Border officials cannot require answers to immaterial questions

ECJ case C-68/89 Commission v Netherlands [1991] makes clear that EU citizens are not required to answer border officials’ questions about the purpose and duration of their journey, nor about how much money they have for the journey.

Though this particular case concerned an EU citizen, the ruling applies equally to border officials, such as United Kingdom Border Agency ECOs, who issue the visas that enable free-movement of family members of EU citizens.  If it is prohibited to require of the EU citizen, then border officials cannot bypass that prohibition by simply requiring that same information instead from their accompanying non-EU spouse.

Moreover, these questions are no more relevant for a family member then they are for an EU citizen.   The conditional free movement rights of the non-EU family member derive directly from their relationship to the EU citizen (MRAX, paragraph 74).    The visa is a formality to pre-validate the family relationship and facilitate the applicant’s travel arrangements.

The visa does not depend on assets the applicant has, or on what they plan to do during the trip.

Refusal to answer such not-material questions cannot justify curtailing the applicant’s right of free movement (see “Restrictions on freedom of movement”).

ECJ case C-459/99 MRAX v Etat Belge [2002] is clear that what is required for entry of the family member who does not have a required visa is two things: proof of their family relationship (e.g. a marriage certificate) to the EU citizen and proof of their identity (e.g. a passport).   There is no requirement outlined that the family member must answer non-material questions of the border official.

NOTE: This post was originally written as part of a complaint to the European Commission about UKBA (the British immigration agency) handling of EEA Family Permits, hence the references to the UK.   But each EU member state must reflect ECJ court decisions in their national law and practice, and do so faithfully to the original decision.  This case and European free movement law applies equally in each of the 27 member states!

Entry and initial residence in the host member state

There is no restriction on an EU citizen’s entry to another EU member state, except as outlined in the section “Restrictions on freedom of movement”.   The same applies to the non-EU family member who is travelling with them.

The EU citizen is not initially required to be exercising their treaty rights, as a worker, self employed, student, etc…

Neither the EU citizen nor their non-EU family member need have money, be working anywhere, or even to have what the British call “prospects”.  They do not need to have a destination address, or fixed plans for travel.   Just grand ideas to be in another member state!

You can see this in practice when British citizens use their EU free movement rights to go to Spain, whether on holiday or to live there.   It does not matter whether or where they are employed.  It does not matter if they have assets or cash.  They can move freely and simply, without any conditions.  These same rules apply to citizens of each member state, and to their family members.

What does the non-EU family member need to do?

Non-EU family members of an EU citizen have a conditional right of free movement in the EU.      Namely, they have a full right of free movement so long as they are doing it with their EU citizen family member (and also in a few other cases)!

Period in host member state	Any Conditions or Requirements on non-EU family member?	Notes
Before initial entry	Depending on the passport they are using, some family members can be required to have a visa. Family member can travel if EU citizen is already in the host member state, will be there before the family member arrives (“join”), or they will be travelling together.	Any required visa must be issued.  It is issued for free, on the basis of an accelerated process, and as soon as possible. (See full article on required visas)
Entry to 3 months and 3 months to 5 years	Legal residence of the EU-citizen family member is the requirement that applies in most cases. If that is satisfied, then the non-EU family member is also legally resident in the host EEA member state and they can work if they wish. There are also right-of-residence retention rules for cases where a marriage breaks up, or where the EU citizen stops working or dies.	“Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.” [Directive 2004/38/EC] The EU citizen is not required to be continuously physically present in the host member state – they only have to be continuously legally resident.  So for instance, the family member can continue working in the host member state while the EU citizen travels outside, so long as the EU citizen maintains their right of legal residence. Family member can work in this entire period, from the day of entry, so long as the EU citizen is legally resident in the host member state.
More than 5 years	None! Family member automatically has Permanent Residence (PR) after 5 years of legal residence in the host member state. Once a family member has PR, their right to reside is now permanent, independent of the EU-citizen relationship, and independent of the continued residence of the EU citizen.	Permanent Residence (PR) is only ever lost with an absence from the host member state of more than 2 consecutive years. Somebody with PR is not required to be working or have savings. A “PR Card” simply confirms the already-existing Permanent Residence.

Free movement rights can only be curtailed on the exceptional grounds of public health, national security and public policy. This must be proportionate, very well grounded, can only be done in clearly proscribed situations, and there is a full right of appeal.  For most people this is a total non issue.

What does the EU citizen need to do?

What must an EU citizen be doing in order to be legally resident in a host member state?

