Switzerland joins Schengen

fysicus · Post by **fysicus** » Mon Mar 09, 2009 11:11 am

after my first enquiry with the Swiss ministry of Justice I sent them a second request; specifically referring to the Schengen Borders Code as well. The response was mainly a repeat of their earlier reply (see my earlier posts in this thread):

As mentioned in my E-Mail from the 22nd of January 2009 Switzerland is not member of the European Union and so the mentioned EU directive 2004/38 does not apply to Switzerland. Therefore the Visa exemption for a third state national is not valid for Switzerland either.
Furthermore, the UK is not part of the Schengen Agreement and with Switzerland joining the Schengen Area the policy towards third state members with resident permit in the UK has also changed. Persons who hold a resident permit for family members of EU nationals are required to obtain a visa.
Switzerland does apply the Schengen Border Code (mentioned in nr. 25). However the exemption mentioned under article 2 nr. 5 does refer to the EU directive 2004/38, which Switzerland does not apply.
Your wife will therefore need a visa in order to enter Switzerland. However, as you might have seen under FAQ (http://ch.vfsglobal.co.uk/faq.aspx) the visa is free of charge.

I forwarded my correspondence to a member of the European Parliament, hoping it will be passed on to somebody who can do something about it.

86ti · Post by **86ti** » Mon Mar 09, 2009 11:34 am

ca.funke wrote:Hi 86ti, does the cited law (whatever it is) mean, that 2004/38/EC is applicable in the EFTA-countries as well?

My understanding is that this is really just a decision. I cannot see there that any date is set until which the EFTA countries are supposed to implement this agreement. I only realise now that the EFTA also includes Switzerland. Interesting.

It appears that at least the UK and Austria do not seem to make a distinction between EU, EEA, and EU+EFTA, i.e. all nationals from these countries appear to be treated the same.

Post by **ca.funke** » Mon Mar 09, 2009 11:58 am

86ti wrote:I only realise now that the EFTA also includes Switzerland

Does it?

I don't want to contradict as I do not know. The more I read the less I understand:

http://www.efta.int/content/eea
http://en.wikipedia.org/wiki/European_F ... ssociation
http://en.wikipedia.org/wiki/European_Economic_Area

If (speculation

)

2004/38/EC takes effect in the EEA
and Switzerland is not a member of the EEA
but Liechtenstein is

then we have the funny/unbelievable/totally ridiculous situation that EU-family-members with 4EUFam can legally go to Liechtenstein (obviously they'd have to go via Austria), but not to Switzerland.

Aditionally ridiculous: The Liechtenstein/Austrian border was manned by Swiss customs before Schengen. Thus there may still be some checks by Swiss custom officials, who would have to know about this... What a mess

Can anyone say for sure what's going on here, and how all of this affects 2004/38/EC

86ti · Post by **86ti** » Mon Mar 09, 2009 12:11 pm

ca.funke wrote:
86ti wrote:I only realise now that the EFTA also includes Switzerland
Does it?

EFTA = Norway, Iceland, Switzerland and Liechtenstein
EEA = EU plus EFTA but not Switzerland

Post by **ca.funke** » Mon Mar 09, 2009 1:41 pm

ca.funke wrote:Should I get a reply on the below I'll post it here.

The answer from the Ministry of Foreign Affaris came swift: The responsible office is the "Federal Office for Migration", so I forwarded the same request to them...

...hoping to get a reply from either the "Office for Migration" or the embassy....

fysicus · Post by **fysicus** » Tue Mar 10, 2009 8:04 am

The Federal Office for Migration answered my emails in a reasonable time (within one, two weeks), although the answers were not very encouraging (I posted them earlier in this thread).
The embassy in London has not yet answered my email from 16 december (and probably never will).

Post by **ca.funke** » Tue Mar 10, 2009 8:59 am

fysicus wrote:The Federal Office for Migration answered my emails in a reasonable time (within one, two weeks), although the answers were not very encouraging (I posted them earlier in this thread).
The embassy in London has not yet answered my email from 16 december (and probably never will).

Sorry, fysicus, only now did I read every letter or your earlier posts, while also understanding them

Essentially we're both asking exactly the same?

Should I get a reply from them, I'll ask them what they think about the EEA/Liechtenstein idea I'm outlining above...

