Same sex marriage and free movement

Six EEA countries now perform same sex marriages: Belgium, Iceland, the Netherlands, Norway, Portugal, Spain, and Sweden.   Outside the EU/EEA, Canada, Argentina, and some US states (including New York, Vermont, Connecticut, Iowa and Massachusetts) also happily marry same sex couples.

The EU free movement Directive 2004/38/EC does not explicitly refer to same sex marriages.   Point 2 of Article 2 does talk about “spouses”  and “partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a [EU/EEA] Member State” (see full definition of direct “Family Member”).

An older ECJ case, State of the Netherlands v Ann Florence Reed. [1986] EU ECJ R-59/85 (17 April 1986), seems to leave plenty of room for same-sex spouses to be just like any other spouse in “a marital relationship”:

14 Article 10 (1) of Regulation no 1612/68 provides that certain members of the ‘family‘ of a worker, including his ‘spouse’, irrespective of their nationality, ‘have the right to install themselves with a worker who is a national of one member state and who is employed in the territory of another member state’.

15 In the absence of any indication of a general social development which would justify a broad construction, and in the absence of any indication to the contrary in the regulation, it must be held that the term ‘spouse’ in Article 10 of the regulation refers to a marital relationship only.

EU national doesn’t have their passport or ID card?

Are you an EU national in a different member state?  How serious is it not to have your passport or ID card when stopped by the police?    The following is a worst case scenario, which hopefully few EU nationals will ever face:

ECJ Case C-215/03 (Oulane)  — 17 February 2005

“On 3 December 2001, Mr Oulane was stopped by the Netherlands authorities on grounds of suspicion of illegal residence. During questioning, Mr Oulane, who did not have any identity documents in his possession, stated that he was a French national staying in the Netherlands for approximately three months on holiday. The Netherlands authorities detained him with a view to deportation on the grounds, inter alia, that there was a risk that he would seek to evade deportation.”

Mr Oulane was in fact a French national, and later produced his ID card.  Several months later, police again arrested and detained him.  (Remember this was in the immediate aftermath of 9/11 when the tendency to arrest “foreign looking” people was intense).

No visa but still want to travel?

Are you a direct family member of an EU citizen and you need to travel within Europe with your EU family member, but do not have a required visa?

If you have a “Residence Card” for a family member of an EU/EEA citizen, then you in most cases do not need a visa.  If you do not have this Residence Card, you may need a visa (depending on which passport you hold).

If you can get the visa in time for your travel, then do that!  It should be issued easily.  Travel is a lot easier if you have the visa and don’t need to worry.  See: Requirements for a short stay visa as family member of an EU citizen.   Also be sure to see the warnings at the end of this posting!

But non-EU family members of EU citizens have a fundamental right (coming from the EU treaties) to travel together with their EU family members to any of the EU member states, even if they do not have the required visa.  This right has been clarified and upheld in 2002 by the highest European court, the ECJ, in the case C-459/99 (MRAX vs Kingdom of Belgium), and has been incorporated explicitly into Directive 2004/38/EC.

C-459/99 (MRAX vs Kingdom of Belgium)

The operative part of the ECJ decision C-459/99 (MRAX vs Kingdom of Belgium) (summary PDF of MRAX decision, full text of MRAX decision) reads:

1. On a proper construction of Article 3 of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, Article 3 of Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services and Council Regulation (EC) No 2317/95 of 25 September 1995 determining the third countries whose nationals must be in possession of visas when crossing the external borders of the Member States, read in the light of the principle of proportionality, a Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health within the meaning of Article 10 of Directive 68/360 and Article 8 of Directive 73/148.

General Information

Travelling without a visa can be a pain, even after the MRAX ECJ ruling.  If somebody official says you need a visa, it is usually easiest to get one and travel with that.   If you travel without a required visa, there are a number of challenges you may need to overcome.

