Freedom Of Movement Directive 2004/38/eu

[cuddleypete]

Hi all not sure in right place but i will try to get the right answer here.

I have been told that my wife (thai) can get freedom of movement stamp in her passport and then she does not need to apply for a schengen visa again as she is married to me and living in the uk Is this true? and if so how do i go about getting it done.

any help much appreciated

pete

Sorry should be this Directive 2004/38/ec

Edited October 26, 2012 by cuddleypete

[cuddleypete]

like to add this

Long-term resident status

EU countries must recognise long-term resident status after five years of continuous legal residence. Absences from the EU country for periods of less than six consecutive months (and not exceeding ten months in total within the five-year period) or for specific reasons provided for by national law (e.g. military service, secondment for work purposes, serious illness, maternity, research or studies) will be regarded as not interrupting the period of residence.

still not sure if i have been told right please help

[cuddleypete]

also found this

Your registered partner and extended family - siblings, cousins, aunts, uncles, and so on – can ask the authorities in an EU country to officially recognise them as family members of an EU national. If they obtain recognition, they won't need a visa to enter that country – they will receive the same treatment as your spouse, parents and children

[Eff1n2ret]

Article 5 (Right of Entry) of the Directive says this:-

"2. Family members who are not nationals of a Member State shall only be required to have an

entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national

law. For the purposes of this Directive, possession of the valid residence card referred to in

Article 10 shall exempt such family members from the visa requirement."

Article 10 says this:-

"1. The right of residence of family members of a Union citizen who are not nationals of a Member

State shall be evidenced by the issuing of a document called "Residence card of a family member of

a Union citizen" no later than six months from the date on which they submit the application."

Unless your wife was granted residence under the EEA (Immigration) Regulations 2006, which are the UK's Implementation of the 2004 Directive, she won't have "a document called Residence card of a family member of a Union citizen", and will need to apply for a Schengen visa. If she came to the UK with a spouse visa and has, or intends to apply for, ILR under the UK Immigration Rules, the 2004 Directive doesn't apply to her or to any other family members.

[goatfarmer]

There are two issues here:

i. rights of a non-EU national with a residence card; and

ii. right to obtain a residence card.

If she has a residence card she doesn't need a visa. Directive:

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. 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.

ii. getting a residence card under the Directive

She can get a residence card under the Directive if you are an EEA national other than a UK national. Remember the Directive does not apply to nationals in their own country except in one specific situation:

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.

So your spouse doesn't get the benefit of the Directive if you are UK citizen - with one exception (returning to the UK from residence in another Member State.)

If you were a national of an EEA country other than the UK, living in the UK, then your spouse would get the benefit of the Directive. This is where the five year rule comes in. The issuing of a residence card pursuant to the Directive in the UK is provided for in the Immigration Regulations of 2006:

Issue of residence card

17.—(1) The Secretary of State must issue a residence card to a person who is not an EEA

national and is the family member of a qualified person or of an EEA national with a permanent

right of residence under regulation 15 on application and production of—

(a) a valid passport; and

( proof that the applicant is such a family member.

So, the Thai wife of a French citizen living in the UK can get the residence card if the French citizen has permanent right of residence under reg. 15:

Permanent right of residence

15.—(1) The following persons shall acquire the right to reside in the United Kingdom

permanently—

(a) an EEA national who has resided in the United Kingdom in accordance with these

Regulations for a continuous period of five years;

( a family member of an EEA national who is not himself an EEA national but who has

resided in the United Kingdom with the EEA national in accordance with these

Regulations for a continuous period of five years;

So, the bottom line, if you want to claim UK residency for you wife under the Directive, as transposed by the Immigration Regs of 2006, you must be an EEA national other than a UK national. If you are a UK citizen, your wife must qualify for residence under UK law.

Edited October 27, 2012 by goatfarmer

[goatfarmer]

Here's a quote from the Dutch Embassy in the UK:

Family member of an EU/EEA national who

holds a different type of residence permit

travelling with the EU/EEA national

to the Netherlands:

visa required

When

travelling to the Netherlands without the EU/EEA family member

,

regular Schengen visa

procedures apply.

http://www.dutchemba...index.php?i=261

"Different type of residence permit" means a residence permit other than an Article 10 permit (which Eff1 has quoted above.)

Note also the requirement that the holder of the Article 10 residence permit must be travelling with or joining the family member.

The Dutch claim that an Article 10 residence permit is not conclusive proof of status and that you might be required to show proof that you are entitled to the permit. Good lord! You might as well just get a visa.

Edited October 27, 2012 by goatfarmer

[cuddleypete]

thankyou all for your answers