visa free travel for school children

from the German embassy web site:

Travel information for school pupils

Basis: Decision of the European Council from 30.11.1994 on the basis of Article K.3.2.b of the Treaty on European Union concerning travel facilities for school pupils from third countries resident in a member state.

Conditions of Article 1 of the decision:

A Member State shall not require a visa of school pupil who is not a national of a Member State but who is legally resident in another Member State and who seeks to enter its territory either for a short stay or transit, if the following conditions are fulfilled:

1. In the framework of a school excursion, the school pupil is traveling as a member of a group of school pupils from a general education school.
2. The group is accompanied by a teacher from the school in question.
3. The accompanying teacher must be able to present a list (on the common form) of the schoolchildren he or she is accompanying, issued by the school in question.
4. The list must contain ALL traveling pupils.
5. The list must describe the purpose and the circumstances of the intended stay.
6. The pupils from third countries must be in possession of a travel document for crossing the border in question.

The French embassy in London has similar information on their web site

School trips exemption:

Pupils/ schoolchildren/ high school students in general education, nationals of countries who would normally require a visa, travelling on a school trip, are exempt from an entry visa into France if their names are entered on a “List of Travellers” form, available from:

British Council
Information Centre
Bridgewater House
58 Whitworth Street
Manchester M1 6BB
Tel. : 0161 957 7755
Fax. : 0161 957 7762

Details are available online at http://www.britishcouncil.org/listoftravellers

This form is not, however, a valid travel document in itself: each pupil must carry a valid individual official document establishing identity and bearing a photograph, such as:
a valid passport
a valid travel document
or a valid ID card

Further information about the schools trip exemption may be obtained from the British Council.

The European Commission takes Greece, Malta, Luxemburg and United Kingdom to the Court of Justice

The European Commission is taking a number of member states to the Court of Justice because they have not satisfied their “communication obligation” arising from Directive 2004/38/EC.

On 15 December 2006 the Commission delivered reasoned opinions to thirteen Member States that had not yet fulfilled their obligations.

Even though efforts in transposition have been stepped up since then, Greece, Luxemburg and Malta have not yet complied with their communication obligation, while the UK has done so only partially. [...] The Commission is examining the communications of a number of other Member States concerned and if necessary will take further procedural steps in due course.

I agree that many member states have been very lax in communicating useful accessible information about their transposition of the Directive. It is, for example, a real slog finding links to the legislation in each member state! Where is the quality information on embassy web sites for family of EU citizens who require visas or work permits ahead of their Residence Card? Were is the clear information about simplified procedures for visits and visas? (And since the information is most useful to people who may not speak the local language, where are the translations?).

But really, this is a bit strange. The real problem is in the transpositions of the Directive, and even more importantly in the day-to-day implementation of that transposition by embassies and member state bureaucracies. Is improved communication really going to make much difference?

But thinking about it, it might be a smart way of getting member states to actually implement what they already have as national law.  Tweaking the law to fix problems in the transposition can come later.

where have you resided in the EU?

If you are an EU citizen or family of an EU citizen, then you are legally considered to be residing in whichever member state you are physically in. This is true for short periods (a weekend visit) or for long periods (a lifetime).

EU citizens have unconditional right to reside in any member state for periods of under three months (see Article 6 below). As long as you are self sufficient, working or studying, you also have a right to reside in a member state for a longer period of time (see Article 7 below). Family of EU citizens have the same rights, but must be accompanying their EU citizen.

The core requirements for “residence” (for EU citizens and their families) comes from Directive 2004/38/EC:

Directive 2004/38/EC

CHAPTER III

RIGHT OF RESIDENCE

Article 6 – Right of residence for up to three months

1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.

2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.

Article 7 – Right of residence for more than three months

1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) are workers or self-employed persons in the host Member State; or

(b) …[are self sufficient]

(c) … [are a student]

(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

As this Directive has been transposed into the law of each European member state, so to have these requirements for residency.

The UK transposition of Directive 2004/38/EC has the corresponding language in describing UK requirements for residency in the UK:

The Immigration (European Economic Area) Regulations 2006

PART 2 – EEA RIGHTS

Initial right of residence

13.—(1) An EEA national is entitled to reside in the United Kingdom for a period not exceeding three months beginning on the date on which he is admitted to the United Kingdom provided that he holds a valid national identity card or passport issued by an EEA State.

(2) A family member of an EEA national residing in the United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in the United Kingdom provided that he holds a valid passport.