In the following, it is essential to be aware:

1. These are suggestions that may ease your entry without a visa. They should not be taken as legal advice and come with no guarantee. If you want a guarantee, get a visa!
2. European free movement rules apply when traveling to an EU country different than the citizenship of the EU family member.  e.g. If the EU family member has French citizenship, then the rules apply for entry into all EU countries other than France.   These rules only apply for travel back to the EU “home country” when the EU family member has recently been working in another EU member state.  e.g. The rules apply for the French worker living in the UK who wishes to enter France with their non-EU family members.
3. You must be traveling together with (or joining) your EU/EEA family member
4. You must have your passport and your partner must have their EU member state ID card or passport
5. You must carry proof of the family relationship (e.g. an original marriage certificate, birth certificate, or adoption certificate, as well as an official translation if the original is in a non-European language)
6. Border guards may, in some cases, not be aware of all aspects of your right to free movement and of their legal obligations.  You may need to politely provide them with references to the law or their procedures and rules (such as this blog entry) and should very politely request their managers and supervising officers if there is any difficulty.
7. Employees of airlines and passport checking firms are less likely to be aware of your legal rights and may resist letting somebody without a visa on board because they fear fines from the government of your destination for letting somebody on board without the proper travel clearance.  Be polite and patient but firm with them.
8. You should print out, organize and travel with each of the documents referenced in this article, as well as other supporting material.   Read it, understand it, and travel with it.  You can share the documents with border guards and their supervisors if there is any misunderstanding.
9. You have a right to any refusal in writing, along with reasons for the refusal.  Make sure they clearly state that the EU citizen was present, and the marriage certificate was produced, but that entry was refused.
10. Entering without a visa will likely take more time at the border than you are used to.  Take some food and water, and do not have anything else planned for a few hours after your arrival.
11. Be calm, relaxed and happy in dealing with border guards.   Quite a few of them well understand the laws on free movement within the European Community, and will deal with you quickly and politely.

Directive 2004/38/EC has the following to say:

Directive 2004/38/EC
Chapter II — Right of exit and entry
Article 5 — Right of entry
4. Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence.

Each member state has had to transpose Directive 2004/38/EC into their own legislation and must include Article 5 in the transposition.

The European Union comments about this in their document TABLE OF CORRESPONDENCE BETWEEN DIRECTIVE 2004/38/EC AND CURRENT EC LEGISLATION ON FREE MOVEMENT AND RESIDENCE OF UNION CITIZENS WITHIN THE EU (quote starts page 6):

Article 5(4) [of Directive 2004/38/EC] works as a safeguard for persons entitled to free movement when they are unable to show the required documents when crossing a border. This provision is based on the judgment of the [ECJ] in case C-459/99 [ruling of 25 July 2002 in MRAX v Belgian State] according to which on a proper construction of Article 3 of Directives 68/360 and 73/148 and Regulation 2317/95, read in conjunction with the principle of proportionality, a Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties.

How does this work in practice in the UK?

The UK gives the following guidance to its border guards in Border Force Operations Manual –  EEA Nationals & their Dependents.  Note that the following quoted section is about family members of EEA citizens who do not have a required UK issued EEA family permit (the UKBA name for a visa for family members of an EU citizen), or a Residence Card, or even possibly have no passport:

5.5 Procedures when no EEA family permit or residence card is held

5.5.1 Admission of family members who are unable to produce a valid passport, family permit or residence card

Border Force officers will need to assess whether or not a person qualifies for admission under the EEA Regulations in the above situations. Ports should take particular note of the guidance on those who seek admission under the extended family member provisions as dependents relatives and as family members of an EEA national with whom they have a “durable relationship” (unmarried partner); the relevant criteria in Part 8 of the Rules (excluding entry clearance) should be used to make a decision on whether or not to admit under EEA Regulations. Unlike immediate family members the EEA Regulations allow for an “extensive examination of the personal circumstances” of extended family members.

5.5.2 Seeking admission at port

Applicants at port should be treated as persons seeking admission unless reference is made to applying for a residence card. Admission will fall into one of the following:

• Produces satisfactory evidence on arrival — The person should be admitted for 6 months on a Code 1A [Ed: Code 1A has recently been replaced by a special ‘EEA Dependant’ ink stamp as described in a home office FOI response]. Complete landing card.
• Is unable to produce satisfactory evidence on arrival — The person should be given “every reasonable opportunity” to prove by other means that he is the family member of an EEA national; a person should not automatically be refused admission as a result of not being able to produce adequate evidence. As a guide within a week of arriving at port should be adequate; ports can consider refusing admission at this point, unless the situation suggests more time is needed.
• Submits an application for admission post arrival

In the response to a 2014 FOI request, Home office provided information about the ‘EEA Dependant’ ink stamp they issue in such circumstances:

If a non-EEA national arrives at the UK border seeking admission under the EEA Regulations as the family member of an EEA national, or of a British citizen under the Surinder Singh judgment, and does not have a valid EEA family permit (or other document specified in regulation 11(2)), the Border Force officer will give the passenger the opportunity to prove by other means that they qualify for entry (as required by Article 5(4) of the Directive and regulation 11(4) of the EEA Regulations).

