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  1. #1
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    Default 2004/38/EC - EEA Free Movement Regulations

    My wife has a Belgium EU residence card, we are considering visiting the UK for a month. As a Thai she needs a visa, and under 2004/38 her residence card is a visa equivalent.
    It use to be that the UK didn't follow the EU law and you needed apply for a visa. So we never visited the UK, too much hassle. I see that the new wording says you only need the EEA Family permit for long term stays.

    http://www.ukba.homeoffice.gov.uk/eu...sponsibilites/

    "If your family members are not EEA or Swiss nationals and they are coming to live with you permanently or on a long-term basis, they will need to apply for an EEA family permit before coming to the UK"

    So has the UK changed it's tune finally? I know there was enforcement action taken in 2008, but I cannot find what happened as a result.
    Last edited by Tobias; 26th Jul 2010 at 19:35. Reason: Edited title for clarity.

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    DonaldAnd,
    I just visited the UK with my wife (Also Thai resident in Belgium), using her EU residence card as a visa equivalent. No problems, they are now applying 2004/38 properly. Just in case I took a wedding certificate with me to prove she is my wife, and my EU residence permit to prove I am able to use EU law despite being English. (As a non UK citizen, EU law applies when you go to the UK, but it only applies to Brits if they have used their EU rights of free movement in another EU state).
    They sent me to an office where our paperwork was checked and the stamp given in her passport, but they did apply the law correctly and let us through with only a small delay of 15 minutes or less.
    An entry office said there was something wrong with our paperwork, I said 'I don't think so', she said 'no visa', I said 'her EU residence card is a visa equivalent', they consulted the BCPI expert as per their process chart, she checked the paperwork, and issued a stamp.

    I will always cross the border that way now, as its an EU right of free movement, rather than a courtesy of the UK.

    And of course the same applies in reverse, when Brits visit Europe their wives need a visa, but a UK issued residence permit (which can be a stamp in a passport) is a visa equivalent for short stays for family members of EU citizens.

    ---------- Post added at 10:04 ---------- Previous post was at 09:53 ----------

    Just to confirm that from the French embassy site.
    http://www.ambafrance-uk.org/Visa-we...il_sommaire_13

    CHANGES TO THE LEGISLATION: FAO family members of EU nationals:

    Married spouses and children under the age of 21 or dependant of EU nationals are exempted from obtaining a Schengen visa to travel to France if they hold:
    a valid travel document, i.e. passport;
    a valid UK residence permit with the endorsement "family member of EEA national";
    and if they are joining or travelling with the EU national.
    However if they do not satisfy the above conditions, they need to apply for a visa to travel to France (for instance if their UK residency does not state those exact words/ the EU national is not travelling).
    Caution:
    This exemption only apply to married spouses/ children under the age of 21 or dependant, i.e. not to parents - for further information and procedure to apply for a visa as the family member of an EU citizen, click here (…) nor to unmarried partners, civil partners - for further information and procedure to apply for a short stay Schengen visa, click here (…)
    Family members of French Nationals are not included in this legislation and still require visas to travel to France. Click here to apply for a visa as the family member of a French citizen, click here (…)
    Last edited by NigelApple; 26th Jul 2010 at 10:55. Reason: Changed confusing wording

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    Quote Originally Posted by NigelApple View Post
    ... And of course the same applies in reverse, when Brits visit Europe their wives need a visa, but a UK issued residence permit (which can be a stamp in a passport) is a visa equivalent for short stays for family members of EU citizens.
    Provided the UK residence permit is endorsed "family member of EEA national" and the non-EEA family member is either joining or travelling with the EEA national.

    ---------- Post added at 11:30 ---------- Previous post was at 11:15 ----------

    Quote Originally Posted by DonaldAnd View Post
    My wife has a Belgium EU residence card, we are considering visiting the UK for a month.
    What is your nationality? Does her residence permit state that she is the family member of an EEA citizen?
    Tobias - โทเบียส
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    Am I misunderstanding something here? Forget the bit about a Brit having an EU residence permit.......too complicated....... but if I'm reading this correctly a Belgian national for example could bring his wife for a short stay here without a visa if she has an EU residence permit? If the same applies in reverse, does that mean that once the wife of a UK national obtains ILR, she doesn't need a Schengen visa? From memory, the ILR visa stamp states something being allowed to reside in the UK so surely that's a residence permit?

