Refused a Free French Schengen Visa(Non-EEA spouse of Swiss)

Plum70 · Post by **Plum70** » Wed Jul 22, 2009 7:03 pm

My husband and I were at the French embassy today to routinely apply for a French schengen visa which (we believed) should be issued free of charge as I hold a UK Residence Documentation which states " non-EEA family member of a Swiss national"; also it was issued fee of charge at the French embassy last year. To my horror, we were asked to pay the full fee as, and I quote, "my husband is not a EU national but Swiss"! I explained that he (and therefore I) derives his rights from the EU Directive which, though Switzerland is not a signatory to, they do have bilateral agreements with the EU, one of which is the "Freedom of Movement of Persons'.

I was adamant about my position and the supervisor was called. She reiterated the same thing "Switzerland is not part of the EU. Pay or leave!". She went on to say that the officer who had decided to issue the previous visa free of charge made a grave mistake! No matter how hard I tried to explain she was not to be moved, and said that her system tells her differently. By the way, she also said that had we attempted to enter France with my residence documentation I would most likely have been turned back.

So we had to pay (we already have a trip booked in 2 weeks time!). God! I am livid!!! The supervisor also said that the embassy will be willing to refund me the full fee if I can supply proof that non-EEA spouses of Swiss nationals are entitled to equal treatment as EU nationals = a free schengen visa for their non-EEA family members.

I am looking at the Europa site for clues but no mention of Switzerland just the EU (of which Switz. is not a member), also can't complain to SOLVIT/Citizen's signpost as there is no Swiss representation!

Pointers guys!!! I am seething and reeling...

Tobbe · Post by **Tobbe** » Wed Jul 22, 2009 9:41 pm

Maybe the agreement is a good start:
"Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons "
http://eur-lex.europa.eu/LexUriServ/Lex ... 01):EN:NOT

(can't get this to be an URL for some reason, copy&paste instead)

Article 7

Other rights

The Contracting Parties shall make provision, in accordance with Annex I, for the following rights in relation to the free movement of persons:

(a) the right to equal treatment with nationals in respect of access to, and the pursuit of, an economic activity, and living, employment and working conditions;

(b) the right to occupational and geographical mobility which enables nationals of the Contracting Parties to move freely within the territory of the host state and to pursue the occupation of their choice;

(c) the right to stay in the territory of a Contracting Party after the end of an economic activity;

(d) the right of residence for members of the family, irrespective of their nationality;

(e) the right of family members to pursue an economic activity, irrespective of their nationality;

(f) the right to acquire immovable property in so far as this is linked to the exercise of rights conferred by this Agreement;

(g) during the transitional period, the right, after the end of an economic activity or period of residence in the territory of a Contracting Party, to return there for the purposes of pursuing an economic activity and the right to have a temporary residence permit converted into a permanent one.

Also the "Practical Handbook for Border Guards (Schengen Handbook)" specificly mention CH as having theese rights under part 3.1:

http://ec.europa.eu/justice_home/doc_ce ... 6_F_en.pdf

acme4242 · Post by **acme4242** » Thu Jul 23, 2009 10:37 am

I can't add much to Tobbe's good reply,

But I did find this
http://www.eda.admin.ch/eda/en/home/rep ... /visa.html
How to apply for a Short Stay Schengen Visa with the Swiss Embassy in Dublin

Visa handling fee

If you are married to an EU/EFTA citizen or one or both of your
parents are EU/EFTA citizens, the visa is free of charge.
Please provide the Embassy also with your marriage- or birth
certificate and your spouse's passport or your parent(s) passport(s) as proof.

So, The Swiss Embassy will give you a free Schengen visa.

btw, The essence of Freedom of movement means there are no barriers
such as fees. The French should understand this if they think about it.

Not sure if there is anything in the Schengen acquis.
But Directive 2004/38/EC is applicable across the whole EEA, its not limited
to EU countries only. As the French mistakenly quoted to you.

Hope someone else can provide better ammunition.

Tobbe · Post by **Tobbe** » Thu Jul 23, 2009 11:24 am

I missed this part the first time around:

Practical Handbook for Border Guards (Schengen Handbook)

6.3.2. If a person enjoying the Community right of free movement does not have the necessary
travel documents or, if required, the necessary visas, the Member State concerned must,
before turning him/her back, give such person every reasonable opportunity to obtain the
necessary documents or have them brought to him/her within a reasonable period of time
or corroborate or prove by other means that he/she is covered by the right of free
movement.
In case a third-country national, member of the family of an EU/EEA/CH citizen, is not in
possession of the required visa but can prove his/her identity as well as the family tie with
the EU/EEA/CH citizen, and if there is no evidence to establish that he/she represents a
risk to the requirements of public policy, public security or public health of the Member
States, a visa must be issued to him/her at the border. Such a visa must be issued for free
(see also point 7.10, Section I.