The UK rules for issuing EEA family permits (section 21.4.1 – Handling and assessing applications for EEA family permits) are also explicit that the family member of an EU citizen is “resident” if they are lawfully in an EU country:

The non-EEA national could equally have entered the country in some other category (visitor, student etc) and would still be considered as lawfully resident in that Member State. For example, an Indian national married to a French national, who had obtained a visa to enter France as either the spouse of the French national or in some other category (as a visitor, student or work permit holder etc), would be considered ‘lawfully resident’ in France, if, at the time of application, they were abiding fully by the conditions of that visa.

The Irish transposition of Directive 2004/38/EC has the corresponding language in describing Irish requirements for residency in Ireland:

S.I. No. 656 of 2006
European Communities (Free Movement of Persons) (No. 2) Regulations 2006

Residence in the State

6. (1) Subject to Regulation 20, a person to whom these Regulations apply may reside in the State for up to 3 months on condition that he or she -

(a) (i) where the person is a Union citizen, holds a valid national identity card or passport,
(ii) where the person is not a Union citizen, holds a valid passport, and

(b) does not become an unreasonable burden on the social welfare system of the State.

I have resided in three member states since April 2006: Germany, Italy, France. In each case, I was there for a few days.

For people covered by this Directive (EU citizens and their families), there is no legal requirement that you have to stay for a long time (e.g. more than 6 months) in order to legally “reside” in a member state. This Directive (and it’s local transposition) are the primary EU law regarding residence of EU citizens and their families in other EU member states.

Kingdom of Spain: failure to properly implement Directives in national law

EC Court of Justice, 14 April 2005, no. C-157/03
Commission of the European Communities v Kingdom of Spain

In this decision, the EC Court of Justice ruled that Spain has not fulfilled its obligations under a number of directives. First it has been ruled that directives 68/360/EEC, 73/148/EEC and 90/365/EEC were incorrectly incorporated in national law. Particularly because Spain compels third country citizens who are a family member (e.g. partner or child) of a community citizen who has exercised his right to free movement, to submit an entry visa in order to obtain a residence permit.

Furthermore, this decision ruled that, in accordance with the general structures of directive 64/221/EEC154 (and in particular with a view to article 5 of directive 64/221/EEC), a member state must take the decision relating to granting a residence permit as soon as possible, and no later than six months after the application was submitted. On the understanding that this maximum term of six months only applies when, during examination of the application, consideration as to public order are taken into account.

The case remains important for a number of reasons:

• It provides a clear statement of requirements on member states to process Residence Card applications as soon as possible, and only in unusual cases to take six months
• The case law from this case applies also in other EU countries, including Ireland
• Spain has finally in 2007 transposed Directive 2004/38/EC into national law, and this case outlines standards that Spain will have to meet in their implementation of that national law

Freedom of movement can override national legislation on car registration

Case C-232/01 Politierechtbank te Mechelen – Belgium.

A worker is a citizen of Belgium and lives there. He works in Luxembourg and get use of a car (registered in Luxembourg) as part of their job, which he can also use personally.

Article 39 EC prevents Belgium from requiring that the car be registered and owned in Belgium. Doing so would discouage people from seeking work in other member states and discourage employers from hiring from other member states.

The decision applies also to other EU member states

Move home on the basis of EU law (instead of restrictive national law)

In the 1992 case of Surinder Singh (Case C-370/90 The Queen v Immigration Appeal Tribunal et Surinder Singh, ex parte Secretary of State for Home Department), the European Court of Justice ruled that if EEA nationals exercise their community rights in another Member State; on their return to their own country they will be entitled to the same community rights, without discrimination, as any other EEA national. In particular, reference was made to the entitlement of ‘family members’ to join the EEA national on their return to their own country.

The significance is that ‘family members’ including a spouse can rely on their right in EC Law to join you in your own country. It is EU Law which regulates your spouse’s entry, not member state national immigration rules.

The reason that the couple decided to exercise their treaty rights does not matter. It only matters that they were exercising treaty rights. The case of Adrich in 2003 (Case C-109/01 Secretary of State for the Home Department v Hacene Akrich) reiterated the decision in Singh, and is explicit in saying:

Where the marriage between a national of a Member State and a national of a non-Member State is genuine, the fact that the citizen of the Union installed him or herself in another Member State in order, on their return to the Member State of which he or she is a national, to obtain for his or her spouse the benefit of rights conferred by Community law is not relevant to an assessment of their legal situation by the competent authorities of the latter State.

Both rulings have legal effect in all EU countries, including the UK and Ireland. National governments are very aware of the results of these cases, and seem to have implemented it for the most part.