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    Quote Originally Posted by Tobias View Post
    Provided the UK residence permit is endorsed "family member of EEA national" and the non-EEA family member is either joining or travelling with the EEA national.
    ---------- Post added at 11:30 ---------- Previous post was at 11:15 ----------

    What is your nationality? Does her residence permit state that she is the family member of an EEA citizen?
    I am British, I am entitled to use EU law because I have used my EU rights in another EEA country. Search Surinda Singh, I took my EU permit as proof.

    Her right stems from her being a family member of an EEA citizen (ECJ ruled this). The stamp is just evidence of that, I took my marriage certificate as evidence. I am not sure what her permit says since it is written in dutch. Yes the French site says that, but keep in mind they want proof of family membership, and the right stems from being a family member not the stamp.
    Last edited by Lee; 26th Jul 2010 at 22:35. Reason: shorten quote

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    Quote Originally Posted by Flip View Post
    Am I misunderstanding something here? Forget the bit about a Brit having an EU residence permit.......too complicated....... but if I'm reading this correctly a Belgian national for example could bring his wife for a short stay here without a visa if she has an EU residence permit? If the same applies in reverse, does that mean that once the wife of a UK national obtains ILR, she doesn't need a Schengen visa? From memory, the ILR visa stamp states something being allowed to reside in the UK so surely that's a residence permit?
    The wording is.
    "2. Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement."

    And ECJ ruled that EU right is given directly by virtue of having a status, and NOT by virtue of the paperwork they give you. This is reflected in Article 25 (below).

    "Article 25
    General provisions concerning residence documents
    1. Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality,
    as entitlement to rights may be attested by any other means of proof."

    The French border systems *requests* as proof of residence a residence card, and as proof of family member ship a stamp saying 'family member of eea citizen'. And the law says any equivalent of these is also valid.

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    Quote Originally Posted by NigelApple View Post
    I am British, I am entitled to use EU law because I have used my EU rights in another EEA country. .
    I appreciate that, you stated as much in your first post. However, my question was not directed at you.

    The part of my response that was directed at you was in relation to where you stated (in your first post) that:

    ... And of course the same applies in reverse, when Brits visit Europe their wives need a visa, but a UK issued residence permit (which can be a stamp in a passport) is a visa equivalent for short stays for family members of EU citizens.
    A UK residence permit will only be recognised for this purpose if it is endorsed "family member of EEA national" and the non-EEA family member is either joining or travelling with the EEA national. Let's not please confuse the two separate issues. A visa national who arrives in the UK on a settlement visa will typicaky have the words "residence permit" in their passport - unless the words "family member of EEA national" are endorsed on that permit a Schengen Visa will be required for travel to a Schengen state.
    Tobias - โทเบียส
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    Quote Originally Posted by Tobias View Post
    Let's not please confuse the two separate issues. A visa national who arrives in the UK on a settlement visa will typicaky have the words "residence permit" in their passport - unless the words "family member of EEA national" are endorsed on that permit a Schengen Visa will be required for travel to a Schengen state.
    That's just not true. What's your basis in law for saying that?
    Last edited by Tobias; 26th Jul 2010 at 16:11. Reason: BBCode error

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    It is true, I'm afraid I do not have the time to give chapter and verse. Use the forum search facility and you will find your answer.
    Tobias - โทเบียส
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    For the sake of completeness I should also mention that visa nationals living in the Republic of Ireland who have a settlement visa or residence permit issued under the Irish Immigration Rules also require a Schengen Visa to travel to a Schengen state.
    Tobias - โทเบียส
    It’s better to be 6 feet apart than to be 6 feet under.

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    Whilst I can understand where you're coming from, your assertion is not strictly true. The Directive states that a family member should not be refused entry to another EEA state simply for lack of a visa where the claimed relationship can otherwise be demonstrated.

    This is reflected in the UK regulations at 11(4):-

    http://www.opsi.gov.uk/si/si2006/20061003.htm#11

    Consequently, the Thai spouse of a British citizen, present in the UK under the provisions of the Immigrations Rules might be best advised to obtain a visa to visit other EEA countries with the partner, but it is not "required".

