Reply from Spanish Consulate regarding la Directiva 2004/38

[yulia]

Hi all,

i send a query to the Citizen Signpost service regarding taking an advantage of the directive 2004/38.

I received a reply from spanish consulsate as I am planning to travel to Spain. Funny enough.... reply was send in Spanish which does not really help as I do not speak spanish.

If anyone can help to make sense of this will be really grateful.

i copied my original query as well:

Enquiry
44313: Dear Sirs,

I am Russian National married to British Citizen and currently holding Indefinite Leave to remain in The UK.

My husband and I are planning to travel to Spain and I was wondering whether I can take an advantage of Directive 2004/38/EC and travel without specifically obtained Shengen Visa.

If I can take an advantage of this directive and what documents I need to provide at the immigration control at Mahon (this is my destination) in order to avoid any problems.

Many thanks for your help.

Kind regards,

Yulia


Reply
Como norma general, en tanto que miembro de la familia de un ciudadano UE, para viajar por cualquier Estado Miembro de la UE y del espacio Schengen le basta con su pasaporte en vigor y su permiso de residencia.
Efectivamente, como esposa y por tanto, familiar de un ciudadano UE, la Directiva 2004/38 se aplica a su caso.

Con arreglo al acervo de Schengen, un visado puede ser sustituido por un permiso de residencia en vigor expedido por un Estado miembro de Schengen y acompañado de un documento de viaje. Es decir, el ciudadano de un tercer país que presente su pasaporte acompañado de un permiso de residencia en vigor expedido por un Estado miembro de Schengen (como es el caso de su permiso de residencia en el R.U) tiene derecho a entrar, sin necesidad de visado, en cualquier otro Estado miembro de Schengen.

En cualquier caso si desea más información puede contactar con el Consulado Español en Londres. También puede visitar el sitio web de la Comisión Europea www.ec.europa.eu/youreurope donde encontrará todo lo relativo a sus derechos como miembro de la familia de un ciudadano UE cuando se desplaza a otro Estado Miembro.

Consulado Español en Londres
20 Draycott Place
London SW3 2RZ
Tel: + 44 (0)20 7589 8989
Fax: + 44 (0)20 7581 7888
E-Mail: conspalon@mail.mae.es


The advice given by the Signpost Service legal experts is independent advice and shall not be considered to be the opinion of the European Commission. As such it will not in anyway bind the Commission.

[Richard66]

Dear Yulia,

It says two things, believe it or not!

It says that as a family member of an EU citizen you can benefit from visa-free travel to any EU or Schengen country, thus taking advantage of the directive, provided you produce your passport and your residence card.

Under it says that a residence card issued by a Schengen country is valid as a short-term visa for visits to other Schengen countries (as is the case of the UK)

If the Citizen's Signpost Service believes the UK is a member of the Schengen agreement we are really in trouble, because the UK and Ireland are two countries that are definitively NOT members!

What they mean is that with the UK residence card you need to travel with your husband. If you had a Schengen residence card you could travel to any other Schengen country with or without husband.

In any case your UK residence card, together with your passport and your marriage certificate (and accompanying husband!) should do the trick. Take, however, the Directive with you when you travel (in Spanish too) in case of trouble.

[Dawie]

Dear Yulia,

It says two things, believe it or not!

It says that as a family member of an EU citizen you can benefit from visa-free travel to any EU or Schengen country, thus taking advantage of the directive, provided you produce your passport and your residence card.

Under it says that a residence card issued by a Schengen country is valid as a short-term visa for visits to other Schengen countries (as is the case of the UK)

If the Citizen's Signpost Service believes the UK is a member of the Schengen agreement we are really in trouble, because the UK and Ireland are two countries that are definitively NOT members!

What they mean is that with the UK residence card you need to travel with your husband. If you had a Schengen residence card you could travel to any other Schengen country with or without husband.

In any case your UK residence card, together with your passport and your marriage certificate (and accompanying husband!) should do the trick. Take, however, the Directive with you when you travel (in Spanish too) in case of trouble.

The problem is that the UK does not issue residence cards to spouses of British citizens.

[Christophe]

The problem is that the UK does not issue residence cards to spouses of British citizens.