Period in host member state	Any Conditions or Requirements on EU citizen?	Notes
Before initial entry	None!	EU citizen does not need to be in a particular member state or even in the EU. They do not need to have work arranged in the host member state.
Entry to 3 months	None! EU citizen is automatically legally resident in the host member state.	EU citizen is automatically resident in all cases, whether they are there on holiday, looking for work, working, or anything else.
3 months to 5 years	Some requirements. EU citizen is normally required to be working, a jobseeker, self sufficient, self employed, a student, or otherwise exercising EU “treaty rights”.  (The UKBA term for this is a “qualified person”). Special rules apply if the EU citizen has been injured while working, or is involuntarily unemployed. Citizens of Romania and Bulgaria may have temporary work restrictions in some member states. If so, EU citizen is legally resident in the host member state.	“Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.” (Directive 2004/38/EC)
More than 5 years	None! EU citizen automatically has Permanent Residence (PR) after 5 years of legal residence in the host member state.	Permanent Residence (PR) is only ever lost with an absence from the host member state of more than 2 consecutive years. Somebody with PR is not required to be working, or have savings. A “PR Card” simply confirms the already-existing Permanent Residence.

Free movement rights can only be curtailed on the exceptional grounds of public health, national security and public policy. This must be proportionate, very well grounded, can only be done in clearly proscribed situations, and there is a full right of appeal.  For most people this is a total non-issue.  (For reference, Germany refuses entry to less than 10 EU citizens per year on these grounds).

It is worth noting that the chart applies to both:

1. An EU/EEA citizen who moves to a host member state different than the member state of which they are a citizen (e.g. A German citizen moving to France)
2. An EU/EEA citizen who has been working or self-employed in a host member state, and who now wishes to return to their country of citizenship (e.g. A British citizen who has been working in Italy and now wants to return to the UK).  In such a case, the non-EU family is allowed to use EU free movement law for entry (ECJ case of Singh).   Once safely back in their home member state, the “EU citizen” is not required to work during the initial 5 years (ECJ ref)

Case C‑68/89 Commission v Netherlands [1991]

I have moved this blog post to it’s own page.

Click here (Case C‑68/89 Commission v Netherlands [1991]) to go to the real thing.

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

“other” family members who are beneficiaries

There are other people who are also direct beneficiaries of Directive 2004/38/EC. These are people who do not fall into the explicit definition of “family member“, but who are none the less “part of the family”.

For these beneficiaries, Directive 2004/38/EC says in the preamble:

In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.

Later, in the text of the Directive, it becomes a little more explicit about who these other beneficiaries are:

Article 3 Beneficiaries

1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

Who can be a beneficiary of Directive 2004/38/EC is worth breaking up and looking at in more detail, category by category:

“other beneficiary”	Notes and interpretation
2 (a) any other family members […] who, in the country from which they have come, are [either] dependants or members of the household of the Union citizen	This covers two separate groups, either: other family members who are dependent on the EU citizen, or other family members who live (or have lived recently) in the same household (even if they are not dependent). Another key phrase is “in the country from which they have come“. The phrase is quite open and covers a number of situations. For a Japanese person, it can include their original home country (e.g. Japan), a country they have recently lived in (e.g. USA) or where they currently live (e.g. France). Real examples: UK resident non-EU parent of a UK citizen child (for Irish visitors visa) Brother of the non-EU wife of an EU citizen (previously part of household in Singapore, rejoining family in Ireland) Non-EU cousin of the non-EU spouse of an EU citizen (for Schengen visa) Sister of the non-EU spouse (before getting RC, sister was on student visa in UK and was fully dependent for course fees and living expenses.  Sister had previously lived in country of origin with financially dependent parents)
[2 (a) continued] or where serious health grounds strictly require the personal care of the family member by the Union citizen;	Any good or real examples? e.g. a non-EU parent who has been quite independent but who now needs intensive assistance because of a medical condition such as a stroke or Alzheimer’s
2 (b) the partner with whom the Union citizen has a durable relationship, duly attested	This category covers all other long term “durable” partnerships, including both opposite-sex and same-sex relationships.There is no official definition of how long the relationship must have existed. Some countries expect to see two years of living together, but if you have a child with somebody and live with them it would clearly be incompatible with the Directive to require two years of relationship history.When a member-state does not recognize civil partnerships as equivalent to marriage, this is the category which is used for entry.

They key thing for people in this category is proving the family relationship to the EU citizen. Once that is done, the provisions of Directive 2004/38/EC have effect, irrespective of how the national government views the relationship. Ireland provides a good example, where there is norecognition of registered partnerships. This following is part of a press release originally issued by the Irish DOJ for the start of Directive 2004/38/EC.

As Irish legislation does not treat registered partnerships as equivalent to marriage Ireland is not be obliged to recognise registered partners as family members. However, Ireland is obliged to facilitate the entry and residence of the partner with whom the Union citizen has a durable relationship, duly attested. In doing so an extensive examination of the personal circumstances of such relations must be undertaken.

