ILE visa / need a visa for EU?

[ulike]

Hello

My (Thai) niece is now living in England as she was granted a ILE visa in order for her to live with me (Thai/Brit) and my husband (Brit). Husband now in UK with her and I am finalise my life and business sale and I will join them in a couple of weeks. :-) :-) :-)

We want to go to Malaga for one week and also to Munich at Christmas. Do we need to apply for a new Schengen visa for her or can she go now that she has an ILE visa and travels with us?

She used to have a multi entry 12 month Schengen but it was never used and is invalid.

Thank you

[7by7]

Not as easy a question to answer as one would hope!

My understanding is that any non EEA national who has permanent residence in any EEA state has the same freedom of movement rights within the EEA as an EEA national.

So no visa is required.

However, I know of people who have had problems entering a Schengen state, and even being refused entry, with just their ILR stamp.

These problems come because the UK immigration rules do not have a category of permanent residence. Instead, the UK issues applicants using the UK immigration rules indefinite leave to remain or, like your niece, enter.

Indefinite, not permanent.

So my advice would be to obtain the necessary visa for her.

However, a niece is not classed as a qualifying family member under Article 2 of the directive, so she would need to complete a full application and pay the fee.

But, having said that, para 2 c) says

the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point ( b )
(My emphasis)

I'm afraid I don't know if the highlighted point means direct dependents over 21 who are dependents of the EEA national or his/her non EEA national spouse/partner; or non direct descendants of either who are under 21!

Hopefully someone more knowledgeable than I (e.g. Donutz) in this area will post

[ulike]

Hi 7by7

Thank you, as always.

I will just get her a visa to be sure and delay the visit a little bit.

Last time she got one it was free, so hopefully the same this time.

I am not so bothered about Malaga as its my husband's choice. My big wish is her to go to munich at Christmas and see Santa.

Thank you.

[7by7]

If it was free last time, it should be this time.

Why Munich to see Santa?

As Santa, or Father Christmas, is supposed to come from the North Pole, these days many go to Lapland in Finland (Finland is in the Schengen Area).

See Visiting Father Christmas in Lapland.

[Donutz]

But, having said that, para 2 c) says

the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point ( b )

(My emphasis)

I'm afraid I don't know if the highlighted point means direct dependents over 21 who are dependents of the EEA national or his/her non EEA national spouse/partner; or non direct descendants of either who are under 21!

Hopefully someone more knowledgeable than I (e.g. Donutz) in this area will post

I wouldn't know the answer either, I know a bit about the Schengen rules but not a whole lot on Freedom of Movement for EU/EEA nationals and their family. That nit of text rsays that you can bring your or your spouse his/her direct descendants if they are dependants (or under 21). But how one can proof that a direct family member is an dependant, I wouldn't know. I would guess that say a 30 year old handicaped son, they would classify as being a dependant. Or the (grand)parents who are in need of care. A migration lawyer probably can tell more about that?

But a nice doesn't fall under direct descendants (child, grand child, grand grand child, ...) or ascendants (parent, grand parent, great grand parents, ...). So wonder on which ground a previous visa has been given and why it was free? Unless I'm missing something, a non-direct family member would have to get a visa of they don't have some form of legal ressidence, thus a niece living in the UK (on the basis of...?) would need to apply for a Schengen visa. The member state MAY grand the niece EU/EEA family rights though it would seem rather unlikely that they would be so lenient.

The Schengen Visa Handbook says:

Question no 2: Does the visa applicant fall under the definition of “family member”?

‘Core’ family members have an automatic right of entry and residence, irrespective of their

nationality. Their right of entry is derived from the Directive and the national transposition

measures may not restrict these rights or the scope of ‘core’ family members.

The following persons are defined in Article 2(2) of the Directive as ‘core’ family members:

• the spouse;

• the partner with whom the EU citizen has contracted a registered partnership, on the basis

of the legislation of any Member State, if the legislation of the host Member State treats

registered partnership as equivalent to marriage;

• the direct descendants who are under the age of 21 or are dependant as well as those of the

spouse or partner as defined above; or

• the dependant direct relatives in the ascending line and those of the spouse or partner as

defined above.

In order to maintain the unity of the family in a broad sense, Member States may extend the

facilitations to so-called ‘extended’ family members, see Commission Communication COM

(2009) 313 final23.

The following persons are defined in Article 3(2) of the Directive as ‘extended’ family

members:

• any other (i.e. those not falling under Article 2(2) of the Directive) family members who

are:

• dependants;

• members of the household of the EU citizen; or

• where serious health grounds strictly require the personal care by the EU citizen;

or

• the partner with whom the EU citizen has a durable relationship, duly attested.

Article 3(2) of the Directive stipulates that ‘extended’ family members have the right to have

their entry facilitated in accordance with national legislation. In contrast with ‘core’ family

members, ‘extended’ family members do not have an automatic right of entry. Their right of

entry is derived from the national legislation transposing the Directive where the consulates

should find detailed rules on this category of visa applicants.

For further information on these issues, see Commission Communication COM (2009) 313

final24.

http://ec.europa.eu/dgs/home-affairs/policies/borders/docs/c_2010_1620_en.pdf

The simplest way would be to apply for a Schengen visa for the purpose of tourism and be sure to meet all the criteria.

[ulike]

If it was free last time, it should be this time.

Why Munich to see Santa?

As Santa, or Father Christmas, is supposed to come from the North Pole, these days many go to Lapland in Finland (Finland is in the Schengen Area).

See Visiting Father Christmas in Lapland.

Munich cause of the Christmas markets, its so beautiful. But maybe we will go there.