The UK doesn't really issue residence cards as such to anyone. (This tripped up a friend of mine who was marrying a Belgian woman in Belgium: the penpushers at the local town hall couldn't comprehend that he had no resident card as proof of address in the UK - his British passport of course provided no such proof. And they weren't impressed with the sort of proof that is used in the UK - driving licence, gas bill, etc, etc.)

Anyway, I digress. Would the UK resident's passport endorsement itself be the only likely alternative, and a suitable one for this purpose?

[Dawie]

The problem is that the UK does not issue residence cards to spouses of British citizens.

The UK doesn't really issue residence cards as such to anyone. (This tripped up a friend of mine who was marrying a Belgian woman in Belgium: the penpushers at the local town hall couldn't comprehend that he had no resident card as proof of address in the UK - his British passport of course provided no such proof. And they weren't impressed with the sort of proof that is used in the UK - driving licence, gas bill, etc, etc.)

Anyway, I digress. Would the UK resident's passport endorsement itself be the only likely alternative, and a suitable one for this purpose?

They do issue residence cards to EU citizens and their spouses!

http://www.employingmigrantworkers.org. ... idence.jpg

[Prawo]

I do not think you can benefit from visa free travel.
This only applies to spouses of EU citizens, residing outside there country of origin (but in the EU).

You would have to apply for a free visa.

If you travel without a visa to join your husband (or travel with him) they have to give you a 2 week visa at the border. This on the basis of the Brax/Mrax ruling of the European Court.

[Christophe]

They do issue residence cards to EU citizens and their spouses!

Yes, you're quite right! My apologies for the oversight.

[Richard66]

Prawo, the Directive covers people travelling to another EU country. It says nowhere that this EU citizen must be living in a third EU country to be able to travel to another EU state. It would be caos if, for example, only Germans living in Spain and travelling to Sweden could benefit from this.

[Dawie]

Prawo, the Directive covers people travelling to another EU country. It says nowhere that this EU citizen must be living in a third EU country to be able to travel to another EU state. It would be caos if, for example, only Germans living in Spain and travelling to Sweden could benefit from this.

Prawo is talking about non-EU citizens, not EU citizens.

[Docterror]

They do issue residence cards to EU citizens and their spouses!

Yes, you're quite right! My apologies for the oversight.

The reason most people get confused with the terms are because while all other EU countries supplies the non-EEA national with the Residence Card in the form of a card itself, the UK endorses a vignette that looks exactly like the format laid down for such purposes into the passport of the non-EEA national, thus making it look more like a visa rather than a card.

The EEA nationals on the otehr hand are issued free-standing card/certificate seen the link above by Dawie.

[Docterror]

Prawo, the Directive covers people travelling to another EU country. It says nowhere that this EU citizen must be living in a third EU country to be able to travel to another EU state. It would be caos if, for example, only Germans living in Spain and travelling to Sweden could benefit from this.

The EU citizen need not be living in the 3rd EU country to avail the right of free movement for the non-EU family member. But, the Residence Card that is supposed to be the document that grants such a right is issued only to non-EU nationals residing with the EU national in another EU country and the whole part if covered by paragraph (2) of Article 5 of the Directive.

But if the non-EEA family member do end up in a Port of Entry in a Member State with the EEA national, they are let in not using the same rules, but rather under paragraph (4) of the same article.

So, in a nutshell, you are right because of the rules made for exceptional cases and had it not been there, without a Residence Card issued according to the EU Regulations or a prior visa, the non-EEA family member would be send back.

[Docterror]

They do issue residence cards to EU citizens and their spouses!

Yes, you're quite right! My apologies for the oversight.

The reason most people get confused with the terms are because while all other EU countries supplies the non-EEA national with the Residence Card in the form of a card itself, the UK endorses a vignette that looks exactly like the format laid down for such purposes(COM/2003/558) into the passport of the non-EEA national, thus making it look more like a visa rather than a card.

The EEA nationals on the otehr hand are issued free-standing card/certificate seen the link above by Dawie.

[Edit:How did this get posted twice?]

[Prawo]

Prawo, the Directive covers people travelling to another EU country. It says nowhere that this EU citizen must be living in a third EU country to be able to travel to another EU state.

