Tricky Situation

[Rich05]

Hi, I wonder if the experts can offer any advice on my situation?

I am a UK citizen working and living in Portugal, my girlfriend of two years came to stay with me for three weeks during Feb of this year on a visit visa, returing to Thailand on schedule. Two weeks ago she applied for another visa, this time for three months.

She's due to fly this Saturday, but there's still no answer from the embassy. Her ticket is still reserved, but on the 1st June the schedules will change. So if they give her the visa, she might not be able to travel on the intended dates. Will this cause a situation? Will we have to re-apply?

I'm concerned that they are holding out on us. It's such a pathetic and helpless situation. Plus, to make matters worse she has to travel through Frankfurt to get to Faro, and I'm worried the World Cup might be affecting the application.

[vinny]

So if they give her the visa, she might not be able to travel on the intended dates. Will this cause a situation? Will we have to re-apply?

It would depend on how long her visa will be valid for and on the number of days that she can stay. See also Schengen Visas. Moreover, I believe that she has to enter and leave Portugal within the validity of her visa.

[the scouser]

How long did it take the embassy to issue the first visa? Perhaps your girlfriend could telephone, explain that she's due to fly on Saturday, and ask when she's likely to have a decision.

Scouse.

[Rich05]

She was issued the first visa in about a week. But we applied a month before she was due to fly.

They quizzed us the first time why we were applying so early, so this time when she went alone to apply she went 3 weeks prior to the intended date to travel.

She's been ringing them everyday, but they keep telling her that they don't know yet. I spoke to the embassy today and was told that they are still waiting for an answer, they are aware she is meant to travel on Saturday, and said they would definately have an answer this week, but if it's later than Thursday she won't be able to get the ticket on the exact dates we applied for. They are very vague when we speak to them.

[the scouser]

In which case, it would appear that she has little option other than to wait and see if the embassy comes up with the goods in time. If not, you would need to rebook your girlfriend's flight, but not apply for another visa.

Cheers,

Scouse.

[Rich05]

Thanks Scouse.

[Rich05]

The Embassy still haven't given my girlfriend an answer, she was meant to be here a week ago.

Seriously has anyone encountered this type of thing before?

She applied for a visit visa on 16th may, she wanted to travel on 3rd June. They just keep telling her she has to wait, we keep making new reservations for tickets, I'm beginning to feel like it's not going to happen.

Any advice? Info?

[the scouser]

Hi Rich,

I really don't know what to suggest. Who decides visa applications at the Portuguese embassy? Are they locally decided or are they referred to Portugal? If the latter, is there someone you can contact in the country itself? Alternatively, can you ask the embassy to properly explain why there is such a delay when the first application was granted within days?

Scouse.

[vinny]

If she can prove that she is in a "durable relationship" with a British Citizen, then she could also exercise her Treaty Rights pursuant to Article 3(2)( b ) of the European Parliament and Council Directive 2004/38/EC.

[vinny]

See also A new definition of the family

SEC(2003)1293

Directive on the right to reside freely in the EU

[Rich05]

Thanks for the info Vinny. I know that if i marry her we should have no difficulties being together. I can excersise my right to have family members with me as I reside and work in another EU state. I really want her to get this second visit visa first so we can spend three months with each other before we marry. I've known her 21 months now, and she's getting pretty keen.

I recieved information from the embassy today stating that they are "still

waiting for an answer from the Ministry of Foreign Affairs."

It's now been one month to the day since she applied.

<Sigh>.....why so slow?

[vinny]

The new European Parliament and Council Directive 2004/38/EC came into force on 30 April 2006. It extended the definition of the family. It may possible for your girlfriend, in a "durable relationship, duly attested" with a UK citizen, to qualify for an EEA family permit without getting married.

[Rich05]

"durable relationship, duly attested"

What does this mean?

[the scouser]

I don't think anyone truly knows what the definition is as yet.

I would interpret it as meaning a relationship which is akin to marriage; i.e. you would have to demonstrate that, save for a marriage certificate, you and your g/f are considered to be "married". The constituent parts to this would be being able to show that you spend the majority of your time together and that your domestic arrangements are similar to those of a married couple.

Scouse.

[GU22]

I don't think anyone truly knows what the definition is as yet.

I don't know about Portugal, but as far as the UK is concerned; Annex 21.1 Family Members/Extended Family Members

Is the partner of the EEA national and can prove s/he is in a "durable relationship" with the EEA national - i.e. the applicant would need to meet the requirements in the Immigration Rules for Unmarried Partners.

However, this is being challenged. See New European Regulations Cause Uncertainty to Extended Family Members of European Citizens. Gherson & Co writes to the IND and Seeks Comments From Interested Parties

[vinny]

In A new definition of the family:

However, the directive further provides a provision that implies that the host member state must facilitate the entry and the residence of “the partner with whom the Union citizen has a durable relationship, duly attested” in Art. 3, 2b. This clause seemingly negates the previous passage of the directive that describes one of the family members as a partner in a registered partnership equivalent to marriage in the host member State. The clause does not specify the type of durable relation it entails nor what the duration should be. It, thus, offers a vague definition when it comes to the free movement of partners allowed to accompany a worker in another State in the EU.