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    If you're interested in the legalities of it:

    Firstly, the obvious, EU law trumps national law in this area. Free movement is a core competence of the EU, and ECJ caselaw reflects this. e.g. the latest example being Metock c-127/08

    The Community legislature has competence to regulate, as it did by Directive 2004/38 on the right of citizens of the Union and their family member...
    Then there's the claimed legal implementation which is patchy, e.g. see 2.1.1 in the following report for the EU parliament:

    http://www.ceps.eu/files/book/1827.pdf

    In that document they point to Italy and Czech Republic requiring a visa according to their laws. But we've been to both (Flying Norway to Italy for example) and neither passport check raised an eyebrow with her passport + residence card. Not even a 10 second delay. So the actual border crossing process is relatively good, even if the consulate websites pretend there are all kinds of non existent hurdles.

    With France, we were stopped at a random stop inside the border (Schengen doesn't have a border, so they do 'random' checks on the roads from the border inside the country instead). We'd forgotten the residents card, as proof of EEA spouse, we pointed to the wording of an old UK visa 'EEA Family Permit', good enough.... so much for needing a particular stamp with exact wording.

    We crossed the Spanish border on nothing more than a Belgium tolerance paper! (A paper saying, we're processing her paperwork right now).

    The right a family member has, stems from them being a family member, not the particular stamp a country issues, e.g. BRAX C459/99, Roux C-363/89 and so on:

    As the Court has stated on several occasions, issue of a residence permit to a national of a Member State (see, in particular, Case C-363/89 Roux [1991] ECR I-273, paragraph 12) is to be regarded not as a measure giving rise to rights but as a measure by a Member State serving to prove the individual position of a national of another Member State with regard to provisions of Community law.
    Where the notable problem was, was the UK, but the border seems to be much better now, from my own tests of this, the guards did their job, in a straight-forward professional manner issuing the stamp without causing delay and as a result the corresponding borders in the EU to the UK, seem to be more open about the right. The French mention of the right being typical, even if they say they want a particular stamp with a particular wording, it still is an admission there is a right.

    As I said, ECJ rulings are applicable to Nations, ECJ ruling means equivalent proof is valid, so the 'you can only enter if your stamps says exactly this and nothing else', is not the law as applicable *now* to France. And 'joining' doesn't mean anything much, as Metock case put it:

    therefore, in the light of the necessity of not interpreting the provisions of Directive 2004/38 restrictively and not depriving them of their
    effectiveness, the words ‘family members [of Union citizens] who
    accompany … them’ in Article 3(1) of that directive must be interpreted
    as referring both to the family members of a Union citizen who entered
    the host Member State with him and to those who reside with him in that
    Member State, without it being necessary, in the latter case, to
    distinguish according to whether the nationals of non-member countries
    entered that Member State BEFORE OR AFTER the Union citizen or BEFORE OR AFTER becoming his family members.
    If you're interested in other case law,
    Jipa C-33/07 on whether a person can be barred from a country.
    Huber C524/06 on whether special databases can track foreigners.

    And a bunch of others on various aspects:

    C-085/96, M. Martinez Sala
    C-378/97, Wijsenbeek
    C-224/98, D' Hoop
    C-184/99, Grzelczyk
    C-413/99, Baumbast
    C-459/99, BRAX
    C-060/00, Mary Carpenter
    C-100/01, Olazabal
    C- 109/01, Akrich
    C-482/01 en C-493/01, Orfanopoulos en Oliveri
    C-138/02, Collins
    C-200/02, Man Lavette Chen
    C-456/02, Michel Trojani
    C-157/03, Commissie tegen Spanje
    C-209/03, Dany Bidar
    C-215/03, Salah Oulane
    C-300/04, Eman en Sevinger

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    Nigel, many thanks for the detailed post. I'm very familiar with the law, indeed I have offered several Opinions on those very matters and appeared (successfully) at an Immigration Appeal on this very subject.

    I want to deal with one aspect only, and that is the issue I first I referred to in your opening post in this topic.

    Quote Originally Posted by NigelApple View Post
    ... And of course the same applies in reverse, when Brits visit Europe their wives need a visa, but a UK issued residence permit (which can be a stamp in a passport) is a visa equivalent for short stays for family members of EU citizens.
    I don't want our members here getting themselves all worked up and excited about this issue. At present the reality is, for those spouses who have arrived in the UK via the UK Immigration Rules, they should obtain a free Schengen Visa to visit any Schengen State.