You are right.
But you should distinguish between visa free travel and travel with a free visa.

Both is possible for family members of an EU national.
However, visa free travel is only possible on the basis of an EU residence card issued by a member state other than the one of the EU national (though here are also exceptions, see the Carpenter case. Mrs carpenter should be issued by the UK authorities the EU card, in spite of her living with a UK citizen in the UK).

The free visa can be issued anywhere in the world, so also to those living outside the EU.

Should you manage to arrive without this visa (normally they will not let you board the plane) you have to be let in according to the Brax/Mrax rule. This is now standing practice at Amsterdam Schiphol airport. So you are warmly invited to come over
In Belgium you will have to go to court to be able to manage to get in (while detained at the airport). From France you will be send back in such a case.

[Richard66]

Let's see how the poor family member stands:

German living in Spain married to Russsian going to the UK does not need visa

German living in Germany married to Russian going to the UK needs free visa

UK living in Germany married to Russian going to the UK to settle does not need visa

UK living in Germany married to Russian going to the UK to visit needs visitor visa (please pay)

UK living in the UK married to Russian needs spouse visa (please pay more!)

UK living in UK married to Russian going to Switzerland needs no visa

Am I alone in being confused? You need a PhD to understand this confusion.

Blessed are the Italians that have come up with the equation:

Italian = EEA

[Prawo]

UK living in Germany married to Russian going to the UK to visit needs visitor visa (please pay)

I do not agree with this one.
There is no visa requirement here.
Or how would you distinguish upon entry the UK citizen departing from Germany to settle in the UK for a long stay from the one that makes a trip for a short stay?

Keep in mind that in all the cases you mention the visa free travel, there is the requirement the member state they live in issue the EU permit permit card as foreseen in art. 10 of Directive 2004/38/EC.
This simplifies things, as either someone has such a card (and does not need a visa) or doesn't (and has to get one, though free of charge).

Problem is most immigration authorities at the border do not know of any visa free travel, independent of which card is put under their noses.

[Docterror]

I do not agree with this one.
There is no visa requirement here.

Sorry Prawo, I do not agree with that. The UK does not differentiate between long and short stay. All are required to get the EEAFP regardless if the non-EEA family member is a visa national. Also, you will have a tougher time proving to the border control that the Surinder Singh route is being used and not the Immigration rules. Under the immigration rules the Russion can be send back.

UK living in Germany married to Russian going to the UK to visit needs visitor visa (please pay)

Again, this depends on how long the UK has been living in Germany (or any other EEA Member State). If you can prove that the British National has been employed or exercising treaty rights in Germany for more than 6 months, they apply for the EEA Family Permit free of charge as the EEA route kicks in. If not, they will need the Visit Visa as you have figured out. Either way a "visa" is needed.

It is only confusing in the beginning. After some time, it still will be confusing, but wouldn't be bothered as much.

If Italians see Italians in Italy under EU laws, then there is something really twisted with their interpretation.

[Richard66]

UK living in Germany married to Russian going to the UK to visit needs visitor visa (please pay)

Aha, Prawo! This is just what the British Solvit and the British Embassy in Rome, supported by UK visas, has told me! They told me that if I, the UK citizen living in Italy married to a Russian going to the UK on a visit, must apply for a visitor's visa on behalf of my wife. Here's what they say:

Directive 2004/38/EC provides rights for EU nationals to travel to other Member States and enables their non-EU family members to travel with them. Article 5.2 of the Directive provides that a visa shall be issued to a non-EU family member free of charge and on the basis of an accelerated procedure.

However, EC immigration legislation is designed to ensure that an EU citizen can travel to another Member State and not encounter discrimination on the basis of his being a non national of that Member State, it does not extend to citizens travelling back to their home Member State. In an attempt to address this point, the Surinder Singh Judgement in the European Courts established that a UK citizen, for example, if travelling back to the UK, was entitled not to considered a UK citizen but an EU citizen - and so eligible under EC legislation - but only if the citizen was returning to the UK to work, to be employed or self- employed. The Surinder Singh Judgement did not extend to nationals of a Member State who are returning temporarily, for example on holiday. And if the citizen is not entitled to be considered under the Directive, then nor would the non-EU family member.

