EEA2/refused boarding the plane without schengen 2 holland

[sillym]

Hi, I am a non-EU natioanl married to A Dutch national and we have been living in the UKsince NOvermber.I have received my EEA2 Residence Card and have checed the dutch embassy whehetehr i still need to get a schengen isa . On the embassy's website it clearly says: that if I have the EEA2 Residence card and am travelling with my spouse under Directive 2004/38/EC I DO NOT need to have a visa. I printed out the directive and we had our passports with us and my residence card in my passport and our marriage certificate, but BMI did not let me on the flight. They said i need a visa. They were extremely rude and called the immigration office in Amsterdam and the guy there refused to talk to my husvand (thats what the airline worker told us). We called them ourselves and one person said it is true and i do not need a visa but when we then spoke to the head of the immigration he said we do. Needsless to say we were very fristrated and i never felt more humiliated in my life. They treated me like a dog and the most frustrating thing was that all we did was following the law. So we got stuck at the airport, had to book a hotel, book a flight for me and our 1 year old son to my home country where now I will be arranging a Schengen visa to be able to enter holland and my husband went to Holland alone. Moreover, I am pregnant and this all has clearly caused us a lot of stress.I am so frustrated and we will be filing complains or even getting a solicitor because this is just unfair and someone needs to be responsible for this. Please advise who do we need to complain to: the Dutch embassy in London or BMI airline or Home Office?Thanks for reading this and your support will be much appreciated.

[John]

If I were you I would sue the airline, for breach of contract! It is about time someone did that, and so force the airlines to improve their staff training.

[ca.funke]

Hi sillym,

first of all my "condolences" - what you experienced is the worst-case scenario.

You can read all about the general situation >>here<<.

(The Irish 4EUFam is the same like the UK EEA family-permit, so it's the same situation)

In your case the airline is responsible, as they are ultimately the reason for you not reaching your desired destination due to unlawfully not letting you board.

You will have to sue the airline through a solicitor, as they will deny their liability (at least that's my guess).

Please also see my petition to the >>European Parliament<<, which is exactly around what you experienced.

You may want to >>join in<<, citing my petition and outlining your situation to them as well?


Just as a sidenote: I really lost all my trust into the institutions of the EU by now. If such an important issue, the freedom of movement, even for a small group of people is not thoroughly and well implemented, and deficiencies in the system not treated with utmost priority, how should we trust that these institutions are working for us?

This problem has been known for at least 1,5 years now, however no-one is really interested and no-one does anything about it.

I am a truly disappointed former pro-EU citizen, now I am between being an EU-sceptic and EU-phobic.


For yourself sillym, all the best with your pregnancy and good luck when suing the airline You should not only go for breach of contract, but also for compensation for separation from your husband and causing distress during pregnancy. But for all of that ask a lawyer.

[macaroni]

Take a screenshot of the consular page, so that even if the page is changed or edited, you can still show what you read before you travelled.

http://www.take-a-screenshot.org/

http://www.java.com/en/download/faq/screenshot.xml


Good luck with taking this matter further, I think that it's good idea to pursue this issue. It's simply wrong and should not be brushed under the carpet. You are a person and you did not break any rules, despite what a few uneducated airline "officials" may think.

This is one of the reasons why I have not bothered to travel for many years. The whole rigmarole of getting visas and getting all the right facts, paying fees, travelling into central London, waiting and wasting time, being treated with what I see as condescencion etc put me off from bothering.

Don't give up, write everything down that happened while you can remember everything clearly. If you took down the names of the airline "officials" or staff who dealt with you, that's good. Put it all in writing.

[paulp]

I think there is a greater issue that everybody is missing here. The airline staff phoned the immigration office (which I presume are the immigration people at the other end of the flight). If these guys say no, then the passenger will be refused entry and put on the next flight back.

So in this case, it's not just the airline people but the Dutch immigration officials who refused to follow the EU directive.

[ca.funke]

I'd say there is no "greater issue" - the law is the law - it doesn't matter what information whoever (and be it an immigration officer) gives over the phone.

