Comments on: Directive 2004/38/EC http://eumovement.wordpress.com the ins and the outs of this work in progress (including Directive 2004/38/EC) Mon, 02 Nov 2009 14:29:50 +0000 http://wordpress.com/ hourly 1 By: Yannis http://eumovement.wordpress.com/directive-200438ec/#comment-4597 Yannis Thu, 22 Oct 2009 07:46:41 +0000 http://eumovement.wordpress.com/directive-200438ec/#comment-4597 As far as I am aware the UK implements article 5 (2) of the Directive 2004/38/EC and you will not have any problem entering the country. What you must worry is if the airline refuses to take you due to their ignorance! You better make sure and clear it with them. I had this problem travelling to France…. But I had a letter from the French Embassy stating clearly that my wife can travel there WITHOUT a Schegen Visa! Article 5 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. [b]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.[/b] Member States shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure. It is also clear in the UKborder agency site under Family Permits: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/ecis/chapter3.pdf?view=Binary Read 1.2 General Information The Free Movement of Persons Directive (2004/38/EC) came into force on 30 April 2006. It repeals 9 Directives and amends 1 Regulation as well as including various ECJ caselaw (such as Baumbast and Bouchereau). The Directive is transposed into UK legislation via the Immigration (EEA) Regulations 2006, which replace the Immigration (EEA) Regulations 2000. Regulation 11(2) of the Immigration (EEA) Regulations 2006 requires non-EEA national family members of EEA nationals to hold EEA family permits when they enter the UK, [b]unless they have already obtained a residence card or a permanent residence card. [/b] N.B. If they have a valid UK residence card they do not have to obtain a Family Permit each time they leave/enter the UK. [b]Before an Immigration Officer refuses admission to a non-EEA national under regulation 11(2) because s/he does not produce an EEA family permit, the IO must give the non-EEA national reasonable opportunity to provide by other means proof that s/he is a family member of an EEA national with a right to accompany that national or join him/her in the UK.[/b] As far as I am aware the UK implements article 5 (2) of the Directive 2004/38/EC and you will not have any problem entering the country.

What you must worry is if the airline refuses to take you due to their ignorance! You better make sure and clear it with them.

I had this problem travelling to France…. But I had a letter from the French Embassy stating clearly that my wife can travel there WITHOUT a Schegen Visa!

Article 5

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. [b]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.[/b]

Member States shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.

It is also clear in the UKborder agency site under Family Permits:

http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/ecis/chapter3.pdf?view=Binary

Read 1.2 General Information

The Free Movement of Persons Directive (2004/38/EC) came into force on 30 April 2006. It repeals 9 Directives and amends 1 Regulation as well as including various ECJ caselaw (such as Baumbast and Bouchereau).

The Directive is transposed into UK legislation via the Immigration (EEA) Regulations 2006, which replace the Immigration (EEA) Regulations 2000.

Regulation 11(2) of the Immigration (EEA) Regulations 2006 requires non-EEA national family members of EEA nationals to hold EEA family permits when they enter the UK, [b]unless they have already obtained a residence card or a permanent residence card. [/b]

N.B. If they have a valid UK residence card they do not have to obtain a Family Permit each time they leave/enter the UK.

[b]Before an Immigration Officer refuses admission to a non-EEA national under regulation 11(2) because s/he does not produce an EEA family permit, the IO must give the non-EEA national reasonable opportunity to provide by other means proof that s/he is a family member of an EEA national with a right to accompany that national or join him/her in the UK.[/b]