The Citizen's Signpost Service gave me another answer to the same question:

Thank you for your inquiry.

Under Directive 2004/38, as the spouse of an EU citizen your wife has the right to enter and reside up to 3 months in any EU country without having to fulfil any conditions.

As a family member of an EU citizen’s family, your wife has a right to travel with you. Article 5(2) of the EU Directive on residence rights of EU citizens states that “Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.â€

[Docterror]

Keep in mind that in all the cases you mention the visa free travel, there is the requirement the member state they live in issue the EU permit permit card as foreseen in art. 10 of Directive 2004/38/EC.

Again, sorry, but in the case of Switzerland allowing visa free travel, it is due to the national laws of Switzerland and a Residence Card under Article 10 will not be issued and is not required.

[Richard66]

Again, this depends on how long the UK has been living in Germany (or any other EEA Member State). If you can prove that the British National has been employed or exercising treaty rights in Germany for more than 6 months, they apply for the EEA Family Permit free of charge as the EEA route kicks in. If not, they will need the Visit Visa as you have figured out. Either way a "visa" is needed.

Again in my case to prove this is easy: I have an Italian Residence Card issued in December 2006 (before the Italians made away with the need for this card) and in my wife's Residence Card my name appears as being the husband. And what's more, on my multilingual marriage certificate it states we married in Italy.

[Docterror]

Again in my case to prove this is easy: I have an Italian Residence Card issued in December 2006 (before the Italians made away with the need for this card) and in my wife's Residence Card my name appears as being the husband. And what's more, on my multilingual marriage certificate it states we married in Italy.

If your wife has an Italian Residence Card, then she should not need a visa as mentioned by Prawo, and this is not debated upon. My statement you qouted above is strictly for family members one who does not hold a Residence Card. If your wife does hold a Residence Card, take the Marriage Certificate, hopefully translated in English, along with the copy of section 5 of this pdf to beat the head of the IO with.

[Docterror]

Now, who is right?

Actually, they are both right.

In the case a person does not hold a Residence Card, unlike your wife, if you want to use the Surinder Singh route you should be returning back to settle in the UK. So, if you tell the ECO that you are only visiting the UK, then you will have to get the visit visa. This does not apply to you, but is the generic answer to be given.

In your case the Citizen's Signpost Service is more fitting. Happy arguing at the PoE and best of luck.

[Richard66]

The multilingual marriage certificate is also in English, so that problem is solved too.

Or is it?

I can't make head or tail of all this: are you saying that if at the port of entry I tell the truth and say we're just visiting the UK they'll send my wife back but if I tell a lie and say we're going to settle in the UK they'll let us in? This is madnees.

What about when we leave and try to enter another time? Same story?

Or are you telling me that if we produce the marriage certificate and our residence cards and our passports we won't need to say anything and they'll let us through?

Why can't the UK do the sensible thing and join Schengen?

[Docterror]

Or are you telling me that if we produce the marriage certificate and our residence cards and our passports we won't need to say anything and they'll let us through?

They should, but not that easily. But, this is what you should be doing.

Getting to the hypothetical situation for others,

are you saying that if at the port of entry I tell the truth and say we're just visiting the UK they'll send my wife back but if I tell a lie and say we're going to settle in the UK they'll let us in? This is madnees.

I can't tell you to lie, but if that is what you understand, keep up the good work. Also it has to be done at the ECO at the British Embassy where you are applying from for the EEAFP. Have to agree that it is "madnees" though.

What about when we leave and try to enter another time? Same story?

Yeah! You came to settle, changed your mind and went back and you are returning again. The important question in such a case is- How good are you at poker?

[Prawo]

UK living in Germany married to Russian going to the UK to visit needs visitor visa (please pay)

Aha, Prawo! This is just what the British Solvit and the British Embassy in Rome, supported by UK visas, has told me!

The quote above is not what I said, but what I commented on.

They told me that if I, the UK citizen living in Italy married to a Russian going to the UK on a visit, must apply for a visitor's visa on behalf of my wife.

That is NOT what they said.
Read carefully the parts in the second paragraph I made in bold.