Plum70 · Post by **Plum70** » Thu Jul 23, 2009 11:37 am

Thanks Tobbe and acme. Much appreciated.

Section 3.1 of the Schengen border code provided sufficient info to start building a case against the French's ruling.

I have also found some info on the IATA timatic system (http://www.delta.com/planning_reservati ... formation/) that reveals the ffg passport and visa requirements for 3rd country nationals (as myself):

/ 23JUL09 / 1038 UTC

National: Nigeria (NG)
Residence United Kingdom (Great Britain) (GB)
Destination: France (FR)
France (FR)
Passport required.
- Passports and/or passport replacing documents must be valid on arrival.
Visa required, except for A max. stay of 3 months:
- for those, irrespective of nationality, holding family member" residence permit issued by United Kingdom (Great Britain) to a family member of an E.E.A. national or national of Switzerland, provided travelling with or travelling to join the E.E.A. national or national of Switzerland;

I will be arguing that (1) my rights of free movement derived from my husband have been infringed on and (2) I have been discriminated against irrespective of the EU-CH bilateral agreement of free movement which accord equal rights to CH nationals as to EU nationals, this being automatically extended to their non-EEA family members. Hence if the visa-free concession applies to FMs of the latter, why shouldn't it also apply to the former?

86ti · Post by **86ti** » Thu Jul 23, 2009 11:37 am

Yes, but those are the guidelines for the border guards. The Common consular instructions on visas for the diplomatic missions and consular posts only mention EEA nationals and that document is probably what the French embassy is relying on.

86ti · Post by **86ti** » Thu Jul 23, 2009 11:51 am

I would not rely on what the IATA says. Their opinion will be probably dismissed as the opinion of a private entity or whatever. It is actually IATA's duty/problem to know about the legislation though I do not know how they arrive at their conclusions.

Plum70 · Post by **Plum70** » Thu Jul 23, 2009 2:57 pm

Granted 86ti, the schengen code is for border guards. But this makes me wonder how they have arrived at a different directive at the border to that at the consulate? It shouldn't have to be this tumultuous harmonizing the EU/EEA law, EU-CH bilaterals, schengen codes, especially as there is a delineating thread running through - Free Movement of Persons.

Anyway, I have looked at a couple of EU embassy sites and so far only Germany appears to offer the visa-free concession to non-EEA family members of EU/EEA/EFTA nationals, of which CH is a member of the latter. We may go to them or the Swiss next time...

Sigh!

Tobbe · Post by **Tobbe** » Thu Jul 23, 2009 3:35 pm

The Swedes has a funny one.
http://www.swedenabroad.com/Page____54849.aspx

There is no visa fee for EU/EEA-spouses and their children (under 21), registered partners and co-habiting partners of EU/EEA nationals (does not apply for co-habiting partners of Swiss citizens). The original Marriage Certificate or original full Birth Certificate with parents' names must be submitted together with spouse's/parent's original passport.

What exactly do they mean? Do they mean that they accept family member of Swiss nationals under directive 2004/38/ec but has somehow removed the â€œdurable relationshipâ€

Plum70 · Post by **Plum70** » Fri Jul 24, 2009 11:09 am

Tobbe wrote:The Swedes has a funny one.
http://www.swedenabroad.com/Page____54849.aspx
There is no visa fee for EU/EEA-spouses and their children (under 21), registered partners and co-habiting partners of EU/EEA nationals (does not apply for co-habiting partners of Swiss citizens). The original Marriage Certificate or original full Birth Certificate with parents' names must be submitted together with spouse's/parent's original passport.

What exactly do they mean? Do they mean that they accept family member of Swiss nationals under directive 2004/38/ec but has somehow removed the â€œdurable relationshipâ€

caribbeangeorge · Post by **caribbeangeorge** » Fri Aug 07, 2009 1:46 am

I answered you on other post already.

... and found this: again happy digging
http://eur-lex.europa.eu/LexUriServ/Lex ... %29:EN:NOT

Article 2

Non-discrimination
Nationals of one Contracting Party who are lawfully resident in the territory of another Contracting Party (between THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND and THE FRENCH REPUBLIC) shall not, in application of and in accordance with the provisions of Annexes I, II and III to this Agreement, be the subject of any discrimination on grounds of nationality.

...and this would be the case!

Article 7

Other rights

The Contracting Parties shall make provision, in accordance with Annex I, for the following rights in relation to the free movement of persons:

(a) the right to equal treatment with nationals in respect of access to, and the pursuit of, an economic activity, and living, employment and working conditions;

(b) the right to occupational and geographical mobility which enables nationals of the Contracting Parties to move freely within the territory of the host state and to pursue the occupation of their choice;

(c) the right to stay in the territory of a Contracting Party after the end of an economic activity;

(d) the right of residence for members of the family, irrespective of their nationality;

(e) the right of family members to pursue an economic activity, irrespective of their nationality;

Your husbands nationality includes Schengen and therefore you devinitly fall under Schengen regulation and there should be no fee.

