The effect of EU Directive 2003/109/EC on Shengen

[Dawie]

Does anyone have any idea if the implementation of this directive might hopefully allow UK permanent residents who ordinarily require Schegen visas to travel to the rest of the EU to travel without requiring one? Hopefully it will because the current situation is ridiculous. If you are a UK permanent resident surely you deserve the right to travel to the rest of the EU without a visa.

[John]

Unfortunately not. Here is the Directive.

If you look at Whereas (25) you will see it reads :-

25) In accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, and without prejudice to Article 4 of the said Protocol, these Member States are not participating in the adoption of this Directive and are not bound by or subject to its application.

So this Directive will not change the position at all, as regards the UK and Ireland.

Don't shoot the messenger .... personally I wish the situation was very different!

[bash_h]

Nope it wont change anything unfortunately.

However, if your spouse is British (or an EU citizen), its very easy to get a schengen visa (you wont be treated like any other non-EU applicant, rather a spouse of an EU citizen)

[Dawie]

If you read it, it seems to imply that the UK, Ireland and Denmark are not bound by it in the sense that they would not have to recognise the residence permit of another EU country, but there is nothing to say that even if these 3 countries opt out, that other EU member countries wouldn't recognise a UK residence permit. In other words there is nothing in the directive that would prevent other EU countries from unilaterally recognising residence permits from these 3 countries that have chosen to opt out. However, there does seem to be a precedent of reciprocity in these matters.

Any ideas, thoughts?

[tt]

I thought about this too, and was also going to post about it.

If "Member States" in the Directive, which strangely enough is not defined in the Directive, includes all the member states of the EU, then you would be right - subject to paragraphs (25) and (26) in the preamble of the Directive.. Paragraph (25) states:-

In accordance with Articles 1 and 2 of the Protocol on
the position of the United Kingdom and Ireland, annexed
to the Treaty on European Union and to the Treaty
establishing the European Community, and without
prejudice to Article 4 of the said Protocol, these Member
States are not participating in the adoption of this Directive
and are not bound by or subject to its application.

Paragraph 26 is almost equivalent and relates to Denmark.

First, I expect the Member States are defined more generically somewhere else.
Second, I can't get hold of the text of the Protocols, but they might be useful to look at (at least Articles 1, 2 and in the case of the UK and Ireland, 4).
Third, there must be some understanding or standardised legal interpretation of the not participating and not bound by or subject to expressions.

I mean, it could mean that the other Member States can take it that UK, Ireland and Denmark are not subject to the Directive - and are thus not part of the subject matter of the Member States - that they're not to be included in the definition of Member States.

But I agree, I think, that you could argue that the other Member States might have to recognise the UK, Ireland and Denmark in this Directive - which would fly in the face of reciprocity of course. So I wonder how this is resolved in the EU. Anyone know?

[Dawie]

Third, there must be some understanding or standardised legal interpretation of the not participating and not bound by or subject to expressions.

Well, if the Schengen agreement is anything to go by, then I doubt other member states will recognise a UK residence permit. The UK and Ireland kind of went "talk to you" to the idea of Schengen and the main consequence of that is that any type of UK visa does not grant you access to the Schengen area if your nationality requires a Schengen visa. I suspect this was more out of spite than anything else from side of the countries who did sign up to Schengen because as almost anyone who has had to apply for both a UK and a Schengen visa can tell you, the UK authorities are definitely far stricter when it comes to issuing visas than their Schengen counterparts and therefore you would logically think that if you had a UK visa it should be more than enough proof to allow you to enter the Schengen space without requiring another visa. Unfortunately logic does not always apply to immigration issues.

[tt]

So.. let's say, that "Member States" DOES include UK, Ireland and Denmark... then all those other Members of the EU MUST recognise any long-term residennt visa issued by the UK, Ireland or Denmark. Not that they will do that, of course... or will they?

[virtual-writer]

Were the questions in this thread ever answered?