...all of this really doesn't make sense at all, just as with all the other cases concerning family-members.

Will keep this thread posted, and I'd be happy if anyone has insight into the EEA/EFTA story, and if my assumptions above are correct?

Plum70 · Post by **Plum70** » Tue Mar 10, 2009 11:43 am

ca.funke wrote:
86ti wrote: Aditionally ridiculous: The Liechtenstein/Austrian border was manned by Swiss customs before Schengen. Thus there may still be some checks by Swiss custom officials, who would have to know about this... What a mess

Mobile Swiss border patrol units still man the Liechtenstein border as it is now an external one to Switzerland (after its accession to Schengen land).

See: http://www.swissinfo.ch/eng/search/Resu ... id=9778511

I believe that non-EEA family members who may be able to enter Liechtenstein with their RCs or EUFam4s, will find that if crossing to Switzerland and stopped by Swiss border patrols, they would be expected to have a schengen visa for Switz.

Post by **ca.funke** » Tue Mar 10, 2009 1:03 pm

Plum70 wrote:Mobile Swiss border patrol units still man the Liechtenstein border as it is now an external one to Switzerland (after its accession to Schengen land).

See: http://www.swissinfo.ch/eng/search/Resu ... id=9778511

I believe that non-EEA family members who may be able to enter Liechtenstein with their RCs or EUFam4s, will find that if crossing to Switzerland and stopped by Swiss border patrols, they would be expected to have a schengen visa for Switz.

Haha, thanks for that hint Plum70, I thought Liechtenstein and Switzerland joined Schengen on the same day...

...that's (as many practical aspects of Schengen) -again- ridiculous

No-one can get to or leave from Liechtenstein without passing through Schengen. If they'd just "forget" Liechtenstein as far as checks are concerned, that'd be effectively the same.

In SanMarino and the Vatican it is currently handled like that (it's just not checked), while Monaco's external border (the maritime border to the Mediterranean) is monitored by France, in turn there are no checks at Monaco's (only and Schengen-) border to France.

Leaves the funny case of Andorra... UNREAL...

Richard66 · Post by **Richard66** » Tue Mar 10, 2009 3:49 pm

We went for half an hour to the Vatican, my wife and I, last Tuesday and we did not even have our passports!

fysicus · Post by **fysicus** » Tue Mar 10, 2009 6:00 pm

Even though the Vatican border is controlled by the Swiss Guard; that is really amusing!

Post by **ca.funke** » Wed Mar 11, 2009 10:46 am

fysicus wrote:Even though the Vatican border is controlled by the Swiss Guard; that is really amusing!

ca.funke wrote:Leaves the funny case of Andorra... UNREAL...

Thinking about these cases in more detail: Is there any sort of an official agreement between the Vatican and Schengen?

Otherwise (strictly speaking) all single-entry Schengen-tourists should not be allowed to leave the Vatican after visiting it...

While in the case of the Vatican this may be a theoretical question as there are no border-checkpoints, how is this handled for Andorra?

Border-checks are in place here, and single-entry Schengen visas would be void after going there.

Would people stuck in Andorra seriously have to apply for a new Schengen-Visa inside Andorra? And what if it is refused???

Richard66 · Post by **Richard66** » Wed Mar 11, 2009 11:13 am

These countries mormally do have arrangements with their neighbours. You cannot even arrive or leave Andorra if not though Spain or France.

The same applies to San Marino.

I have travelled though Swizerland many times and have actually been there twice, Before it became Schengen. I was checked by German police on my way back. What would have happened if I had forgotten my passport at home, in this case, in Germany?

86ti · Post by **86ti** » Wed Mar 11, 2009 11:14 am

ca.funke wrote:Border-checks are in place here, and single-entry Schengen visas would be void after going there.

Would people stuck in Andorra seriously have to apply for a new Schengen-Visa inside Andorra? And what if it is refused???

If there are border checks then single entry visa holders shouldn't be allowed in in the first place.

Post by **ca.funke** » Wed Mar 11, 2009 11:31 am

86ti wrote:If there are border checks then single entry visa holders shouldn't be allowed in in the first place.

Agreed, but you know how it goes in practice... The person travelling is unaware, the borderguards are sleeping...

...then a person, whose only option to get home is to go through Schengen, has to apply for a Schengen visa.