]]> By: Ender http://eumovement.wordpress.com/directive-200438ec/#comment-4579 Ender Thu, 15 Oct 2009 12:52:25 +0000 http://eumovement.wordpress.com/directive-200438ec/#comment-4579 Hi all. Everybody asked something but nobody answered with exprience. I am non-eea family member. My wife is romanian. I have residence card for family members (they gave it to me after we got married in Romania). With this card whe have been in bulgaria,hungary,austria,italy. Nobody asked us "do you have visa". Nobody said us "you cannot enter". I just shown my passport and my residence card for family members. And i passed to borders without visa. They only cared if my wife is with me. She was always with me. Only 1 time they asked me "what will you do".. I think it was out of record question just to talk. They were always nice. We will go to London, UK in december for 1 week holiday. I will not applicate for any kind of visa. We will get on plane and we will land to London. I am almost sure that i will fac problems with border officers. If somehow they refuse me my wife will call europan council telephones and some help lines. I am very curios what they will write to document (that they have to write why they refused).And what will they say? I will have marriage certificate, hotel reservation and enough money. But most important is i will have my wife. Will they restrict my wife's free movement rights enter to UK? I will be very happy to share my expriences here. I will suit them , my wife will applicate to european court if they refuse us. Just wait me:) Good luck to everyone. Hi all.

Everybody asked something but nobody answered with exprience.
I am non-eea family member. My wife is romanian. I have residence card for family members (they gave it to me after we got married in Romania).
With this card whe have been in bulgaria,hungary,austria,italy. Nobody asked us “do you have visa”. Nobody said us “you cannot enter”. I just shown my passport and my residence card for family members. And i passed to borders without visa.
They only cared if my wife is with me. She was always with me. Only 1 time they asked me “what will you do”.. I think it was out of record question just to talk. They were always nice.

We will go to London, UK in december for 1 week holiday. I will not applicate for any kind of visa. We will get on plane and we will land to London.
I am almost sure that i will fac problems with border officers. If somehow they refuse me my wife will call europan council telephones and some help lines.
I am very curios what they will write to document (that they have to write why they refused).And what will they say? I will have marriage certificate, hotel reservation and enough money. But most important is i will have my wife. Will they restrict my wife’s free movement rights enter to UK?

I will be very happy to share my expriences here. I will suit them , my wife will applicate to european court if they refuse us. Just wait me:)

Good luck to everyone.

]]> By: eumovement http://eumovement.wordpress.com/directive-200438ec/#comment-4577 eumovement Wed, 14 Oct 2009 13:45:30 +0000 http://eumovement.wordpress.com/directive-200438ec/#comment-4577 The day you got your residence card is not important. If you were both in the UK when you married, it is five years from that date. Otherwise it is 5 years from when you entered the UK. The day you got your residence card is not important. If you were both in the UK when you married, it is five years from that date. Otherwise it is 5 years from when you entered the UK.

]]> By: ahmed http://eumovement.wordpress.com/directive-200438ec/#comment-4546 ahmed Wed, 07 Oct 2009 04:18:11 +0000 http://eumovement.wordpress.com/directive-200438ec/#comment-4546 Hi, I'm non eu national married to a german. we have married since 2002 and got my resident permit in uk in 2006. my question is does the 5years count from the day i got the resident permit or the day we got married. thanks ahmed Hi, I’m non eu national married to a german. we have married since 2002 and got my resident permit in uk in 2006. my question is does the 5years count from the day i got the resident permit or the day we got married.
thanks
ahmed

]]> By: Mee http://eumovement.wordpress.com/directive-200438ec/#comment-4479 Mee Wed, 16 Sep 2009 13:16:07 +0000 http://eumovement.wordpress.com/directive-200438ec/#comment-4479 Here the tick, I'm married with a French National and used to travel to EU (Belgium, France and so on)with a Shengen Visa, yesterday we went to apply for a Belgium Visa which should be quick as the usual and we have been told that I don;t need a Visa to go to any EU country if I'm traveling with my wife. The French Embassy on their website state that Yes you don;t need a Visa except if you are married with a French National. Ehhh, I'm I lost here? or is there something wrong? btw, I'm in UK and I do have the Familly memeber Card on my passport. Please advise, Here the tick,
I’m married with a French National and used to travel to EU (Belgium, France and so on)with a Shengen Visa, yesterday we went to apply for a Belgium Visa which should be quick as the usual and we have been told that I don;t need a Visa to go to any EU country if I’m traveling with my wife.

The French Embassy on their website state that Yes you don;t need a Visa except if you are married with a French National.
Ehhh, I’m I lost here? or is there something wrong?

btw, I’m in UK and I do have the Familly memeber Card on my passport.

