Cat. D-Schengen visa for EU-spouse before residence card?

[MSH]

My third-country spouse and I applied for a residence card in Denmark in december 2010 for her based on community law (Carpenter-ruling) but was turned down in april. She had her passport stamped with a one-month deadline to leave by the Foreign Service.

We appealed this decision to the Ministry of Integration and recieved a letter stating my wife was permitted to stay in Denmark until the ministry had made their decision.

My wife became pregnant during this long process and have not been allowed any type of medical or pre-natal assistance in Denmark since she does not hold a residence permit.

This promted us to move across the border to Sweden in the beginning of may. I registered with the Swedish authorities and when they had issued me with a social security number we could finally go to the Swedish migrant office and apply for a residence card for an EU-spouse for my wife.

While we were there I asked the case worker who took our application if they could issue my wife with a cat. D Schengen visa since we were planning to go to Brazil to have our baby there where my wife have relatives (she's NOT a brazilian citizen, she's African).

The case worker said they didn't issue visas of this type.

Now, we have not been issued a residence card from Sweden yet and the only proof we have that my wife is legally in Schengen after the expiration of her initial Schengen visa is a receipt in Swedish stating she has applied for a residence card as the spouse of an EU-citizen.

LONG STORY, but the question is:

Will we run into problems when we're leaving Schengen again for Brazil? What options do I have when dealing with some ignorant border guard in Frankfurt airport who doesn't read Swedish?

Any ideas will be deeply appreciated...

[acme4242]

You would think there would be something more formal in place
in the Directive to allow travel during the possible 6 months period
between applying for a 2004/38/EC Art 10 resident card, and issuance.

Anyways...
The Visa Code and the Handbook has a bit about
extending Visas,

Maybe its not your case worked who has the Visa stickers,
but someone in Sweden has them, for just this occasion.
Your entitled to apply for visa extension, within Sweden.
so you can leave and come back without hassle.

If I'm correct, the Sweds are obliged to extend the visa, even the initial visa was not issued in Sweden.

Schengen Visa Code
http://eur-lex.europa.eu/LexUriServ/Lex ... 058:EN:PDF

CHAPTER V
Modification of an issued visa
Article 33
Extension
1. The period of validity and/or the duration of stay of an
issued visa shall be extended where the competent authority of
a Member State considers that a visa holder has provided proof
of force majeure or humanitarian reasons preventing him from
leaving the territory of the Member States before the expiry of
the period of validity of or the duration of stay authorised by
the visa. Such an extension shall be granted free of charge.
2. The period of validity and/or the duration of stay of an
issued visa may be extended if the visa holder provides proof of
serious personal reasons justifying the extension of the period
of validity or the duration of stay. A fee of EUR 30 shall be
charged for such an extension.
3. Unless otherwise decided by the authority extending the
visa, the territorial validity of the extended visa shall remain the
same as that of the original visa.
4. The authority competent to extend the visa shall be that
of the Member State on whose territory the third-country
national is present at the moment of applying for an extension.
5. Member States shall notify to the Commission the
authorities competent for extending visas.
6. Extension of visas shall take the form of a visa sticker.
7. Information on an extended visa shall be entered into the
VIS in accordance with Article 14 of the VIS Regulation.

Handbook
http://ec.europa.eu/home-affairs/polici ... 620_en.pdf

PART V: MODIFICATION OF ISSUED VISAS
1. EXTENSION OF AN ISSUED VISA
Legal basis: Visa Code, Article 33
In case a visa holder who is already present on the territory of the Member States is unable to
leave before the expiry of his visa for reasons of force majeure, humanitarian reasons or
serious personal reasons, he should address the request for extension of the visa to the
competent authorities of the Member State where he is present even if that is not the Member
State whose consulate issued the visa.
Under certain circumstances the authorities of the Member State concerned are obliged to
extend the visa (point 1.1) and in other cases they may decide to extend the visa (point 1.2).

