questions or the European Commission can take a member state to the court for not implementing and applying EU law correctly.

These are all very long ways.

National Ombudsman institutions (if the exist) usually work much faster and effective. Though the requirement might be you first address the proper administrative organ with your complaint (which is the case in The Netherlands).

[johnsienk]

<original post deleted>

[Prawo]

>>You cannot go to the court as an individual.

At any rate, it clearly states on the website: "The Court has the power to settle legal disputes between EU member states, EU institutions, businesses and individuals."

This does not exclude what I inform you about.

Better believe me.

[johnsienk]

<original post deleted>

[Tobbe]

We have both been living for quite some years in the UK and we also met the first time here. The stamp she has is not the one for travelling to UK with a European husband; it’s the one you get from the EEA2 application (which specifically says it is for a residence card). http://www.ind.homeoffice.gov.uk/6353/11406/eea2.pdf

Therefore I was 99.9999% sure it was a valid residence card according to 2004/38/EC but it’s not according to HO. It is not honoured by Spain either. I went down to the Spanish consulate in London and asked as well (and handed in a written complaint about their behaviour) they says that Spain does not recognise the UK card as a residence card valid in Europe.
I guess that all of this is done only because UK/Ireland doesn’t want to be a full Schengen member, so a political issue far above over heads. So I think we will keep to the Mrax/Brax ruling when we go to the Spanish court, doesn’t seem to be any point in pointing out that we have the UK residence card.

Does anyone have any experience about Spanish court cases? Apparently we have only one month to appeal the deportation and the court doesn’t always answer appeals (which sounds a bit strange).The lawyer tolds us that she doesn't want us to tell her how to do her work when we sent her the information we gathered here but rather wait until mid December and call to see if we had an answer from the court. Is that normal practice or should we go and find a new one? Would for example be nice to see exactly what is sent to the court and so on.

[Dawie]

Does anyone have any experience about Spanish court cases?

Only that Spain's justice system is positively third-world compared to the UK's. If you're expecting a fast resolution you will be sorely disappointed.

[Directive/2004/38/EC]

We have both been living for quite some years in the UK and we also met the first time here. The stamp she has is not the one for travelling to UK with a European husband; it’s the one you get from the EEA2 application (which specifically says it is for a residence card). http://www.ind.homeoffice.gov.uk/6353/11406/eea2.pdf

So it sounds like your wife has applied for and recieved a Residence Card using form EEA2. You had initially said she was travelling on an EEA family permit, which is an initial entry visa for the UK and is definitely NOT a Residence Card.

Therefore I was 99.9999% sure it was a valid residence card according to 2004/38/EC but it’s not according to HO. It is not honoured by Spain either.

What exactly has the Home Office told you that makes you think that your UK issued thing is not a Residence Card as referred to in Directive 2004/38/EC?

[Tobbe]

Sorry I'm just not used to which word to use for which thing, here is what HO told me.

"Dear Sir,

Thank you for your enquiry.

If your Wife has been issued stamp in her passport upon her application
EEA2. She has been issued With\ UK Resident Card to remain in the UK
inline with you to work live and exercise her treaty rights as a family
member of EU national.

Please be advised that her Resident card is only valid for UK to remain
and or enter. If she wises to travel to any other EU countries. She will
need to contact country's Embassy to obtain visa for that country.

UK visa stamps including Resident Permits images are available on the
Home Office website under Prevent Illegal Working link.

Please click on the link below that will take you to the Home Office
website.

http://www.bia.homeoffice.gov.uk/lawand ... lworking/y
ourdefence"


I have also got an answer from the Signpost service saying that Spain does not need to issue a Visa at the border control. We should have had it from the beginning. They pointed me to http://ec.europa.eu/justice_home/fsj/fr ... try_en.htm where it says "This visa should be granted free of charge and without undue formalities by the competent consulate authorities.". Clearly I should have sorted out a visa at the consulate here in London then.

[Tobbe]

Oh and my question to HO was:
Hi

My name is X and I have a question regarding the stamp put
into my wife's passport following an EEA2 application. I want to know if
this stamp is what the directive 2004/38/EC article 10 describes as a
residence card?

[Prawo]

Do complain to the European Commission about their incompetent signpost service.

I'm doing the same.

[Dawie]

Haha, it's ridiculous, isn't it? You have to complain about the people who are meant to deal with complaints. Eventually we will have to complain about the people who are meant to deal with complaints about the people who are meant to deal with complaints.

You've got to love Brussels!