Please advise,

]]> By: John http://eumovement.wordpress.com/directive-200438ec/#comment-4455 John Mon, 07 Sep 2009 11:38:01 +0000 http://eumovement.wordpress.com/directive-200438ec/#comment-4455 Hi Lee, If you are resident in the UK and has not exercise Treaty Rights to Free movement to work and reside in another Eu member state then you cannot avail of the citizens Directive 2004/38/EC as a European Union citizen. But if you have worked and resided or residing and working in another EU member state then for sure you can avail of that provision. As regards what you require to travel on holidays to spain: I would advise you to attend at the Spanish embassy to apply for a schengen Visa or a multiple travel Visa from the spanish embassy. Your spouse with her biometric ID card from the UK as proof of her legal residence in the UK and a Schengen Visa from the Spanish embassy should be able to travel to spain (Majorca) with you and return. I don't think she require a re-entry Visa into the UK-but i would advise you inquire about that. But I am almost certain she doesn't require a re-entry Visa into UK as a spouse of a UK citizen. Enjoy your holidays and feel free to contact me if any difficulties. As regards the amount payable for the Visa from the Spanish embassy, please contact them for further inquiries. Bye John. Hi Lee,
If you are resident in the UK and has not exercise Treaty Rights to Free movement to work and reside in another Eu member state then you cannot avail of the citizens Directive 2004/38/EC as a European Union citizen. But if you have worked and resided or residing and working in another EU member state then for sure you can avail of that provision. As regards what you require to travel on holidays to spain: I would advise you to attend at the Spanish embassy to apply for a schengen Visa or a multiple travel Visa from the spanish embassy. Your spouse with her biometric ID card from the UK as proof of her legal residence in the UK and a Schengen Visa from the Spanish embassy should be able to travel to spain (Majorca) with you and return. I don’t think she require a re-entry Visa into the UK-but i would advise you inquire about that. But I am almost certain she doesn’t require a re-entry Visa into UK as a spouse of a UK citizen.
Enjoy your holidays and feel free to contact me if any difficulties. As regards the amount payable for the Visa from the Spanish embassy, please contact them for further inquiries.
Bye
John.

]]> By: Lee http://eumovement.wordpress.com/directive-200438ec/#comment-4428 Lee Wed, 26 Aug 2009 15:43:43 +0000 http://eumovement.wordpress.com/directive-200438ec/#comment-4428 Hello, I am getting confused, can someone please offer me advice. I am a British citizen and my Wife is Thai, she originally came to the UK on a Fiancée visa, we then got married and she was given a 2 year extended spouse visa i think it is. She has now been in the UK for 1 year. We are now looking at going on holiday to Spain (Majorca), can someone offer some advice on which forms i need to fill out, if i need to make an appointment or if i can post the application (live a long way from London), what type of visa is needed and how long it will last, and what will it cost. My wife has the new UK biometric ID card which replaces the paper copy of a visa and lists how long she can stay in the UK etc etc just as the old paper visa would. I have also been told, unsure of how true this is that my Wife can actually travel to Spain without the need of a Visa because she is married to a European citizen, this is in accordance with a EU directive CE/58/2004 or CE/38/2004. Can you please confirm if this is true and that she can travel to Spain with myself, European citizen, her Thai passport, our marriage certificate, and her UK biometric ID card. Hello,

I am getting confused, can someone please offer me advice.

I am a British citizen and my Wife is Thai, she originally came to the UK on a Fiancée visa, we then got married and she was given a 2 year extended spouse visa i think it is. She has now been in the UK for 1 year.

We are now looking at going on holiday to Spain (Majorca), can someone offer some advice on which forms i need to fill out, if i need to make an appointment or if i can post the application (live a long way from London), what type of visa is needed and how long it will last, and what will it cost.
My wife has the new UK biometric ID card which replaces the paper copy of a visa and lists how long she can stay in the UK etc etc just as the old paper visa would.

I have also been told, unsure of how true this is that my Wife can actually travel to Spain without the need of a Visa because she is married to a European citizen, this is in accordance with a EU directive CE/58/2004 or CE/38/2004. Can you please confirm if this is true and that she can travel to Spain with myself, European citizen, her Thai passport, our marriage certificate, and her UK biometric ID card.