[MSH]

Acme:

thanks for the links, I really appreciate it

We're leaving wednesday morning though, so it's not possible to go back and argue with the Swedish authorities, unfortunately.

It IS actually very strange that Directive 2004/38 allows the member states up to 6 months to issue a residence card for 3rd country relatives of EU-citizens and expect them to be de facto prisoners until the card is actually issued..

We'll just have to go and hope the residence card is issued soon and then have it sent to us in Brazil.

Thanks a million for the quick reply, Acme!

Sincerely,

MSH.

[Directive/2004/38/EC]

I think you are lucky in all sorts of different ways.

(1) You wife is Brazilian so there is no visa requirement in any case (so Frankfurt should be fine)
(2) You are married and so can take advantage of http://eumovement.wordpress.com/2010/08 ... to-travel/
(3) The whole baby thing!

One morning I had a few hours to kill in a German airport. So I ended up chatted (for more than 1/2 hour) with the border guards about visa requirement for my wife (who is from a visa required country). They said that she required NO visa if she was traveling with me. They were very clear. They advised me to carry my marriage certificate though. (This is of course different advice than you would get from the visa-focused Germany embassy, but then they work in a different departments!)

[MSH]

Hello again,

writing from Brazil, so we obviously made it..

My wife (who is from a visa-required country in West-Africa) and I went over to the german border guard in Franfurt airport, I put down our passports and said 'this is my wife, do you need to see a marriage certificate?'

He checked her passport very thouroughly and took our marriage cert and checked that too. Then he asked for her residence card. I explained him it's not been issued yet. He then asked for documents proving our residence in Sweden, I produced the receipt from the Swedish immigration authorities and my Swedish registration of adress. Obviously this guy had no clue what they read.

The guard said 'wait a sec' and picked up the phone and called his supervisor. He probably thought I didn't speak german but his conversation went something like this:

'Hello, question: Husband from Denmark, wife from West-Africa, no residence card but they live in Sweden.. I'm holding some type of shit-paper (literally 'sheiss-papieren') in Swedish I can't read?

OK, so I guess it's just 'happy journey!' then.. thank you.'

And then he stamped my wife's passport and wished us a good trip

I did not have to produce the print-outs from the Schengen border guard handbook or Directive 2004/38 I brought and I have to admit the guard acted in a very professional and courteous manner.

Regards,

MSH.

[Directive/2004/38/EC]

I think you will now be a lot more comfortable with your return flight through Germany. Just a little (baby) sleep deprived... :-)

And then he stamped my wife's passport and wished us a good trip :)

Just to be clear. This was on the Schengen EXIT control before you flew to Brazil?

I did not have to produce the print-outs from the Schengen border guard handbook or Directive 2004/38 I brought and I have to admit the guard acted in a very professional and courteous manner.

For the most part I agree the German guards are very professional and well trained.

[MSH]

@directive:

Yes, EXIT control.

We're now waiting for the Swedish residence card to be issued and then we will have to have it sent over to us here in Brazil so there hopefullly won't be any reason for concern when returning.

MSH.

[Directive/2004/38/EC]

You COULD also apply for a new Schengen visa for entry to Sweeden. But I guess you will have some time to wait in any case (for baby) and then for baby's passport.

In what form/format is the Sweedish residence card?

[Obie]

It is great to hear about your success with the German authorities.
I wish you all the best with your wife's birth, and i hope you enjoy your time in Brazil.

The Danish Immigration service are really funny. They have imposed condition of lawful residence before residency can be issued under Carpenter ruling, in clear breach of Metock and Carpenter itself, as Mrs Carpenter was not lawfully resident in the UK during the time of her application.

I wonder if those conditions they stipulate were required in the ruling of Carpenter, whether Mrs Carpenter would have qualified for residency.

I believe once the baby is born and the child acquires Danish Citizenship, together with the residence in Sweden she will qualify.