[Richard66]

The UK will not recognise anyone else's Residence cards, so no one will recognise the UK's. Tit for tat.

I must say, the Signpost service gave me the right answer when I asked them, but for the wrong reasons.

As for article 10... It's obvious it refers to the residence card issued by ANY member state. If it weren't, the Directive would be infringing on the rights Member States to legislate for internal matters, as residence cards for internal use are regulated by national law. I have the letter from the Office of Frattini to prove my point and the UK is (or will soon be) be dragged in front of the European Court of Justice.

[Prawo]

Haha, it's ridiculous, isn't it? You have to complain about the people who are meant to deal with complaints. Eventually we will have to complain about the people who are meant to deal with complaints about the people who are meant to deal with complaints.

You've got to love Brussels!

Sign Post doesn't deal with complaints.

They give independent (mule they put it) advise. Worth nothing in this case.

[Directive/2004/38/EC]

As for article 10... It's obvious it refers to the residence card issued by ANY member state. If it weren't, the Directive would be infringing on the rights Member States to legislate for internal matters, as residence cards for internal use are regulated by national law. I have the letter from the Office of Frattini to prove my point and the UK is (or will soon be) be dragged in front of the European Court of Justice.

Much as I would like to agree with you that it is obvious, I think it is not clearly written in the directive and so has left wiggle room.

[Tobbe]

I found that in the Schengen handbook it says that anyone holding a residence card or permit issued by Schengen country, EEA or CH should be let in and are exempt from visas. So even if UK doesn’t give us proper 2004/38/EC ones it should have been honoured. Should keep in mind it is just a handbook and not a law though but clearly the people who wrote the handbook thought the law worked the same way as I did.

“3.1.1 Persons enjoying the Community right of free movement are authorised to cross the border
of a Member State on the basis of the following documents, as a general rule:
– EU, EEA, CH citizens: identity card or passport;
– members of the family of EU, EEA, CH citizens who are nationals of a third country:
passport. They may also be required to have an entry visa, if they are nationals of a third
country subject to the visa obligation, unless they are in possession of a valid residence
permit or card, issued by a Member State (or by EEA countries or CH).â€

[Tobbe]

We haven’t given up just yet so I thought it might be time for an update.

The Spanish Solvit has accepted to take on our case and they have given Spain until the end of December to sort their sh*t out. Hopefully they will get somewhere since we no longer get any response from the lawyer given to us by the Spanish immigration (we did have a sneaky suspicion that she wouldn’t do anything anyway) and the time limit for appeals (1 month) has expired now. We tried to get my wife’s cousins lawyer to give us some advice on the issue as well but after 3 letters vanished in the magical royal postal system we didn’t manage to get the details across fast enough.

The Signpost service got back to me again and apologised for referring to an old web page and said it was pretty obvious that Spain were in breach of the EU directives.

I have also spoken to the Swedish “immigrationsverketâ€

[Tobbe]

Update time


Lawyer claims she has appealed the deportation but can’t tell when it will be heard, can’t even tell which court… So my initial feeling that she wasn’t interested at all seems to be true.

I have tried through solvit to get the Spanish authorities to sort out the situation but they have gone down the “if we lie long enough they will eventually get tired and go awayâ€

[Directive/2004/38/EC]

Maybe it is time to talk to another lawyer?

[gschwarz]

I guess that the next move will be a petition to the European commission but I have no idea how to write one, is there anywhere were you can read other peoples petitions an not only the answers to them?

It´s great that you keep insisting in resolving this. I think your best course of action may be to lodge a petition with the European Parliament. They have a convenient online form, and will follow up with the Commission and in turn with the Spanish authorities. You certainly have a strong case. The link to submit a petition to parliament can be found here.

[dsanchez]

so the wife and I thought it would be nice to go to Spain for a week. I'm Swedish and she is Bolivian

That's the problem Tobbe. She is bolivian. Southamericans are not welcome in Spain, specially if they're from Peru, Ecuador, Colombia, Bolivia..

I am peruvian and trust me, Spain would be the last country in Europe I would visit. They will make always any kind of trouble.

[Tobbe]

Thank you for your replies

Maybe it is time to talk to another lawyer?

You only have one month to launch an appeal so it’s not really an option to get a new lawyer. Well except for suing the first lawyer for not carrying out her duties but that would get us nowhere closer to sort out the passport and SIS records

GSchwarz, thank you for the link. I think I will go for the free form ranting by post option Just need to get all evidence together so the Spaniards doesn’t try the “they have never been to Spainâ€