[sunnyday]

what's the chance of you, as a permenant resident of the UK, getting rejected by a schengen member state ?

Something ive never heard of. but I wish they changed the law too. The process of obtaining a visa is too much of a hassle - appointment, document..etc.

yes sorry. I meant to say that you are unlikely, as an UK permanent citizen, to be rejected applying for a schengen visa. At least this is something i've never heard of.

[Dawie]

Unfortunately as it stands at the moment having any form of UK residence permit does not entitle you to enter the Schengen area without a visa if you ordinarily require one for the Schengen area.

[Adel]

This may be of interest to people.According to the European Parliament AND Solvit centres across Europe.Directive 2004/38/EC expressly means that the holder of a EU residence card that clearly states FAMILY MEMBER OF EU CITIZEN is exempted from the visa requirements of any sort,and they advised that any problems relating to the non adherence of this by the authorities ,i.e border guards ete ,the people should contact SOLVIT immediately.However the only rule is that the residence permit HAS to be a RESIDENCE CARD OF A FAMILY MEMBER OF EU citizen.

Sorry about the repetition but that was the only point they also stressed to our enquiries repeatedly,so apparently regardless of how the law is interpreted,The European Commision has expressly stated its own view of its directive therefore any legal action as a result of infringements is a foregone conclusion in favour of the EU spouse and Non EU family member,apparently prior to the dawning of the directive,there were various petitions and legal questions surrounding why the holders of i.e Belgian EU(family member) residence cards couldnt enter the UK and vice versa and the EU commision held that it is not until Directive 2004/38/EC becomes a legal instrument that this would be possible.I was given casefiles to read up on pertaining to this and can confirm that there was no legal instrument that provided for entry solely on that account.

Apparently armed with a EU residence card issued by ANY EU member state and with spouse in tow(even without)and apparently even WITHOUT any documentation,they STILL are obliged by law to give every opportunity to prove or corroborate that they are covered by the freedom of movement directive.

I trust this information should be useful,contacting your SOLVIT centers or the EU commision itself will corroborate the above.Its quite clear.

[Dawie]

Unfortunately most air carriers are not aware of Directive 2004/38/EC and will not let you board the airplane if you normally require a Schengen visa and don't have one.

In addition even if an airline allows you onto their plane without a visa you will almost certainly encounter problems on arrival in a Shengen country because most Shengen country border police are also unaware of Directive 2004/38/EC.

Directive 2004/38/EC is a great piece of legislation in theory, but in practice it seems to have put a firm wedge between the UK and Ireland on the one side, and the Schengen Agreement countries on the other with neither side willing in practice to trust the other side's visa issuance procedures.

[Adel]

If they do not allow you on board,they are infringing on your air passenger rights and are therefore liable for litigation,Ignorance of the law is not an excuse especially if (as I was told by the commision)the people in question politely and clearly explain the provisions to them,preferably with copies of the act,also acording to the commision,it is easily verifiable through a number of relevant European agencies so they have the option of playing ostrich but it will be a financial catastrophe.There is nothing theoretical about the Directive,once again,I stress that before the act came into being as far back as 2004,the European Parliament had actually been announcing that the advent of the directive would give rise to the benefits that member states are playing coy over,The European Parliament advocates this:Marriage certificate,Residence card if applicable and passport,and to call SOLVIT immediately border controls give problems,or in lieu of that make sure that the carriers made a conscious and rational decision to IGNORE or SET ASIDE the provisions then sue them silly,foregone conclusion that you WILL win.

P.S:As long as the requisites above are available.The emphasis THEY placed on that is contagious but moreso capable of instilling a sense of confidence about enforcing your rights in this matters.Operate with the mindset they will whine about it but you have right on your side.

[Dawie]

That's all well and good but the reality is you can wave around a copy of Directive 2004/38/EC, threaten to sue everyone from the airline's CEO to the check-in assistant, yell and scream until you're blue in the face, but all you will achieve is an armed escort out of the terminal building and a missed flight.