]]> By: shukri abuukar mahamuud http://eumovement.wordpress.com/directive-200438ec/#comment-4404 shukri abuukar mahamuud Thu, 20 Aug 2009 09:43:39 +0000 http://eumovement.wordpress.com/directive-200438ec/#comment-4404 Iam shukri abuukar mahamuud. I ask a visa to the uk. It is not the frist time I asked for a visa before I got a visa from you which has the number of [number removed] and [number removed] and stayed for 2 weeks. Also I took another visa which has the number of [number removed] and [number removed] and stayed for 2 weeks. I wil go with my husband who has a NEDERLANDS PASPORT which has the number of [number removed] and also my childeren are going whit me who have NeDERLANDS PASPORT and they are here . FADUMA PASPORT number [number removed] hussein fuaad and said they hove the same mumber [number removed] THANK YOU SHUKRI ABUUKAR MOHAMUUD Iam shukri abuukar mahamuud. I ask a visa to the uk. It is not the frist time I asked for a visa before I got a visa from you which has the number of [number removed] and [number removed] and stayed for 2 weeks. Also I took another visa which has the number of [number removed] and [number removed] and stayed for 2 weeks. I wil go with my husband who has a NEDERLANDS PASPORT which has the number of [number removed] and also my childeren are going whit me who have NeDERLANDS PASPORT and they are here . FADUMA PASPORT number [number removed] hussein fuaad and said they hove the same mumber [number removed] THANK YOU SHUKRI ABUUKAR MOHAMUUD

]]> By: John http://eumovement.wordpress.com/directive-200438ec/#comment-4184 John Wed, 01 Jul 2009 10:40:59 +0000 http://eumovement.wordpress.com/directive-200438ec/#comment-4184 Hi Aila, Remember that EU-law provides that once the union citizen has exercised Treaty Rights(ie has left her country of origin to reside in another member state)upon return to his or her country of origin, she carry her community law right with her. So it is possible or legally right to say he or she is still exercising Treaty Right upon her arrival in Portugal: Surrinder Sigh case of the ECJ. I hope my response suffice in resolving your concern. Hi Aila,

Remember that EU-law provides that once the union citizen has exercised Treaty Rights(ie has left her country of origin to reside in another member state)upon return to his or her country of origin, she carry her community law right with her. So it is possible or legally right to say he or she is still exercising Treaty Right upon her arrival in Portugal: Surrinder Sigh case of the ECJ.
I hope my response suffice in resolving your concern.

]]> By: John http://eumovement.wordpress.com/directive-200438ec/#comment-4183 John Wed, 01 Jul 2009 10:21:59 +0000 http://eumovement.wordpress.com/directive-200438ec/#comment-4183 Hi Aila, The answer to your inquiry is yes. you can travel to portugal with your non-eu national family member or spouse. The jurisprudence and provisions of the Directive 2004/38/EC permits family members of union citizens to be able to accompany or join them in the country of origin or host member state. You are totally entitled to accompany the union citizen to his or her country of origin irrespective of whether or not a permit was issued for the journey. Irrespective of whether or not a Visa exist. Your right is on your head as the issue of a residence document is only declaratory of your right of residence under EU-law. Your right is derived from that of your spouse and as long as she is exercising that treaty-right with you in her country of origin, then there should normally be no legal difficulties in that country:Diatta V.Land Berlin and MRax cases of the ecj. Hi Aila,

The answer to your inquiry is yes. you can travel to portugal with your non-eu national family member or spouse. The jurisprudence and provisions of the Directive 2004/38/EC permits family members of union citizens to be able to accompany or join them in the country of origin or host member state. You are totally entitled to accompany the union citizen to his or her country of origin irrespective of whether or not a permit was issued for the journey. Irrespective of whether or not a Visa exist. Your right is on your head as the issue of a residence document is only declaratory of your right of residence under EU-law. Your right is derived from that of your spouse and as long as she is exercising that treaty-right with you in her country of origin, then there should normally be no legal difficulties in that country:Diatta V.Land Berlin and MRax cases of the ecj.

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