Can I use Directive 2004/38/EC to travel to France?

[juilanwood]

I am a South African citizen living and working in the UK. I have been on a work permit for 4 years and married a French citizen in France in July 2007.
My work permit expired on the 17th January 2008 but I applied for a Family Permit based on my marriage to a French wife with form EEA2.
This application was submitted at the end of November with all necessary documentation and certified copies of our passports as we need to travel. I have a letter confirming the application has been lodged from the Home Office. By law they have up to 6 months to consider our application and according to the BIA website they are currently looking at applications lodged in September so I should expect a minimum of 2 months before my Family Card is processed.

What I would like to know is whether I can use Directive 2004/38/EC to travel to France before I have my Family Permit in my passport without my wife for a ski trip at the end of Feb?

I plan to fly to Geneva (I don't need a visa to enter Switzerland) and cross the border into France and head to the Alps for a week with friends but unfortunately my wife does not have enough holiday to join us.

From what I've read regarding Directive 2004/38/EC and the EU family permit it seems that the Family Card is a confirmation of my rights as the spouse of an EU citizen rather than a visa in itself and therefore I should be afforded the same rights as her when travelling for a short visit within the EU if I can prove we are married.

I know I could just cross my fingers and hope no-one is checking on the Swiss-French border but this is not the option I want to take and think I may be able to cross legally anyway.

I cannot apply for a Schengen visa from the French Consulate as I don't have a stamp in my passport with at least three months remaining confirming my stay in the UK and a letter from the Home Office won't do. I've spent enough time at the French Consulate in London over the years with my many previous Schengen applications to know they don't bend their guidelines for anyone.

This is what I've found in the directive and the handbook for border guards.
http://ec.europa.eu/justice_home/doc_ce ... 6_F_en.pdf

3.1.1 - 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).

3.1.3 As a consequence, checks on persons enjoying the Community right of free movement should be limited, as a general rule, to the verification of their identity and nationality /family ties (so-called “minimum checkâ€

[Directive/2004/38/EC]

No. Your right of free movement within Europe is only when you travel with or to meet your wife. You do not have an independent right. And especially not if you do not have a Residence Card.

You can always get a visa though. Or go skiiing in Switzerland!

[juilanwood]

How can I get a visa if the French don't issue one without 3 months left on a UK visa.

I could go skiing in Switzerland but it's not quite the same going by myself when all your friends are elsewhere.

[mym]

How can I get a visa if the French don't issue one without 3 months left on a UK visa.

You can't.

Your only way to get in is to travel *with* your wife and assert your rights by presenting the passports and marriage certificate.

[Directive/2004/38/EC]

Put another way, you only have a right of free movement in the EU when you are travelling with your wife.

[juilanwood]

Thanks for the advice.

Would my wife be able to travel with me, cross the border into France whether being checked or not and turn around and fly immediately back from Geneva. Would I then be legal in France as we entered together but she returned earlier and would I have issues leaving?

Also, if I had been able to apply for a Schengen visa based on being the spouse of a French national am I then able to travel freely by myself in Schengen countries or do I still need to travel with my wife as the Schengen visa was issued not as a short stay visa but because I am the husband of a French citizen?