[Adel]

Thats strange,is this verifiable because from what I gathered,we have had cases where people had to spend extra time with the authorities debating the finer points but the general trend HAS been to allow entry or even embarkment after some initial friction,the scenario you described sounds fantastic,I must say,they DO make their phone calls,little hurried conversations in hush tones and frown at you but they comply,I am not the only person I am sure who made concerted efforts to verify the efficacy of this law and have even used it,with my spouse without a visa to France,a courteous "please get a Schengen permit next time and that was it"we of course had to wait about 45 minutes but with our little boy in tow,the situation must have seemed ludicrous to them,the law IS clear enough.

[virtual-writer]

http://www.immigrationboards.com/viewtopic.php?t=14981
http://www.immigrationboards.com/viewtopic.php?t=10210

[Fairtrade]

I don't know if the following website might help to answer the question:

http://europa.eu/scadplus/leg/en/lvb/l14007b.htm



"It also proposes to extend the visa exemption to:

Antigua and Barbuda, the Bahamas, Barbados, Mauritius, Saint Kitts and Nevis, and the Seychelles;
persons travelling in the context of local border traffic;
school pupils who reside in a third country;
refugees and stateless persons who reside in a Member State and hold a residence permit issued there;
British citizens who are not British nationals;
members of the armed forces travelling on NATO business".

[Directive/2004/38/EC]

That's all well and good but the reality is you can wave around a copy of Directive 2004/38/EC, threaten to sue everyone from the airline's CEO to the check-in assistant, yell and scream until you're blue in the face, but all you will achieve is an armed escort out of the terminal building and a missed flight.

If you yell and scream, then I agree you will be escorted out, and rightly so.

But I disagree, that Directive 2004/38/EC is only useful in fantasy. There are very specific requirements on national governments, and though they may be slow to implement them, they are doing it.

Directive 2004/38/EC can be very effectively used to remind a national government of their obligations. There are a number of examples on this board of people doing exactly that. You have to be well informed, and firm.

The truth is that most national governments will not move far on their own initiative. They need to be pushed. And people are starting to push.

Airlines are another matter. If they do not understand that you have sufficient documentation, then you will have to explain to them. The laws have changed and low paid airline workers may not know it. But after they have handled 5 or 10 similar cases, the workers will realize it is ok.

If you are really worried about being refused boarding, it may help to ensure that the EU partner has a separate ticket and has already checked baggage on the flight so that it costs a lot of money to deny boarding to the non-EU person (they have to unload the EU bag and possibly delay the flight).

Plus, you can take the airline to small claims court if you are denied boarding and you have the right to travel. If that happens a few times, the airline actually get the message and word will get out to their staff.

[virtual-writer]

A lot of the talk is about airline staff not getting it, how is it with ferries and immigration control in the ports?

[Docterror]

The European Commision has expressly stated its own view of its directive therefore any legal action as a result of infringements is a foregone conclusion in favour of the EU spouse and Non EU family member,apparently prior to the dawning of the directive,there were various petitions and legal questions surrounding why the holders of i.e Belgian EU(family member) residence cards couldnt enter the UK and vice versa and the EU commision held that it is not until Directive 2004/38/EC becomes a legal instrument that this would be possible.I was given casefiles to read up on pertaining to this and can confirm that there was no legal instrument that provided for entry solely on that account.

There is nothing theoretical about the Directive,once again,I stress that before the act came into being as far back as 2004,the European Parliament had actually been announcing that the advent of the directive would give rise to the benefits that member states are playing coy over,The European Parliament advocates this:Marriage certificate,Residence card if applicable and passport

There are a couple of things that should be noted here. The European Parliament can say anything they want, but infact it is they who is acting coy about the whole thing.