Here's what they say:

Directive 2004/38/EC provides rights for EU nationals to travel to other Member States and enables their non-EU family members to travel with them. Article 5.2 of the Directive provides that a visa shall be issuedto a non-EU family member free of charge and on the basis of an accelerated procedure.

However, EC immigration legislation is designed to ensure that an EU citizen can travel to another Member State and not encounter discrimination on the basis of his being a non national of that Member State, it does not extend to citizens travelling back to their home Member State. In an attempt to address this point, the Surinder Singh Judgement in the European Courts established that a UK citizen, for example, if travelling back to the UK, was entitled not to [be] considered a UK citizen but an EU citizen - and so eligible under EC legislation - but only if the citizen was returning to the UK to work, to be employed or self- employed. The Surinder Singh Judgement did not extend to nationals of a Member State who are returning temporarily, for example on holiday. And if the citizen is not entitled to be considered under the Directive, then nor would the non-EU family member.

What they say is the UK citizen concerned (and his family members)cannot benefit from EU rights if he was merely receiving services in another member state.
But that is not the issue in this topic, as a permit according to art. 10 of Directive 2004/38/EC has been issued by the Italian authorities. A permit that normally should be valid for 5 years.

Not only Surinder Singh is important here, but also Akrich.
Very important will be the Courts decision in then pending Eind vs The Netherlands case, a decision to be expected at the end of this year, the beginning of next year. The conclusion of the advocate general gives a lot of hope for a good result (for EU citizens).

Remember decisions mentioned concern directives that are no longer valid. Now we have Directive 2004/38/EC which broadens the right of residence. In fact the right exists as long a person does not benefit from social security. The only distinction now is between the first three months of stay and a longer stay.

The Citizen's Signpost Service gave me another answer to the same question:

Thank you for your inquiry.

Under Directive 2004/38, as the spouse of an EU citizen your wife has the right to enter and reside up to 3 months in any EU country without having to fulfil any conditions.

As a family member of an EU citizen’s family, your wife has a right to travel with you. Article 5(2) of the EU Directive on residence rights of EU citizens states that “Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement.â€

[Richard66]

I can't tell you to lie, but if that is what you understand, keep up the good work. Also it has to be done at the ECO at the British Embassy where you are applying from for the EEAFP. Have to agree that it is "madnees" though.

I can't pull that one on the Rome Embassy: they know me by now and they know we're only going on a visit. , as I have written two letters of protest about this nonsense and I'm about to write a third telling them I'm forwarding the whole case to the European Commission, including their shoddy replies, and suggesting they might inform Immigration that we're coming WITHOUT the visa and that failure to admit us will constitute further proof the UK is in breach of Directive 2004/38.

Yeah! You came to settle, changed your mind and went back and you are returning again. The important question in such a case is- How good are you at poker?

Let's see: "Oh, Mr Dodge, this is is tenth time you return to the UK to settle! Will you change your mind as you did the other nine times and come back to Italy?"

Thank you, Prawo, I'm starting to see the light at the end of the tunnel. I just hope it's not the Eurostar coming in our direction!

You are right: I'm bashing the Embassy with the NEW directive and they are quoting decisions based on cases judged under the OLD directives.

I cannot find any reference to the Eind vs The Netherlands case. Akrich I found and it has also been taken into account by the UK authorities, who are told they cannot deny entry even when the UK citizen has deliberately gone abroad to benefit from EU legislation.

To make the waters murkier I must add that in Italy they still do not have the model for the EEA residence card! Unbeleveable as it may seem, the Government has not got around to producing them yet, so what the family member gets is one of two documents:

1) "Permesso di Soggiorno per Stranieri/a Permit of Stay for Foreigners"(sic) valid for 5 years, with this comment: "Reason of Stay: Family reasons" (in Italian) and with the name of the husband/wife and either (in Italian) "wife/husband of an EU citizen" or "wife/husband of an Italian citizen"

Or

2) "Carta di Soggiorno per Stranieri/a Permit of Stay for Foreigners" (sic) Permanent with the name of the husband/wife and the comments (in Italian) "Reason of previous Stay: Family reasons" and then either "wife/husband of an EU citizen" or "wife/husband of an Italian citizen."

They tend to give the former to non-EU family members and the latter to non-Italian famlily members, but again this is not the rule.