Schengen Visas for non-EU Spouse - Queries

[manicminer]

Dear all,

As this is my first post as an EU/UK citizen living in Asia, I would like to ask a general question about the practicalities of how to get a Schengen visa for a non-EU spouse (for settlement in an EU state ) issued with the minimum of fuss.

I am starting this thread because I am currently trying to get up to speed with how Directive 2004/38/ EC actually works in practice, as at some point in the future it is likely I will use it to move to an EU country to start a new life with a non-EU spouse.

As I understand it, there seems to be a fair amount of inconsistency between EU embassies in their documentary requirements for EU nationals travelling with (or subsequently followed by) their non- EU spouse when applying for a short-term Schengen visa for the spouse under the provisions of Directive 2004/38/EC.

This seems to result in refusals in some cases where the visa is refused for reasons that are clearly inconsistent with the provisions made in the Directive. E.g., failure to provide a return ticket, missing financial details, or the embassy may even state that they are not satisfied the Schengen visa applicant will return to their country of application after 90 days (which is illogical if the purpose is settlement).

These inconsistencies seem to be compounded by the fact that clear , consistent information for Schengen visa applicants (for the special case of 2004/38 EC for non-EU family members) is hardly mentioned on many embassy websites despite it being referred to specifically on most Schengen visa application forms obtained from the same websites.

I would like to ask the following:
- Do EU embassies generally follow Directive 2004/38/EC or do they generally follow its implementation into that country's national law?
- Is the Directive simply a set of guidelines or does it need to be followed by all EU embassies?
- And most importantly, if national implementation of the Directive is inconsistent not only between different EU states but also between embassies of the same state, how can an applicant know which embassies are the most favourable to apply to if you just want to obtain a visa for your non-EU spouse? I.e., without having to jump through a hundred hoops just to move to another country.

It almost seems like a lottery, and short of emailing each respective embassy before applying to confirm that they respect the Directive's requirements, I don't see how it is possible to ensure one avoids potential unfair refusals and/or delays.

Any practical experience/advice/thoughts on the points I've mentioned above would be great!

Many thanks,

MM

[secret.simon]

I will answer two of the questions (really one in substance) that you raise as they are general questions.

- Do EU embassies generally follow Directive 2004/38/EC or do they generally follow its implementation into that country's national law?
- Is the Directive simply a set of guidelines or does it need to be followed by all EU embassies?

A directive is not a law in itself; what a directive does is it creates a legally required outcome. How the result is to be achieved is left to each individual state.

Thus it is entirely possible for each state to have its own laws and rules as to ensuring that the outcome is achieved.

Each embassy should and ought to implement its own national laws, keeping in mind that the outcome is specified. But the method to get to the objective can vary.

Also see: Directive (European Union).

[Obie]

A directive is a law, although it does not have directive effect before the deadline for transposition , and unlike a regulation for which there is no specific requirement to transpose.

If a state fail to properly implement a Directive, and the wording is clear and precise, designed to confer a right on an individual . The individual is entitled to rely upon it in a court of law. If there are inconsistencies between it and the national provision implement it, national law are required to ignore the offending national provision.

The difference is that a directive cannot be invoked in court against an individual.

[manicminer]

Thanks for the detailed replies.

Thus, in a sense, for the uninformed, is it effectively a 'lottery' when applying for a Schengen visa for a non-EU spouse? What is the current state of affairs in terms of national compliance with the directive (an expansive question I admit)?

I note that there were compliance studies done with regard to national implementation of 2004/38/EC (I can provide links if anyone wants them) around 2008 and 2009, but are there any more recent compliance studies available?

Which countries seem to apply the directive more consistently and correctly for non-EU spouse Schengen applicants?

For example, I am currently interested in Germany and Austria as possible settlement destinations, so how do these countries differ in their application of the directive for visa applicants?

I have seen it suggested elsewhere that some are under the impression that Germany applies the directive more effectively - whether true or not, I am not sure.

Can anyone point out the URL for the relevant sections of Austrian law for non-EU spouse visa applicants applying under 2004/38/EC - I haven't found anything yet.