While it is true that (4) of Article 5 of the Directive does give an opportunity for the non-EEA visa family member to get entrance to the Member state, there is no guarantee that if the family member tries to repeat it another time he/she can be send back if the first incident has been noted/recorded and can be assessed. Why? Because the way the Directive is written, it is supposed to be the exeption and not the rule. The rule would be to apply for the visa from the embassy before the departure according to Paragraph (2) of the very same article.

If the European Parliament wanted to execute what it was announcing, then the only part of Paragraph (2) that would have been needed should have been-

For the purposes of this Directive, possession of a valid residence card issued by any member state referred to in the Article 10 shall exempt such family members from the visa requirement.

But instead all it says is,

For the purposes of this Directive, possession of the valid residence card refered to in the Article 10 shall exempt such family members from the visa requirement.

Actually, if a member state has already let such a family member in the first time, it should be able to block attempts of subsequent entries by citing (2) of the Article and saying that if the visa was not required every time, then there is no point in having that particular paragraph... and the Directive would support their claim as well.

Again, I am just debating the finer points of the Directive. This should be by no means construed as meaning that your wife or any such family members will be refused entry the second time.

[Dawie]

Guys, don't forget this began as a discussion about Directive Directive 2003/109/EC not about Directive 2004/38/EC. We have gone somewhat off-topic.

[DavidR98]

If they do not allow you on board,they are infringing on your air passenger rights and are therefore liable for litigation,Ignorance of the law is not an excuse especially if (as I was told by the commision)the people in question politely and clearly explain the provisions to them,preferably with copies of the act,also acording to the commision,it is easily verifiable through a number of relevant European agencies so they have the option of playing ostrich but it will be a financial catastrophe.There is nothing theoretical about the Directive,once again,I stress that before the act came into being as far back as 2004,the European Parliament had actually been announcing that the advent of the directive would give rise to the benefits that member states are playing coy over,The European Parliament advocates this:Marriage certificate,Residence card if applicable and passport,and to call SOLVIT immediately border controls give problems,or in lieu of that make sure that the carriers made a conscious and rational decision to IGNORE or SET ASIDE the provisions then sue them silly,foregone conclusion that you WILL win.

Not relevant to Europe, but how broad is this right to sue an airline when boarding is wrongly denied? Denied on the ground of spurious immigration requirements, that is.

Specific example: one of my colleagues resides in the UK but holds a Greek passport. She left for a conference in the USA, and her journey involved changing 'planes in Amsterdam. She was not allowed to board the onward flight from Amsterdam to the USA, because her valid US visa was stamped into an old (expired) passport, which she presented for inspection along with her current passport. The US embassy's website explicitly states that travel is permitted under these circumstances, but she was still sent back to Britain.

The nature of her business meant that the cost to us, and ultimately to the British taxpayer, was many thousands of pounds. It would be nice if KLM could be forced to pay for their mistake, but I am not aware of any way to sue them in the UK for something that happened in Amsterdam.

[Prawo]

Well, sue them in The Netherlands.
Send me an e-mail or pm if you want my assistance.

But are you sure it was KLM that refused boarding and not the US immigration, already present in Amsterdam?

Anyway, this is to be found out after a first letter to KLM.

[babo85]

Regarding the "main" topic about Directive Directive 2003/109/EC.

I am writing to inquire about the status of third-country nationals who are
long-term residents in Europe.

I am a non european citizen who holds an Italian long-term residence status due to have been living legally in Italy since 1995.
According to the Council Directive 2003/109/EC of 25 November 2003 from the European Commission regarding the status of third-country nationals who are long-term residents, I could qualify for residency in other Member States.

Does anyone would you be so kind to provide me with some information regarding the UK residence application(leave to remain)?

I've tried already to contact by email Home Office(UK) and The British Embassy, Rome(IT), but haven't got any reply from them.


-For the commom EU immigration policy the UK and Ireland decide on their involvement on a case-by-case basis (possibility of an 'opt-in').
link: http://ec.europa.eu/justice_home/fsj/im ... tro_en.htm