The airline is responsible to -independently- know that the passenger in the above scenario was allowed to travel. Where they get this information from is their business.

The only thing that is relevant is who actually stops your journey - this is an unlawful act, and whoever does it (the question is not why he does it) is liable.

[thsths]

I think there is a greater issue that everybody is missing here. The airline staff phoned the immigration office (which I presume are the immigration people at the other end of the flight). If these guys say no, then the passenger will be refused entry and put on the next flight back.

It is possible that they are partially at fault, but I guess that also depends on the details. Did the airline staff explain the situation correctly? Did they call the right person?

As far as I am concerned, the airline has to check your documentation, and so they should know the rules. And they do not have to decide whether you will be let into the country, but only whether you have the required documentation, and that was certainly the case.

Anyway, under the "denied boarding" directive, this should be worth 250 Euro compensation plus a refund of the ticket.

[ca.funke]

Anyway, under the "denied boarding" directive, this should be worth 250 Euro compensation plus a refund of the ticket.

This has nothing to do with the "denied boarding" directive. This would be the case if boarding is denied with the reason "overbooking". (I wonder if any airline wouldn't give a pregnant women some priority, thus "overbooking" should never be a reason for a pregnant person to be denied boarding? But that's a different topic.)

The reason given was "you do not possess the correct papers as required by immigration" - while clearly the papers were OK, thus denying boarding was unlawful.

Compensation should, imho, be sought for the ticketprice, unlawful separation from a family member, illegal restraint, causing unnecessary distress during pregnancy... And I do hope that a smart lawyer will come up with many more points, smash BMI big time and maybe we will finally be able to get some press-coverage for this topic. (I tried before, but interest is, let's say, limited)

[SMOOTH OPERATOR]

I think there is a greater issue that everybody is missing here. The airline staff phoned the immigration office (which I presume are the immigration people at the other end of the flight). If these guys say no, then the passenger will be refused entry and put on the next flight back.

if you think BMI is not to be blamed, are you then saying that BMI employees have been given adequate training!!!! where a staff ignores the EU Directive in favour of a telephone call to Holland

So in this case, it's not just the airline people but the Dutch immigration officials who refused to follow the EU directive.

how have BMI not refused to follow the EU Directive???

[thsths]

if you think BMI is not to be blamed, are you then saying that BMI employees have been given adequate training! where a staff ignores the EU Directive in favour of a telephone call to Holland

I think the problem is a bit more complicated. Of course a Residence Card is sufficient to travel across Europe. The Directive makes this very clear, and I am sure someone at BMI knows this.

However, for the longest time countries would still refuse you entry, and actually many countries still have this policy. So to save everybody some hassle (and themselves the cost of a return flight), BMI would not let you board with only a Residence Card. This was already illegal: two wrong do not make a right. But it was not worth arguing over.

Now of course BMI did not notice that a few countries have now correctly implemented the Directive, and this is where a harmless wrong turns into a harmful wrong. Which means now you can actually claim damages

[ca.funke]

...harmless wrong...

It doesn't matter which country implements the directive and which doesn't.

The non-implementation by some countries, as you say, does not make it right to deny boarding "to avoid hassle". - If a country does not implement the directive (such as Belgium up to this day), the directive becomes direct binding law.

If a country turns you back, the country is liable for compensation.

If the airline turns you back, the airline is liable for compensation.

All the airline would be allowed to do to "avoid hassle" is telling you that the country of destination may unlawfully turn you back. (sounds unbelievable in itself, but it happens) The airline is not allowed to do more. If, as a consequence of the unlawful deportation by the destination-country, the airline will incur a loss, the airline can equally claim compensation from the state acting unlawfully.

The easiest way to understand who is liable is: Who is the first person to actually (physically) deny you continuing your way? This person / organisation is liable - and no-one else.

[Richard66]

I think there is a greater issue that everybody is missing here. The airline staff phoned the immigration office (which I presume are the immigration people at the other end of the flight). If these guys say no, then the passenger will be refused entry and put on the next flight back.