    Notwithstanding the case law you have referred to, a Schengen Visa is still stipulated as a requirement for those who are resident in the UK under the Immigration Rules. Of course those who are resident here under EU law are not required to obtain a Schengen Visa for travel to a Schengen State.

    Whilst it would be a brave Immigration Officer who refused entry to the family member of an EEA citizen, the fact remains that such a visa is still a stipulated requirement. In any event you must convince the check-in agent that the passenger has the 'correct' documentation to travel. Much easier having the Schengen Visa than being delayed (either at check-in or on arrival in Schengenland).

    I will not be entering in to a debate on this matter, I do not have the time as I am preparing to leave on a business trip very shortly. In any event we have discussed this very issue in detail in other topics and I do not have the inclination to do so again now.

    From a personal point of view, it's about time the politicians pulled their fingers out and resolved this nonsense once and for all. Any individual (not just family members of EEA citizens) who has a right of residence in an EEA state should be allowed to visit any other EEA state without the need for any additional visa or other corroborative proof of relationship.
    Tobias - โทเบียส
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    Nigel
    My wife has a french residence card and when we travel she uses her card instead of a schengen visa. However when we visit the UK she uses a uk visit visa 10 year multi entry not because its needed but because it saves arguments at airports borders etc. On the French side we travel extensively in the border region with Switerland and Germany and have not seen a checkpoint other than Douane in 6 years.

    Tobias is absolutely correct its about time the politicians regularised this situation because I am sure the treaty was intended for all EU citizens and their families.

    ash
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    Well look, there's a definitive test possible here. A daytrip to France on the ferry with nothing but ILR and proof of family relationship. I see P&O have a day trip for 16 euros a person currently.
    You're in for a pleasant day shopping in France from my experience.

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    Quote Originally Posted by NigelApple View Post
    Well look, there's a definitive test possible here. A daytrip to France on the ferry with nothing but ILR and proof of family relationship...
    What about a travel document?
    Tobias - โทเบียส
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    ... it's about time the politicians pulled their fingers out and resolved this nonsense once and for all. Any individual (not just family members of EEA citizens) who has a right of residence in an EEA state should be allowed to visit any other EEA state without the need for any additional visa or other corroborative proof of relationship.
    Is there a good reason why they don't? I don't understand what this rule actually achieves apart from create jobs for Euro Civil Servants. Hopefully the new Government cuts will eliminate this rubbish and jobs for the boys.

    colin244
    Last edited by Tobias; 27th Jul 2010 at 20:34. Reason: Corrected BBCode

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    It looks like I've missed out part of a sentence, I've corrected it below

    Quote Originally Posted by Tobias View Post
    From a personal point of view, it's about time the politicians pulled their fingers out and resolved this nonsense once and for all. I'd be happy to allow any individual who has a right of residence in an EEA state (not just the family members of EEA citizens) to be allowed to visit any other EEA state without the need for any additional visa or other corroborative proof of relationship.
    The above quote is a statement of what I'd like to see, not a statement of law!
    Tobias - โทเบียส
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    Quote Originally Posted by NigelApple View Post
    Well look, there's a definitive test possible here. A daytrip to France on the ferry with nothing but ILR and proof of family relationship. I see P&O have a day trip for 16 euros a person currently.
    You're in for a pleasant day shopping in France from my experience.
    Let's say someone was prepared to test it and there was a flight involved.........................who would be responsible for the costs if you missed your flight in all the kerfuffle?

    If its correct, the UKBA couldn't really say you should have turned up in time to have your documents checked if it turned out you didn't actually need a document in the first place...........could they?

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    The problem is that airlines and ferry companies would probably not allow you to board for fear of you being denied entry and then they would face a big fine.

    The only way to really test the Immigration would be to drive directly into Schengenland, which is now very difficult to do.

    As a matter of interest my wife and I did exactly that before Switzerland joined Schengenland. At the time an SV in thai passport was enough to enter into Switzerland then we hired a car and drove into France. I was all set to argue with them that my wife was a family member of EEA citizen, ie me, and had marriage certificate to prove it......alas, the border was not manned so we just kept on driving.

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