All I'm saying is that this situation is -again- totally senseless and ridiculous...

Post by **ca.funke** » Thu Mar 12, 2009 12:20 pm

ca.funke wrote:If (speculation )...

Hi all,

it's not a speculation anymore, 4EUFam DOES allow entry into the EU/EEA area, but NOT as-it into Schengen.

The fact that you CAN enter Schengen simply comes from the fact that Schengen and EU/EEA are in most cases overlapping, however legally you enter the EU/EEA, not Schengen.

As a consequence, with 4EUFam (and the British equivalent), you can and may roam Schengen as you please, but you may NOT enter Switzerland.

I had an interesting exchange of emails, apparently they consider (re-)accepting Irish/British "Familymember of EU/EEA citizens" cards again, however at present they are NOT accepted.

Therefore, do NOT enter Switzerland !! Althought there are no border-checks anymore it would be illegal to do so

Rgds, Christian

86ti · Post by **86ti** » Thu Mar 12, 2009 1:22 pm

ca.funke wrote:As a consequence, with 4EUFam (and the British equivalent), you can and may roam Schengen as you please, but you may NOT enter Switzerland.

I suppose you wanted to say: you can roam the whole of the EEA (which "just so" happens to overlap with most of the Schengen area) but not Switzerland because it is not EEA. Actually, Schengen appears to be totally irrelevant for family members with EEA residence permits anyway. The Schengen border code for instance just refers to the Directive in this case.

EDIT: this means that a EEA residence permits does not substitute for a Schengen visa but rather for an imaginary EEA visa. Also the 3 months per half year a la Schengen do not apply. Just three months. One day outside and you can start over again but still less than 6 month per year because otherwise you would be considered resident and would need an appropriate permit. I have been told (Austrian forum!) that this is would be due to historical reason

Post by **ca.funke** » Thu Mar 12, 2009 4:11 pm

86ti wrote:I suppose you wanted to say: you can roam the whole of the EEA (which "just so" happens to overlap with most of the Schengen area) but not Switzerland because it is not EEA.

Yep - that's what I wanted to say - I was busy with that crap for quite a while today, so sorry for my lapse...

With 4EUFam you may (and in many cases can) indeed enter all of the EEA. De-facto you can also enter the Vatican, SanMarino and Monaco, although I'm not sure about the legal situation in these cases?

NB: EEA includes Liechtenstein (which is currently not Schengen), so you can (legally) get damn close to Switzerland from every side, you just have to stop yourself from crossing the line...

This is one of the Swiss/FL crossings, actually a place where my wife and me crossed ourselves once. (The pic is not from me. It was taken from FL towards CH. The motorbike is already in non-EEA-Swiss territory and as such off limits for 4EUFam, while the foto could be taken legally with 4EUFam.)

As you can see the crossing is heavily guarded and fortified...

Maybe 4EUFam-folks should plan their next holidays is FL: Should your partner annoy you, just go to the next pub towards the south, and finished...

...I really think this isn't funny, actually.

Post by **ca.funke** » Wed Mar 18, 2009 10:30 am

I hope I'm not writing a summary of what everybody is aware of already - just drawing some conclusions while waiting/hoping for a meaningful answer from the Swiss / the EU.

(Of course that'll take 4ever...)

In the meantime:

EU/EEA family-member-residence-permits legally allow entry into all of the EU/EEA through 2004/38/EC
- conditions like travelling together are not the point now...
This includes the UK/Eire, who both choose to illegally ignore/misinterpret these rules
Switzerland (CH), not being EU nor EEA, is not bound by 2004/38/EC
- Hence CH MAY and currently DOES NOT accept UK/Eire residence permits for entry
- Which makes sense, as corresponding CH-permits are not valid in UK/Eire
- But does not make sense, as a group of people may now enter all of Schengen - except CH, which is odd
The most logical solution would be:
- UK/Eire acknowledge their legal obligations from 2004/38/EC AND
- enter a bilateral agreement with CH, mutually accepting their family-member permits for short-term visits OR
- fully enter Schengen, for all I care with the exceptional right to systematically check papers on entry
Either of this would yield a logically comprehensive situation
- which in itself is a guarantee that it won't happen

86ti · Post by **86ti** » Wed Mar 18, 2009 10:42 am

ca.funke wrote:
Hence CH MAY and currently DOES NOT accept UK/Eire residence permits for entry
Which makes sense, as corresponding CH-permits are not valid in UK/Eire

The Swiss didn't have a problem with that before they joined Schengen and acceptance would not seem to cause any incompatibilities.

ca.funke wrote:
But does not make sense, as a group of people may now enter all of Schengen - except CH, which is odd

Obviously a member state can choose to restrict its own territory from a Schengen visa. I don't know on which grounds that is possible but we have some reports here that recently issued Schengen type C visas from France (which also appears to reject UK/Eire residence permits) excluded Estonia.