They allege they called the immigration people. For all we know they might have called the auntie that lives on the moon.

if you think BMI is not to be blamed, are you then saying that BMI employees have been given adequate training!!!! where a staff ignores the EU Directive in favour of a telephone call to Holland

I find that employees, given the choice between the law in all its glory and what their computer screen says, choose the latter: "I don't care what your Directive says, but the programme says you need a visa!"

If the airline turns you back, the airline is liable for compensation.

If only I had done just that last year! Ours was just that situation, except the airline called the British Embassy in Rome.

[JAJ]

Perhaps the airline doesn't feel capable of making an assessment as to whether the marriage is genuine or not.

Also, I am not sure if there is any legal obligation on the airline to carry such persons without a passport entry clearance. Especially if they have worded their conditions of carriage well.

[ca.funke]

Perhaps the airline doesn't feel capable of making an assessment as to whether the marriage is genuine or not.

They don't have to. Being in posession of the residence card according to 2004/38/EC shows that the issuing state believes the marriage is genuine. That's all it takes.

Also, I am not sure if there is any legal obligation on the airline to carry such persons without a passport entry clearance. Especially if they have worded their conditions of carriage well.

Taken from >>bmi's Terms and Conditions<<:

Passports and visas

Passports are required for all international flights and should be valid for at least 3 months beyond the length of stay. EU and EEA nationals (EU + Iceland, Liechtenstein, Norway) and Swiss nationals are permitted to enter any EU/EEA member state on production of a valid national passport or national identity card.

A passport is not required for travel between Great Britain and Ireland, Northern Ireland and the Channel Islands. However, passengers travelling with bmi are required to bring either a passport or some form of acceptable photographic identification when travelling between the UK and the Republic of Ireland. Please see acceptable forms of photographic ID, below. Follow the link for more information about acceptable forms of ID.

The procedures outlined above also apply to children and infants.

It is the responsibility of passengers to ensure they have the correct entry, passports and visa documentation, including travel insurance for the travel they are to undertake.

Passengers without the correct documentation will be refused carriage with the airline and will not be liable for any compensation. bmi strongly recommend that all passengers purchase adequate travel insurance prior to commencement of their journey.

When making a booking your name must match your name as it appears on your passport. We cannot accept you for travel unless all your documents match.

They say you need correct entry documentation. The entry documentation held in this case was correct. bmi incorrectly believed the documentation not to be correct.

Thus the boarding-refusal was not in accordance with their Terms and Conditions.

Of course in order not to expose themselves to the ambiguity this law created, it may be an idea to include into the terms "we do not carry passenger wishing to travel according to 2004/38/EC, as this keeps causing problems" - I just wonder if that would be legal.

Whatever - so far it's not in the terms, thus the airline remains liable.

[thsths]

Perhaps the airline doesn't feel capable of making an assessment as to whether the marriage is genuine or not.

And neither are they supposed to. They only have to check whether the travel has the required documents to legally enter the destination country. The decision is still with border control, and not with the airline.

Especially if they have worded their conditions of carriage well.

I still think that the "Denied Boarding" Directive applies. It says:

"denied boarding" means a refusal to carry passengers on a flight, although they have presented themselves for boarding under the conditions laid down in Article 3(2), except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation;

And the point is that the travel documentation was adequate, and only perceived inadequate. I do not think that the conditions of carriage can supersede this, although they may certainly try to argue that.

[ca.funke]

I still think that the "Denied Boarding" Directive applies.

Let me rephrase why I think the "Denied Boarding" Directive does not apply: It does

It's just that this is not all. Compensation cannot only be sought via this directive, but compensation can be sought also via all the other points I listed above. And they are much more severe than just not letting someone board.

If European Citizens are denied boarding because of overbooking we are angry, take the compensation and hop onto the next flight.

In the OP's case the passenger is told that she is allegedly not allowed to travel in principle. Not now, not on the next flight, not at all... unless a lenghty process (getting the visa) is followed.