UPDATE: the ECJ is starting to look at a case which is directly about “other family members”.   The results of the case may be available in 2012

Directive 2004/38/EC’s definition of “Family Member”

Directive 2004/38/EC defines a “Family member” (in point 2 of Article 2) to be one of the following:

“family member”	Notes and interpretation
(a) the spouse;	A partner in a legal same-sex marriage should also be considered a “spouse”.   See discussion on same-sex marriage.
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a [EU/EEA] Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;	This applies when the member state treats registered partnership “as equivalent to marriage”. Where that is not true, the partner is not considered a “family member” in this definition, but still has a right of entry as a beneficiary (see beneficiary below). This only covers registered partnerships done by an EU member state. Registered partnerships done in Canada or the US would likely be handled as a beneficiary (see beneficiary below).
(c) the direct descendants who are under the age of 21 or are dependents and those of the spouse or partner as defined in point (b);	Children (or grandchildren!) under 21 or those who are older than 21 but still dependent (e.g. students supported by their parents). The child can be of the EU citizen or of the non-EU citizen. This would include a child from a previous relationship or from before the EU-citizen obtained their citizenship.
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);	Dependent parents and dependent grandparents of either the EU citizen or of the non-EU spouse or partner. Dependent usually means financially dependent, though there may be other legally reasonable interpretations. For non-dependent parents, see beneficiary below.

These are the people who have the easy-evidence route through the Directive. They can usually prove their relationship with a simple document, like a birth certificate or a marriage certificate, that legally documents the family link. These “family members” (as the Directive states) “enjoy an automatic right of entry and residence in the host Member State” when they are with their EU citizen relative.

There are other people who are also direct beneficiaries of Directive 2004/38/EC. These are people who do not fall into this explicit definition of “family member“, but who are none the less “part of the family”. See the information about Other Beneficiaries of Directive 2004/38/EC

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 travelling 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.

Followup: I talked with a school teacher who was taking a group of children from the UK for a school trip to France.  She said that this idea is fine in principle, but that if a child does not have proper documentation to reside in the UK, then they can not participate because they will not be able to return to the UK after the trip.  This is only good for children who have legal residence in their home member state.

Requirements for a visa (for family members of EU citizen)

For a visa to be issued on the basis of Directive 2004/38/EC, only the following requirements need to be satisfied:

1. The visa applicant is a direct “family member” of an EU citizen and has proof  (marriage or birth certificate or some combination) of the relationship)
2. The visa applicant will be travelling with, or joining, the EU citizen for a visit or permanent move to an EU member state.  (If they are going to the “home” country of the EU citizen, then there can be a requirement that the EU citizen had previously lived/worked in a different member state)
3. All travellers require a passport (or a national ID card for the EU citizen)

These are the legal requirements for all of the EU/EEA member states, including all Schengen members, the UK, Ireland, Romania and Bulgaria.  They also apply for Switzerland. 

If the family member has a “Residence Card for a family member of an EU citizen”, then they do not require a visa.  (Only the UK does not implement this).

Where a visa is required, “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.”

There is no legal requirement that:

• The EU citizen is already (or will be) living or working in a different EU member state
• The non-EU family member holds a specific immigration visa or status. It is fine for them to have a nationally issued visa or a student visa or a visitor’s visa or even implied status
• The family member apply in their country of origin
• The family member resides or previously resided in the EU/EEA  (This older requirement of some member states was overturned in several ECJ cases, especially Metock)

There is also no legal requirement that you submit:

• bank statements
• pay slips
• letters from your present or future employer or school
• letters of reference
• proof that you will return at the end of the trip
• airline tickets
• confirmed hotel bookings
• references or guarantees from people in the destination country

Please contact the European Commission’s free Solvit service if you have any problems or are required to provide these things.  If they can not help, you can easily make a complaint directly to the European Commission.

In the unlikely event visa application is rejected, there must be a detailed explanation given about the reasons for the rejection, and there is an clear appeal process that you will be told about.   The only four grounds for rejecting a visa application are:

1. public health (i.e. a serious contagious disease)
2. national security
3. (big) public policy
4. the marriage was done solely for getting the visa

They can not reject an application because you did not provide, e.g., a bank statement or hotel reservations.

There is a core definition under Article 2 of “family member“, which includes spouses, descendents (of EU and of non-EU partner) who are dependent or under 21, and dependent ascendants (again of either the EU or non-EU family member). This includes civil partnerships, 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 certificate (wedding or birth), and must be issued the visa quickly.

The more broad definition under Article 3 is of “Beneficiaries“. While these people may be granted the visa facilities described in this article, it is unclear if they are legally entitled to all provisions described.

Once you are in your host member state and you stay for longer than 3 months, at that point your host can require you to get a Residence Card and provide evidence that the EU citizen is working or otherwise exercising treaty rights.

Of related interest: No visa but still want to travel?