However...

If you want to pick up a fight, and I think it's worth, here some sites:

Choice # 1
http://ec.europa.eu/citizensrights/fron ... ity_en.htm

Choice # 2
http://ec.europa.eu/youreurope/nav/en/c ... ex_en.html

Choice # 3
http://ec.europa.eu/solvit/site/centres ... m#ukingdom

Choice # 4
http://www.ombudsman.europa.eu/home.faces

flyboy · Post by **flyboy** » Thu Sep 24, 2009 12:57 am

http://vosdroits.service-public.fr/part ... 3512.xhtml

the section "Ressortissants non europÃ©ens accompagnants "

Plum70 · Post by **Plum70** » Thu Sep 24, 2009 5:47 pm

Thanks flyboy. My French is still one-legged so will wait for my hubby to translate!

I hope there's something +ve to fish out of it!

Plum70 · Post by **Plum70** » Mon Oct 05, 2009 5:32 pm

I located the relevant sections of France's transposition of the EU Directive in which Swiss nationals and their family members are treated exactly same as EU/EEA nationals and their FMs:
Partie Legisltive, Livre Ier Titre II: Articles L.121-1, L.121-2 & L121-3).

Hence, the visa-free concession is also applicable to the FMs of the former as stated in Partie rÃ©glementaire, Livre Ier Titre II: Article R. 121-1.

I have now written to the French embassy citing the above and requesting a full refund for the incorrect charge.

Will post the outcome for anyone interested.

86ti · Post by **86ti** » Mon Oct 05, 2009 5:50 pm

Good luck!

It appears that actually a lot of countries treat Swiss just like EEA nationals.

Plum70 · Post by **Plum70** » Mon Oct 05, 2009 6:39 pm

Logically I could not see why any Member State would want to 'alienate' Switzerland in this respect, especially with the EU-CH bilaterals and the spirit of cohesion and legislative alignment that it represents.

caribbeangeorge · Post by **caribbeangeorge** » Mon Oct 05, 2009 7:21 pm

Plum 70

Chapeau, here is someone with teeth!

Poor French, the whole arrogance for nothing!!

All the best

George

Plum70 · Post by **Plum70** » Mon Oct 05, 2009 7:34 pm

caribbeangeorge wrote:Plum 70
Chapeau, here is someone with teeth!

Poor French, the whole arrogance for nothing!!

All the best

George

Merci a vous!

Post by **Directive/2004/38/EC** » Thu Oct 08, 2009 1:10 pm

Plum70 wrote:Granted 86ti, the schengen code is for border guards. But this makes me wonder how they have arrived at a different directive at the border to that at the consulate? It shouldn't have to be this tumultuous harmonizing the EU/EEA law, EU-CH bilaterals, schengen codes, especially as there is a delineating thread running through - Free Movement of Persons.

It is very clear that, in most cases, a countries border guards and embassy visa people work for very different organizations. One is a administrative post, and the other is a quasi law enforcement post.

I observe (usually) the border guards are better informed of the law, maybe because they are law enforcement.

flyboy · Post by **flyboy** » Sat Oct 17, 2009 8:56 am

Plum70, here it is:

http://www.diplomatie.gouv.fr/fr/articl ... icle=70321

http://www.diplomatie.gouv.fr/fr/france ... 70321.html

GratuitÃ© : les Ã©trangers suivants bÃ©nÃ©ficient de la gratuitÃ© :

les membres Ã©trangers des familles des ressortissants des autres Etats de lâ€™UE/EEE et de Suisse (dÃ©cret du 11 mars 1994 modifiÃ©) ;

flyboy · Post by **flyboy** » Thu Oct 22, 2009 8:27 pm

Plum70, any update regarding your refund?

Plum70 · Post by **Plum70** » Mon Oct 26, 2009 5:41 pm

flyboy wrote:Plum70, any update regarding your refund?

Cheers for the links flyboy - you have been of immense help.

No, no updates yet. I understand from the French embassy's site that turn around times for queries are anything from 20 working days upwards. I'll give it till 8th November (1 month) before I begin to press hard.

Plum70 · Post by **Plum70** » Fri Nov 27, 2009 6:42 pm

At last! - It is with sumptuous delight that I announce that the French embassy, as of today, has accepted that they wrongly charged us for the schengen visa. A refund is on its way by way of a cheque...

En fin!

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Refused a Free French Schengen Visa(Non-EEA spouse of Swiss)

Refused a Free French Schengen Visa(Non-EEA spouse of Swiss)

EU and Switzerland