Requirements for a short stay visa (family of EU citizen)

For a short stay (“weekend away” or up to 3 months) visa to be issued on the basis of Directive 2004/38/EC, only the following three requirements need to be satisfied:

1. the visa applicant is a family member of an EU citizen (or one of a specific other set of relationships), and is able to prove it
2. the visa applicant must be travelling with the EU citizen
3. all travellers require a passport (or a national ID card for the EU citizen)

There is no requirement that the EU citizen be living or working in a different member state.

There is no requirement that the non-EU citizen holds a specific immigration visa or status. If the non EU citizen has nationally issued visa or a Residence Card or an EEA family permit or a even student visa, that should be fine. There is nothing that precludes the non-EU citizen being on a visitor’s visa.

The key issue is the nature of the relationship. Is it real and substantial and ongoing? (Time together is one indication of how substantial a relationship is, but it can not be arbitrarily required to be more than 2 years).

The new Directive 2004/38/EC defines two types of non-EU person who fall under its remit, the “family member” of Article 2 and the “beneficiary” family of Article 3.

There is core definition under Article 2 of “family member”, which includes spouses, decedents (of EU and of non-EU partner) who are dependent or under 21, and dependent ascendants. This includes civil partnerships and gay marriages, if the visa-issuing country recognizes these relationships. People in this category people have the simple life because they have easily documented relationships. They can plonk down their certificates, and must be issued the visa quickly.

The more bread definition under Article 3 is of “Beneficiaries”. These are people who don’t fall under Article 2, but would still be normally seen as family members. Examples include long term unmarried couples, civil partnerships (if not recognized in Article 2), other extended family members who live with the EU citizen, and so on. This would include, for example, the non-EU citizen parents of a minor child who has EU citizenship, something which does not fall strictly within Article 2.

The “beneficiaries” typically have to work harder to get their visa issued. They may not have certificates to prove the relationship, and the visa issuer is allowed to make extra enquires or ask for more information about the relationship. But in the end, if the relationship exists, the visa must be issued. Visas in this category must also be issued at no cost – Contact the EU’s Solvit group (http://europa.eu.int/solvit/) if you satisfy the requirements at the top of this posting and are being required to pay for a visa.

For stays of less than 3 months, member states can not require you to submit

• bank statements
• pay slips
• letters from your employer or school
• letters of reference
• proof that you will return at the end of the trip
• airline tickets
• confirmed hotel bookings

Please immediately contact the EU’s Solvit group (http://europa.eu.int/solvit/) if you are ever required to provide any of this.

The only three allowable reasons for not issuing a visa for a qualifying family member are: public health (serious contageous disease), national security, and (big) public policy. If a visa application is rejected, there must be a detailed explaination given about the grounds for the rejection (which must be one of these three).

How is implementation of Directive 2004/38/EC?

The European Commission has set one of it’s “Main outputs for 2007″ to be “Control of the correct implementation by the 25 Member States of Directive 2004/38/EC“.

I think this is important, and I hope the results are made public.

There are a few things I have noticed that are not going well with implementation:

• Directive 2004/38/EC Article 5 (2) says that where non EU family members require visas, “such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.” Some member states only provides visas free of charge to some types of “beneficiary” family member, and it feels anything but accelerated.
• Some embassies require an interview with everyone applying for a visa, including those applying under Directive 2004/38/EC. You have to often wait longer for an interview slot than for the visa itself. In addition, you are often required to call a very expensive telephone number to arrange the interview appointment. If you are lucky enough to live in the city of the embassy, then you only need to take a morning off work — otherwise you have to take a day off work to travel to the city for your interview in order to get your visa for the romantic weekend away in another part of the EU. Is this all strictly within the meaning of “free [...] and on the basis of an accelerated procedure?” And then repeat the whole processes if you want to travel again a few months later.
• Residence Cards must be issued within 6 months (Article 10 (1)). In Ireland they are often not, and the passport is kept for the duration of the application, severely restricting the free movement of the EU citizen and of the family.

Minor children who are citizens of an EU country

The Chen case is interesting. A small child is an EU citizen (Irish!) and the parent(s) are not EU. The child has treaty rights as an EU/EEA citizen, but can only take advantage of them when the parent can come along.

In the UK, the home office interpretation of this case allows the parent(s) to accompany the minor child, but the parent is not allowed to work and must have sufficient resources. This narrows the set of people who can take advantage of the Chen case to wealthy families who can afford to live in the UK without working (Hint: don’t live in London!).

A good summary of the case and it’s implications is at http://www.immigrantcouncil.ie/chen.pdf