Post by **ca.funke** » Wed Mar 18, 2009 10:58 am

86ti wrote:...France (which also appears to reject UK/Eire residence permits)...

That would be illegal, however my wife and me successfully entered France with 4EUFam on a ferry from Rosslare to Cherbourg. No questions, no nothing, just "bon voyage"...

86ti wrote:...but we have some reports here that recently issued Schengen type C visas from France (...) excluded Estonia...

WOW! I looked around for a while, can't find it. Can you point me to that??

86ti · Post by **86ti** » Wed Mar 18, 2009 11:21 am

ca.funke wrote:
86ti wrote:...but we have some reports here that recently issued Schengen type C visas from France (...) excluded Estonia...
WOW! I looked around for a while, can't find it. Can you point me to that??

http://www.immigrationboards.com/viewtopic.php?t=35785

Post by **ca.funke** » Wed Mar 18, 2009 12:33 pm

Hi all,

I just read the complete thread (again), and happened to see the following in the Decision of the EEA Joint Committee

(...) the EEA Joint Committee (...) HAS DECIDED AS FOLLOWS:

Article 1

(...)Directive 2004/38/EC (...) shall, for the purposes of the Agreement, be read with the following adaptations:
(...)
(c) The words "Union citizen(s)" shall be replaced by the words "national(s) of EC Member States and EFTA States".
(...)

As EFTA includes Switzerland, does that mean that Irish/British family-member cards are actually valid in CH, and no-one happens to know??

If so I wonder why the EEA Committee may decide something for the EFTA (which includes CH), if CH is not represented in the EEA?

Or (more likely) do I have some logical twist here?

86ti · Post by **86ti** » Wed Mar 18, 2009 12:55 pm

The EEA Joint Commitee appears to include all EEA and all EFTA states. Their recent annual report mentions the Directive 2004/38/EC in point 53.

flyboy · Post by **flyboy** » Wed Mar 18, 2009 10:50 pm

ca.funke wrote:Hi all,

I just read the complete thread (again), and happened to see the following in the Decision of the EEA Joint Committee

(...) the EEA Joint Committee (...) HAS DECIDED AS FOLLOWS:

Article 1

(...)Directive 2004/38/EC (...) shall, for the purposes of the Agreement, be read with the following adaptations:
(...)
(c) The words "Union citizen(s)" shall be replaced by the words "national(s) of EC Member States and EFTA States".
(...)
As EFTA includes Switzerland, does that mean that Irish/British family-member cards are actually valid in CH, and no-one happens to know??

If so I wonder why the EEA Committee may decide something for the EFTA (which includes CH), if CH is not represented in the EEA?

Or (more likely) do I have some logical twist here?

This is the EEA committee, which does not include CH, and when mentioning it applies to nationals of EC member states and EFTA states , logically it would mean the EFTA members belonging to the EEA. For directive 2004/38 to be applicable in CH, the free movement agreement between EU and CH will have to be modified. And considering some of the provisions provided in the directive some of the anti EU / foreigner parties in CH will most probably collect enough signatures to force a referendum on the issue before it can take effect in CH.

From the updated version of the schengen borders code, you'll see that family members of CH nationals does not benefit from the directive 2004/38 even if they hold valid residence permits/cards issued by an EU/EEA state and that family members of EU/EEA nationals holding a valid CH permit will need a visa to visit those EU countries which are not part of schengen.

The first link is the original schengen border code handbook and take a look at point 3.1 and then have a look at the 2nd link the updated version and see how it has been updated taking into consideration that the directive does not apply to CH.

http://register.consilium.europa.eu/pdf ... 0.en06.pdf

http://register.consilium.europa.eu/pdf ... 3.en08.pdf

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Switzerland joins Schengen