Especially unbearable if pregnant - just imagine birth is planned in a chosen hospital somewhere, but suddenly you are deprived of your right to travel? Something a European would never waste a thought on...

[republique]

Especially if they have worded their conditions of carriage well.

I still think that the "Denied Boarding" Directive applies. It says:

"denied boarding" means a refusal to carry passengers on a flight, although they have presented themselves for boarding under the conditions laid down in Article 3(2), except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation;

And the point is that the travel documentation was adequate, and only perceived inadequate. I do not think that the conditions of carriage can supersede this, although they may certainly try to argue that.

If they called Border Control and they told them it was inadequate, then the basis of their refusal is valid. The Denied Boarding Directive does not apply. However as there was an error as to the accuracy of the information, the airline should reimburse your ticket, not compensate you. Sorry.

[SMOOTH OPERATOR]

Especially if they have worded their conditions of carriage well.

I still think that the "Denied Boarding" Directive applies. It says:

"denied boarding" means a refusal to carry passengers on a flight, although they have presented themselves for boarding under the conditions laid down in Article 3(2), except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation;

And the point is that the travel documentation was adequate, and only perceived inadequate. I do not think that the conditions of carriage can supersede this, although they may certainly try to argue that.

If they called Border Control and they told them it was inadequate, then the basis of their refusal is valid. The Denied Boarding Directive does not apply. However as there was an error as to the accuracy of the information, the airline should reimburse your ticket, not compensate you. Sorry.

whar are you on about????????????????????????? !!!!!!!

[ca.funke]

If they called Border Control and they told them it was inadequate, then the basis of their refusal is valid. The Denied Boarding Directive does not apply. However as there was an error as to the accuracy of the information, the airline should reimburse your ticket, not compensate you. Sorry.

The airline is responsible to know the law and which papers are correct. Where they get this information from is their business. If they believe incorrect information, obtained from whereever, that's their fault.

[republique]

If they called Border Control and they told them it was inadequate, then the basis of their refusal is valid. The Denied Boarding Directive does not apply. However as there was an error as to the accuracy of the information, the airline should reimburse your ticket, not compensate you. Sorry.

The airline is responsible to know the law and which papers are correct. Where they get this information from is their business. If they believe incorrect information, obtained from whereever, that's their fault.

Ok wish you luck. All I know is that if they get info from the Border Control and Border Control says no, they don't have to let you board. They are not responsible in knowing the law that's why they call Border control
That's that.

[SMOOTH OPERATOR]

ok that said. can you please back your argument up with any proof

[republique]

ok that said. can you please back your argument up with any proof

Are you serious? I have to prove it? Why don't you prove your position.
Denied boarding is for delayed flights or cancellations not for anything else
SEE http://europa.eu/scadplus/leg/en/lvb/l24173.htm and use some common sense.

[SMOOTH OPERATOR]

i never knew your common sense was better than mine

[ca.funke]

Hi republique,

It's easy to see why the airline is responsible:

If you ring the police and ask "may I steal stuff" and they say "yes" for whatever reason (they think you're kidding, whatever...) you are still not allowed to steal. You have to know that the law prohibits you to steal regardless.

Of course there are things which are prohibited, and you cannot know that they are prohibited. An example law-students in Germany usually learn is digging a source for water. It is (at least in Germany) illegal to dig for water without permission. But as any given person might not know this, you can get away with it once. Of course if found guilty you will know for the future, and if found guilty for a second time you won't get away with it anymore.

Now for the airline: No-one is as-it required to know the correct entry-requirements for any country. But if you operate an airline you have to know about that. It is the airline's responsibility to have correct information readily available.

Again: If they trust someone over the phone, but this person is giving incorrect information, then that's still legally the airline's problem.

Legally I'd see the matter as follows:

1. The OP can get compensation from the airline.
2. If the airline can prove that they were incorrectly advised by border-police they might be able to get compensation from the state. But that's the airlines' problem.

[republique]

i never knew your common sense was better than mine

I thought so