For me, choosing an embassy to apply to at this point is a real option because right now I have no definite or decided destination in mind as I am able to gain work in most EU states fairly easily. Once I'm feeling a bit more clued up on the visa application process, I'll also start looking into how different states issue residence permits.

Thank you again for any replies.

MM

[manicminer]

Dear all,

I understand that under Directive 2004/38/EC, if an EU national is travelling with their non-EU spouse to exercise their treaty rights, then travel tickets are not required when applying for the Schengen visa.

I also understand that under the directive, if the EU citizen is travelling with the spouse for settlement, they need to prove that they will be travelling together.

What constitutes this 'proof' in a legal sense acceptable to embassies?

- A letter from both parties? and/or
- Fully-booked flight tickets? and/or
- Flight reservations? and/or
- A notarised affidavit or affirmation?

What is the burden of proof? How can one prove such a thing?

I note that flight tickets are not a requirement under the directive, and do not in themselves prove anything, but some embassies seem to be asking for these.

Cheers,
MM

[manicminer]

Dear all,

Are there any links to reliable templates for the letters that many seem to be submitting with non-EU spouse Schengen visa applications for settlement purposes under 2014/38/EC?

Many thanks,

MM

[manicminer]

Just wanted to ask if the validity of the Schengen non-EU spouse visa is automatically 90 days when applying under 2004/38/EC for settlement?

If the visa issued is for less than 90 days, in what position is the non-EU spouse? Do they still have 90 days in reality after entering the EU state (since they are settling and will apply for residency) or does this issue need to be challenged at the time of issuance of the visa?

Also, are such visas normally single or multiple entry?

Sincerely, MM

[CR001]

Please keep your posts and questions in a single topic.

[manicminer]

Sorry, but I was just separating Schengen visas into different topics, e.g., validity, etc. I guess you are saying it is better to just keep all subtopics under Schengen visas under one thread?

[noajthan]

Good questions but you may be slightly over thinking this.

EU publishes a good pdf guide.
Can't easily post link from my phone & forum wont let me attach a pdf.
You can google 'eu free movement pdf' to find it.

Suggest search for blogs from people who have done 'Surinder Singh' via your country of interest.
They usually cover the nitty gritty of obtaining Schengen visa & etc.

Another good source is 'wordpress free movement' (again I'm struggling with links today).

[CR001]

Sorry, but I was just separating Schengen visas into different topics, e.g., validity, etc. I guess you are saying it is better to just keep all subtopics under Schengen visas under one thread?

If your questions/queries all relate to the same person and application, yes, keep it in one thread/topic please.

[liksah]

You're overthinking this. Most Schengen visa cases for non-EU spouses of EU nationals are successful. You may or may not get 90 days, they may or may not know the rules up front, you may or may not need to inform them of the rules in force, but most of the times, there shouldn't be a major issue.

Some consulates ask for additional documents and are more fussy (this is not legal) but since you are flexible, follow the path of least resistance. Check the websites of the consulates where you are and see which one mentions the directive (some actually do) and asks for the least documents.

Ultimately it boils down a lot to individual assessment. How long have you been married and does the marriage 'seem' legit to them. If your marriage is legitimate, there is no need to worry. Unfortunately, in the clear cases of harassment that are known, it's mostly because there is some suspicion regarding the marriage (this may completely be unfounded).

The only country actively making it hard for absolutely no legal reason is the UK. As long as you don't have plans to go there (do you?) - you should be okay. Read the Guide to the Directive[1], Print the relevant pages, when you go to the embassy if you have any issues, show them those pages. Should work fine.

[1] Guide to the Directive - http://ec.europa.eu/home-affairs/faq/fr ... _ec_en.pdf

[noajthan]

Fyi as mentioned earlier:
https://eumovement.wordpress.com/2007/0 ... u-citizen/

[manicminer]

Thanks for the replies.

Yes, it is true that I am perhaps over thinking things. I always say prepare for the worst and hope for the best.

Incidentally, I'm not married yet, so when we do apply for the visa to a yet undecided destination, it will likely be shortly after the marriage.