As for the European Commission, it stated in an annexe document (SEC(2003)1293) it will interpret the notion of durable relationship as including:

same-sex marriage, registered partnership, legal cohabitation and common-law marriage.

and SEC(2003)1293:

- the concept of registered partner and durable relationship.

The definition given in Article 2(2)( b ) of the amended proposal included both registered partners and partners having a de facto relationship, if the law of the host Member State recognises this type of situation. The Council has decided to restrict this definition to registered partners, if the law of the host Member States treats registered partnerships as equivalent to marriage.

At the same time, the text of Article 3 has been amended to provide that any Member State must facilitate the entry and residence of the partner to whom the Union citizen is linked by a duly attested durable relationship. The Commission has accepted the approach proposed by the Council. While it is true that the definition of Article 2(2)( b ) is more limited than the text of the amended proposal, it must be considered that the content of Article 3 has been extended to include any type of durable relationship. The Commission considers that the concept of durable relationship may cover different situations: same-sex marriage, registered partnership, legal cohabitation and common-law marriage. The concept of facilitation has been clarified in recital 6a.

The Commission considers that the text of the common position represents a fair compromise which makes it possible to facilitate the right to free movement and residence of unmarried partners of Union citizens without imposing changes in the national law of the Member States.

GU22 has already pointed out that the UKVisas interprets a "durable relationship" as equivalent (i.e. necessary and sufficient) to Unmarried Partners under the Immigration Rules. However, while sufficient, Gherson & Co questioned its necessity.

Other EU countries may be less strict. For example, Belgium suggests the following documents:

7. Supporting documents as proof that there is actual cohabitation and that your relationship is a durable one, such as: joint financial records, utility bills in both names, mortgage/rental agreement in both names, letters from friends and family, photographs, etc.

It is worth asking the Embassy of Portugal what documents they would consider as sufficient for statisfying their interpretation of "durable relationship, duly attested" in relation to Article 3(2)( b ) of the European Parliament and Council Directive 2004/38/EC. Wouldn't it be strange if the Foreign Ministry is considering your girlfriend's application in light of Article 3(2)( b ) in Directive 2004/38/EC and hence the delay?

[Rich05]

Thanks Vinny, that's all very interesting information. We have talked about marrying this year, which should make the whole thing easier anyway. (Unless they are still holding onto her passport at that time.)

She rang the embassy again today and they told her once again they are still waiting for an answer. They said she could be waiting another month, perhaps even longer. And they can not give a reason as to why she has to wait this long.

She asked if this kind of thing has happened before, they told her 'yes,' and that usually the visa wasn't given after this kind of delay.

She asked if she could cancel her application and re-apply, this time for a 30 day visa (same as last time) - which should prove easier - they told her no.

Now they still have her passport, so she can't go anywhere until the embassy make a decsision.

I am wondering whether I should get a lawyer here in Portugal to telephone the embassy or the Foreign Ministry on my behalf and put forward a few questions?

[Rich05]

Still no word from the embassy. I'll be ringing them tomorrow to try and talk them into giving me an answer.

I just have a couple of questions if anyone has any knowledge of this:

If I return to thailand and marry my girlfriend (we were planning to at the end of this year anyway), how long does it take before we are legally married? Do we have to submitt the paperwork and wait a few days?

I know after we are married we can then apply for a Family Permit for her to join me perminently in Portugal (I am from UK), but how long does the application process usually take? And will I have to wait for them to refuse the visit visa we are currently waiting for an answer on?

Also I was wondering, will I have to get her a new passport with her new surname before she can travel?

Sorry if I seem naive, but so far this forum has been the best, simplest and most effective way of gathering information. The Embassies are so vague and unhelpful it's making me crazy.

Thanks guys.

[the scouser]

Rich,

If you wish to go the marriage/family permit route, you can marry in Thailand within days and immediately make the family permit application.

In theory, you would need to demonstrate that you are married, you are a citizen of an EEA country other than Portugal, and you are exercising a treaty right (e.g. working). However, I don't know of any peculiar quirks the Portuguese embassy in BKK might have when it comes to family permit applications. You might also care to get a Portuguese residence permit if you don't already have one.

A family permit can only be refused in limited circumstances and any refusal has to be fully justified. The embassy is obliged to deal with the application on the day of receipt and you could simultaneously withdraw your girlfriend's visit visa application.

Should you marry, your girlfriend will not need to get a new passport. She can either keep her maiden name or have her current passport amended by the Thai authorities to reflect her married name.

Scouse.

[Rich05]

Excellent thanks Scouse! I actually already have a Portuguese Residents card.

The embassy told me I could not withdraw her current visit visa application, I will be sure to ask them about this.

If we were granted a Family Permit would she then be able to stay in Portugal indefinately, and if we wanted to travel anywhere else in Europe would I then just apply to the particular embassy in Portugal for a short stay visit visa?

[the scouser]

Your girlfriend would be issued with a residence permit in line with yours and, after 5 years, she could apply for permission to stay in Portugal indefinitely.

Under the new legislation which Vinny highlighted in another thread, once your girlfriend has her residence permit she won't require a visa to travel to another EEA country.

Scouse.

[Rich05]

Thank you Scouse.