If the officer is satisfied that the passenger is eligible for admission, the passenger’s valid  passport will be endorsed at the border using an ‘EEA Dependant’ ink stamp for a period of six months. This stamp has replaced the ‘code 1A’ stamp previously used for this  purpose.

A letter from Damien Green (Minister of Immigration in Britian) makes this clear:

Under Regulation 11, the family member of an EEA national must be admitted to the UK if he or she produces on arrival a valid passport and an EEA family permit, a UK issued residence card or permanent residence card, or if he or she is able to prove the family relationship by other means. [emphasis added]

It is therefore not compulsory for family members of EEA nationals to obtain an EEA family permit before travelling to the UK, and UK Border Agency officers will consider any evidence presented by passengers arriving at the UK border that they are entitled to be admitted as a family member of an EEA national in accordance with regulation 11 (4) [Ed: This is the paragraph which implements MRAX]. Nevertheless, it is strongly recommended that family members obtain an EEA Family Permit, which are issued free of charge, before travelling in order to facilitate their entry to the UK.

How does this work in practice in Schengen member states?

The European Commission gives Schengen member states (which now includes most member states) the following clear directions in the “Practical Handbook for Border Guards (Schengen Handbook) [EN]” (also available in other EU languages):

3.1 Persons enjoying the Community right of free movement

3.1.1 Persons enjoying the Community right of free movement are authorised to cross the border of a Member State on the basis of the following documents, as a general rule:

• EU, EEA, CH citizens: identity card or passport;
• members of the family of EU and EEA citizens who are nationals of a third country: passport. They may also be required to have an entry visa, if they are nationals of a third country subject to the visa obligation, unless they are in possession of a valid residence permit or card, issued by a Member State (or by EEA countries);
• members of the family of CH citizen who are nationals of a third country: passport. They may also be required to have an entry visa, if they are nationals of a third country subject to the visa obligation.

3.1.2 However, if a person enjoying the Community right of free movement does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned must, before turning him/her back, give such person every reasonable opportunity to obtain the necessary documents or have them brought to him/her within a reasonable period of time or corroborate or prove by other means that he/she is covered by the right of free movement.

3.1.3 As a consequence, checks on persons enjoying the Community right of free movement should be limited, as a general rule, to the verification of their identity and nationality/family ties (so-called “minimum check”, see above point 1.4). No questions concerning the purpose of travel, travel plans, employment certificate, pay slips, bank statements, accommodation, means of subsistence or other personal data should therefore be asked to them.

[…]

Legal basis – Case law:

• Directive 38/2004/EC (Articles 4, 5 and 27)
• Schengen Borders Code (Article 7)
• Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, 21 June 1999
• Judgement of the ECJ of 25 July 2002, Case C-459/99, MRAX vs. Belgium
• Judgement of the ECJ of 17 February 2005, Case C-215/03, Salah Oulane vs. Minister voor Vreemdelingenzaken en Integratie
• Judgement of the ECJ of 31 January 2006, Case C-503/03, Commission vs. Spain.

