supporting documents, Schengen visa for EU spouse

[acme4242]

In earlier posts, >here< and >here< I mentioned how the
EU Commission have bent the laws regarding what supporting
documents an EU Embassy may demand.

I find this new requirement, that you must provide proof of
residence and travel arrangements inserted in the
Schengen Visa Handbook, objectionable, because its open to
abuse by Embassies.
What is wrong with simply issuing the visa on the basis that its
to accompany or join the EU spouse, and leave it at that.
If the EU citizens is not accompanying, then the visa is invalid.

3.6. Supporting documents
In order to prove that the applicant has the right to be issued with an entry visa under the
Directive, he must establish that he is a beneficiary of the Directive. This is done by
presenting documents relevant for the purposes of the three questions referred to above, i.e.
proving that:

- there is an EU citizen from whom the visa applicant can derive any rights;

- the visa applicant is a family member (e.g. a marriage certificate, birth certificate,
proof of dependency, serious health grounds, durability of partnerships and his
identity (passport); and

- the visa applicant accompanies or joins an EU citizen (e.g. a proof that the EU
citizen already resides in the host Member State or a confirmation that the EU
citizen will travel to the host Member State).

I wrote a question/complaint to the EU Citizens Signpost,
using the Germany Embassy in Dublin as an example of such abuse,
who demand (ESB bill, telephone bill, gas bill, bank statement, rent book,
lease agreement etc.) Proof of accommodation in Germany, Return
Tickets etc etc. see Germany Embassy demands here

Here are the exchanges with the EU Citizens signpost service.

thank you, If I may, I wish to seek further clarification about legality
and compatibility of the German Embassy(Dublin)
document requirements in light of EU law and Commission guidelines.
And this newly added document requirement to display proof
that the EU citizen already resides in the host Member State or a
confirmation that the EU citizen will travel to the host Member State.
http://http://www.dublin.diplo.de/conte ... se_NEU.pdf

While the essential benefits of free movement deriving from the Directive
are provided to those that are accompanying or joining the EU citizen.
Until now, this aspect of accompanying or joining has never been something
you had to prove by supporting documentation prior to actual travel.
And how can this proof be achieved ? its a open ended demand.
It starts with demands for travel tickets, proof of accommodation
invitation letters then escalates to demands for Electricity bills,
telephone bills, gas bills, bank statements, rent books, lease agreement
etc etc etc.. It becomes unreasonable.

The ECJ said in the opinion of ADVOCATE GENERAL STIX-HACKL that
"It is therefore apparent from the provisions of the directives on the
entry of members of the family, as interpreted by the Court, that entry
formalities must be restricted to the expressly specified documents and that any
further immigration procedure is not permissible.
i.e. passports and a document issued by the competent authority of the State
of origin or the State whence they came, proving their relationship."

I depend on the organs of the EU to maintain my right as an EU citizen to
free travel. I fear this new measure in the Handbook from the EU commission
will restrict my travel rights, as it seems to justify unreasonable open
ended demands.
And furthermore, it is my view that in this day and age of cheap
disposable e-tickets that such demands to present travel tickets to
obtain EU visas actually adds nothing to the whole process except an
annoyance and restriction on genuine families like my own.

Anyway, getting back to the question in hand, and the main point of this enquiry,
Are the German Embassy(Dublin) demands lawful and compatiable with the
latest Directive guidelines and handbook instructions ?
http://http://www.dublin.diplo.de/conte ... se_NEU.pdf

and here is their waffle reply, supporting the German absurd demands.

Thank you again for your enquiry.

I think it might be helpful if I elaborate on the application of EU law in contrast with the application of domestic law.

EU Treaty Rights can only be invoked if you actually exercise one of your EU rights. For example, if you live in a host Member State – for example you are Irish and you live in France – your non-EU (third country) spouse or registered partner has a right to join you and has a right of residence in France under EU Directive 2004/38 (EU Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States). However, if you are Irish and living in Ireland and you want your non-EU spouse to join you in Ireland then you have no rights under EU Directive 2004/38 as your case if purely governed by Irish domestic immigration law as you have not invoked, exercised or activated any EU rights at all. The same for example is true of the free movement of goods – you cannot as an Irish producer selling goods solely in Ireland rely on EU law as you have not activated any EU law – it would be purely Irish domestic law that would govern your situation. This would be different if you are an Irish producer selling your goods in Spain or any EU Member State as you have activated your rights under EU law to free movement of goods in the EU.

Getting back to your question – if the German Embassy is processing an application and the applicant is relying on rights under EU law, the Embassy would be entitled to confirm that the EU national has actually exercised their EU rights – be it the right to travel or the right to enter or the right to reside or the right to study in another EU Member State. If the EU national has not exercised their rights, then the third country national can certainly not invoke rights under an EU Directive. In your case the rights that you have as an EU citizen under, in this case Directive 2004/38, must have been invoked by you. Therefore the Embassy would be entitled to be satisfied that you have activated your EU Rights by travelling to or living in another EU Member State (other than your home country).

I refer again to what I mentioned in my original response with regard to visas. For non-EU nationals accompanying or joining the EU national certain privileges apply with regard to the processing of a visa application (accelerated procedure and issued free of charge). If the non-EU national is not accompanying or joining the EU national, then normal visa rules apply. This is another reason why the German Embassy would be justified in satisfying itself that the applicant is accompanying or joining the EU national and that the EU national has activated their EU Rights so that the EU Directive applies in the case and not normal visa processing rules.

I wish to point out one other aspect that is explicit in Directive 2004/38 regarding the right of residence of family members of a Union citizen who are not nationals of a Member. According to Article 10 of the Directive (with regard to issuing the residence card to third country nationals) it is specified thatâ€