Please make sure all you shopping receipts, utility bills are kept, as it appears the Danes authority requires this in Surinder Singh cases, although i think this is unlawful anyway. Hopefully she may even qualify under Zambrano.

I wish you all the best.

[MSH]

Thanks Obie!

Yes, the Danish ultra-right wing government have deliberately mis-interpreted Carpenter for a decade. I am currently preparing a lawsuit against them with the help of an anti-dearly beloved organisation with experienced lawyers working pro bono.. eventually it will hopefully be brought before the Court of the European Union so the Danes will begin to respect community law. The gross violation of both my wife's, my unborn child's and my own human rights in the denial of free medical assistance WHICH WE ARE FULLY ENTITLED TO will also be a point raised in court.

We are only returning to Europe for a short stint after the birth of our child for me to wrap up everything there and then we're moving back here to Brazil to stay permanently. Denmark is a dearly beloved pisshole and I wouldn't wish it on my worst enemy to rot in that nazi-infested rat's nest...

About Zambrano, yes my wife qualifies but Denmark has decided to wait with implementing the ruling until such a time when a Danish citizen have managed to bring it before the CEU and the Court ONCE AGAIN WILL HAVE TO REITIRATE THE RIGHTS OF UNION CITIZENS TO REMAIN IN THEIR OWN COUNTRY.

Why anybody would ever want to live there is beyond me and I'm DANISH, haha.

[mastermind]

It is unbelievable how much power the bureaucracy has to harass people, even their own citizens.

Funny how I recently watched some of The Killing (a US TV series based on the Danish one, see http://en.wikipedia.org/wiki/The_Killin ... TV_series) ), then I was curios what the original looks like and watched some of it too ("Forbrydelsen", see http://en.wikipedia.org/wiki/The_Killin ... TV_series) ).

I could not help noticing the stark difference in something: the POLICE POWERS. While in the US the police always STRUGGLES to convince the court to get a warrant to search a place or tap a phone, in Denmark the police boss just orders his subordinates around: "tap all his/her phones, search all places/houses" etc.

I realize that it is just TV but still it must reflect the state of affairs more or less.

Europe is ruled by statists/leftists. (of course the degree of this is different in different countries). Human rights and privacy are inferior to the operation of "authorities".

[Directive/2004/38/EC]

I realize that it is just TV but still it must reflect the state of affairs more or less.

I think we must watch very different TV programs!

Europe is ruled by statists/leftists. (of course the degree of this is different in different countries). Human rights and privacy are inferior to the operation of "authorities".

This depends a lot on the country. In Germany, which in both East and West has a very notorious history (from WWII to 1990), there are very strict curbs on listening in on phone calls.

It would be interesting to see a Europe wide map which shows wiretaps per capita...

[mastermind]

I realize that it is just TV but still it must reflect the state of affairs more or less.

I think we must watch very different TV programs!

Well, most of what's on TV is rubbish of course (everywhere) , but there are some good quality material like those series mentioned above.

Europe is ruled by statists/leftists. (of course the degree of this is different in different countries). Human rights and privacy are inferior to the operation of "authorities".

This depends a lot on the country. In Germany, which in both East and West has a very notorious history (from WWII to 1990), there are very strict curbs on listening in on phone calls.

Sure, there are differences. Germany tried hard in the last few decades to turn around away from its notorious past. But still some of the remnants of it's totalitarian/fascist past (Eastern Germany being essentially a Soviet colony for decades did not help either) are still there. For example the amount of data the state collects about it's citizens/residents and citizens' obligation to provide this data. Everyone in Germany not only have to have an Ausweis (ID card) but also have to report their address promptly. It is probably the only country in the EU with such a requirement for it's own citizens. I guess if UK legislators for example tried to implement something like this there would be a riot.

It would be interesting to see a Europe wide map which shows wiretaps per capita...

Indeed, it would be interesting.