Practical experience of people who have done this

• Stefan-TR writes clearly about his wife entering the UK without the EEA Family Permit and the (positive!) result
• A Polish national and her husband flew to the UK and entered easily
• West African wife of UK national enters UK with husband by ferry at Calais.  UK national had been living and working in Spain and entry was made on the basis of the ECJ Singh case
• I have entered into Ireland at Dublin airport with my wife.  She did not have the required visa.  After some back and forth, and a wait of maybe 45 minutes (or at least it seemed that long), she was allowed entry.  Some of the guards clearly did not know the rules, but the one we were dealing with was very polite and eventually everything was sorted out.  We had a nice time exploring Dublin and then went home.
• Scott, a visa requiring non-EU citizen, writes about entering Spain together with his EU partner without the required visa after the Spanish embassy took  too long to process their application
• The non-EU spouse of a British woman, normally resident in Sweden, who entered the UK in Calais.   They had the unfortunate experience of a rude UKBA Immigration Officer, but it still only took 10 minutes!
• The Albanian wife of a British citizen entered the UK from Calais by ferry without an EEA Family Permit: “[The Immigration officer] was happy that I had everything so organised and although it was unusual he did everything according to what the laws were that I had read and stamped my wife’s passport with the Code 1A. It did not take very long at all.”
• Russian wife enters UK with EEA husband by ship: “Much less hassle to get an EEA family permit, but i take a certain pride to being called as “stubborn as a Norwegian“
• The Moldovian wife of a Romanian citizen did not have an easy time entering Ireland.  She was detained and held.  In the end the government was fined 7000 euro, but that is small compensation

Important warnings to keep in mind!

1. These are suggestions that may ease your entry without a visa.  They should not be taken as legal advice and come with no guarantee.   If you want a kind-of guarantee, get a visa!
2. If you need to fly to your destination, the airline may turn you away before you ever have a chance to talk with a border guard.  They are often instructed to refuse to carry people who do not have the right visa, and do not know about these European legal rules.
3. ECJ case law applies to traditional EU/EEA member states.  They likely do NOT apply to entry into Switzerland (which is part of Schengen but not directly subject to ECJ case law), although the Schengen Practical Handbook for Border Guards does not make an exception for Switzerland

Some European Commission observations on Directive 2004/38/EC

The European commission comments on implementation of Directive 2004/38/EC in their REPORT FROM THE COMMISSION, Fifth Report on Citizenship of the Union (1 May 2004 – 30 June 2007) 15.2.2008

Directive 2004/38/EC

The control of the correct implementation of the Directive is an absolute priority for the Commission. Between June 2006 and February 2007, 19 infringement procedures were opened for non-communication of national implementing measures: in June 2007 15 of them were open, 4 of which had been referred to the ECJ. In 2007 the Commission launched a study examining the conformity of transposition measures. Certain problem areas of incorrect implementation of the Directive have, however, already been identified on the basis of individual complaints, petitions and EP questions.

Third country family members continue to encounter problems, not only with regard to authorisation of their entry but also with the issuing of residence cards. They have the right to reside with the Union citizens on grounds of their family link alone but some Member States require them to present documents or undergo procedures not allowed by the Directive. The Commission used and will continue to use its powers under Article 226 EC in order to ensure compliance with the Directive.

Many complaints concern obstacles to free movement encountered by Union citizens travelling to another Member State due to the documents demanded by border authorities and air carriers. In June 2005 the Commission invited all Member States to verify that national legislation and practice, including the rules and regulations applied to and by airlines, are in accordance with EC law. Following the Commission’s intervention, there were essentially no further complaints in this particular area.

In a number of judgments (cases C-200/02 Chen, C-215/03 Oulane, C-157/03 Commission v Spain, C-503/03 Commission v Spain, C-258/04 Ioannidis, C-1/05 Jia, C-50/06 Commission v The Netherlands) the ECJ recalled that the right to reside in the territory of a Member State is conferred directly on every Union citizen by Article 18 EC and underlined the need to interpret the right of free movement in the light of fundamental rights and in particular of the right to protection of family life and the principle of proportionality.

Chindamo and Directive 2004/38/EC protections

There is a nice post at the Free Movement blog about the Chindamo and Directive 2004/38/EC protections.

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.

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 discourage people from seeking work in other member states and discourage employers from hiring from other member states.

The decision applies to all 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 ECJ ruled that when EEA nationals work or are self-employed in another Member State, that on 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.

An “Ad-Hoc” comparison of National Law vs. European law and Directive 2004/38/EC was compiled by the European Migration Network trying to answer the following:

The Research section of the Belgian Immigration Department would like to have a better view on the situation in the other Member States. They have the following query:

‘Do family members of a national of your Member State have the same/less/more rights than family members mentioned in Directive 2004/38/EC’? In case of differences in the rights, please provide details.’

A couple of other articles are interesting and relevant to this discussion:

• What counts as working for the purposes of EU free movement
• A BBC New article entitled: The Britons leaving the UK to get their relatives in 

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