MM

[manicminer]

I found the following template for non-spouse visa applications. Looks quite clear. Could useful for others.

http://surindersinghfiles.weebly.com/sc ... tters.html

MM

[manicminer]

I'll also try to answer my own query regarding the back city period of the visa:

According to 2004/38/EU:

Article 6
Right of residence for up to three months

1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.

2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.

Thus, regardless of whether one only gets stamped with 10, 20 or 50 days, the non-EU spouse can still stay without applying for residency for up to 90 days providing I am still exercising my treaty rights. That's how I read the above parts of the directive.

MM

[liksah]

Yes, you will have the right. But prepare to answer some pointed questions by border guards when you leave if you do not decide to process residence during the same visit.

For the most part, as long as you fill 90 days as the duration of your visit on the Schengen visa form (which you will have to fill), you should get a visa for 90 days. Make sure you also ask for a multiple entry visa.

[manicminer]

Yes, you will have the right. But prepare to answer some pointed questions by border guards when you leave if you do not decide to process residence during the same visit.

Understood.

For the most part, as long as you fill 90 days as the duration of your visit on the Schengen visa form (which you will have to fill), you should get a visa for 90 days. Make sure you also ask for a multiple entry visa.

Is the multiple entry just for convenience in case we leave the Schengen zone and want to return within the validity of the visa, or is there another reason to request this rather than just a single entry?

MM

[liksah]

There's no other reason.

[khanmzk]

@MANICMINER Do not confuse yourself check this link.and also depends from which country you are applying
visa under EU free movement directive.

http://europa.eu/youreurope/citizens/index_en.htm

[manicminer]

It seems like its just a case of applying when the time comes, perhaps checking with the embassies in advance.

However, with the recent news of some countries restoring border controls, at least for the moment, it seems that there is at least the possibility of the whole Schengen system being affected.

Hopefully things will calm down as it would be a great shame to lose freedom of movement: it"s no fun at all having to deal with visas in Asia and I certainly hope I won't need one for personal EU travel in the future.

MM

[manicminer]

UPDATE

Dear all, so far so good,

We were able to get married in China, albeit with quite a few irritating documentary hurdles to cross. Next step is translation/notorisation and Legalisation of our red marriage books at the relevant notary public in China, then Chinese Ministry of Foreign Affairs followed by another visit to the UK Embassy to finalise the English translations.

After that, we need to firmly decide which country we are going to apply to for a Schengen visa for my new Chinese wife.

At the moment we are considering Portugal. We were previously considering Austria, but now think a warmer climate might be better; apart from that, Austria has temporarily suspended Schengen (as I understand it), so I'm not sure how that will affect any visa applications.

We're just trying to decide the best Portuguese Embassy to apply to at the moment as the Beijing Embassy is quite far so we may go to Macau or Bangkok to do this.

At times, it seems all so complicated, and with Cameron's latest proposals including provisions for excluding non-EU spouses of UK citizens the initial right to Schengen visas under 2004/38/EC, I can't help but feel that non- EU spouses of EU citizens are simply being disrespected by the UK government.

Hopefully, all will go well in the end though.

[manicminer]

Relevant link on proposed changes for non-EU spouses

http://eulawanalysis.blogspot.be/2016/0 ... u.html?m=1

[manicminer]

My current situation is that I am preparing to make my visa application, but due to location it will have to be through the local German consulate on behalf of another member state.

I am a bit concerned though because the Documentary Requirements List for EU Family Members for all German Embassies China state at the top "Not planning permanent residence", which completely contradicts article 7 of the Directive.

The respective German visa application centres also have a related statement for EU Family member applictions where it asks you to click and agree with a statement that says "Will not stay more than 90 days" which is no use at all to me as I intend to establish residency, together with my wife, after we travel to Europe together.

Should I query this by calling the consulate? It sounds like they are trying to put people off applying? I had also wondered if these were family visit visa requirements and that the correct requirements are simply not available online.

[manicminer]

Here's the link to the Document List.

At the top it appears to say "A permanent stay is not planned"

http://m.china.diplo.de/contentblob/459 ... 092015.pdf

Any help is much appreciated.

P. S. The list is in German

MM