Appendix: traveling with Thai family member and EU national

[Donutz]

The FAQ above should answer most questions, but in a lot of posts people still report about unclear or false instructions by embassy staff or official website with visa instructions.
Therefor, as an appendix, you'll find the most important parts of EU instruction's cited here.

The EU's official website on traveling gives a good short overview of traveling as an EU national with your non-EU family members, here you will also find contact information for the EU Ombudsman Solvit at the bottom of the page under "need more help?":
http://europa.eu/youreurope/citizens/travel/entry-exit/non-eu-family/index_en.htm

These rights are derived from the EU directive on Freedom of Movement: Directive 2004/38/EC:
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32004L0038

The Visacode for Schengen members is EU Regulation No 810/2009:
http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32009R0810

When applying you should read the instructions of the embassy carefully, incase these instructions are not entirely correct you have several options:
- Be practical and do as the embassy says (and consider contacting the embassy, Solvit and EU Home Affairs for an official report afterwards so authorities may look into it. A single complaint may not always help, but with sufficient complaints authorities such as the EU will definately investigate and take approperiate action).
- Point out to the embassy that they are in error, possibly contacting Solvit aswell.
- Change your plans and chose a different EU nation to go to which does do a more proper job and gives your spouse the quick, minimum hassle "VIP" route.
- Try to reach the external border and gaining access there, such as making your way to Dover and contacting French border staff on the UK side of the channel. If you are taking a plane, good luck convincing the airliner that you're Thai spouse is entitled to a visa at the border, they most likely will not let you board.
- Skip your holiday to the EU and spend your money elsewhere.

If you do meet silly requests from embassy staff or the external (and entirely optional!) service provider VFS Global or TLS Contact, you may wish to know the following:
1) The embassy needs to see evidence of a legal family relation. They might asks for specific items (such as a marriage certificate, often legalized) but should consider any evidence of a legal, non-fraudulent marriage. If they can be convinced that the family relation is genuine they must accept this.
2) ID of THai and EU national
3) That the Thai spouse will travel with or join the EU national (a letter, statement or -even though stricly seen not required, commonly requested: travel reservation-

EU Home Affairs explains this in more detail. Important points have been made bold.

The Operational instructions Handbook for the processing of visa applications and the modification of issued visas is quite extensive, the most important paragraphs on EU family applications have been cited below

PART III: SPECIFIC RULES RELATING TO APPLICANTS WHO ARE FAMILY
MEMBERS OF EU13 CITIZENS OR SWISS CITIZENS

Legal basis: Visa Code, Article 1 (2) (a) and (b )

Under Article 21 of the Treaty on the Functioning of the European Union, every European
Union citizen has the right to move and reside freely within the territory of the Member
States, subject to the limitations and conditions laid down in the Treaty and by the measures
adopted to give it effect. These limitations and conditions are set out in Directive
2004/38/EC14 on the rights of Union citizens and their family members to move freely within
the territory of the Member States.

The right of free movement of EU citizens would not have any useful effect without
accompanying measures guaranteeing that this right is also given to their families. Therefore
the Directive extends the right to free movement to family members of EU citizens. Article 5
(2), 2nd sub-paragraph of the Directive provides that "Member States shall grant [family
members covered by the Directive] every facility to obtain the necessary visas. Such visas
must be issued free of charge as soon as possible and on the basis of an accelerated
procedure.".

As Directive 2004/38/EC represents a lex specialis15 16 with regard to the Visa Code, the Visa
Code fully applies where the Directive does not provide an explicit rule but refers to general
"facilities".

(....)

3. SPECIFIC DEROGATIONS FROM THE GENERAL RULES OF THE VISA CODE

This point provides for operational instructions concerning the specific derogations from the
general rules of the Visa Code that are to be applied when it has been ascertained that the visa
applicant falls under the Directive and that there is no exemption from the visa requirement.

3.1. Visa Fee
No visa fee can be charged.

3.2. Service fee in case of outsourcing of the collection of applications
As family members should not pay any fee when submitting the application, they cannot be
obliged to obtain an appointment via a premium call line or via an external provider whose
services are charged to the applicant. Family members must be allowed to lodge their
application directly at the consulate without any costs. However, if family members decide
not to make use of their right to lodge their application directly at the consulate but to use the
extra services, they should pay for these services.
If an appointment system is nevertheless in place, separate call lines (at ordinary local tariff)
to the consulate should be put at the disposal of family members respecting comparable
standards to those of "premium lines", i.e. the availability of such lines should be of standards
comparable to those in place for other categories of applicants and an appointment must be
allocated without delay.

3.3. Granting every facility
Member States shall grant third country family members of EU citizens falling under the
Directive every facility to obtain the necessary visa. This notion must be interpreted as
ensuring that Member States take all appropriate measures to ensure fulfilment of the
obligations arising out of the right of free movement and afford to such visa applicants the
best conditions to obtain the entry visa.

3.4. Processing time
The visas must be issued as soon as possible and on the basis of an accelerated procedure and
the procedures put in place by Member States (with or without outsourcing) must allow to
distinguish between the rights of a third country national who is a family member of an EU
citizen and other third country nationals. The former must be treated more favourably than the
latter.
Processing times for a visa application lodged by a third-country national who is a family
member of an EU citizen covered by the Directive going beyond 15 days should be
exceptional and duly justified.


3.5. Types of visa issued
Article 5(2) of the Directive provides that third-country nationals who are family members of
EU citizens may only be required to have an entry visa in accordance with Regulation (EC)
No 539/2001.

3.6. Supporting documents
In order to prove that the applicant has the right to be issued with an entry visa under the
Directive, he must establish that he is a beneficiary of the Directive. This is done by:
presenting documents relevant for the purposes of the three questions referred to above, i.e.
proving that:
- There is an EU citizen from whom the visa applicant can derive any rights;
the visa applicant is a family member (e.g. a marriage certificate, birth certificate,
proof of dependency, serious health grounds, durability of partnerships ) and

- his identity (passport);

- and the visa applicant accompanies or joins an EU citizen (e.g. a proof that the EU
citizen already resides in the host Member State or a confirmation that the EU
citizen will travel to the host Member State).

It is an established principle of EU law in the area of free movement that visa applicants have
the right of choice of the documentary evidence by which they wish to prove that they are
covered by the Directive (i.e. of the family link, dependency ). Member States may,
however, ask for specific documents (e.g. a marriage certificate as the means of proving the
existence of marriage), but should not refuse other means of proof.
For further information in relation to the documentation, see Commission Communication
COM (2009) 313 final22.

3.7. Burden of proof
The burden of proof applicable in the framework of the visa application under the Directive is
twofold:
Firstly, it is up to the visa applicant to prove that he is a beneficiary of the Directive. He must
be able to provide documentary evidence foreseen above as he must be able to present
evidence to support his claim.
If he fails to provide such evidence, the consulate can conclude that the applicant is not
entitled to the specific treatment under the Directive.
Additional documents may not be required regarding the purpose of travel and means of
subsistence (e.g. proof of accommodation, proof of cost of travelling), which is reflected in
the exemption for family members of EU citizens from filling in the following fields of the
visa application form:

Field 19: "current occupation";

Field 20:"employer and employer's address and telephone number. For students, name and
address of educational establishment";
Field 31: "surname and first name of the inviting person(s) in the Member State(s). If not
applicable, name of hotel(s) or temporary accommodation(s) in the Member State(s);
Field 32: "Name and address of inviting company/organisation";
Field 33: "Cost of travelling and living during the applicant's stay".

A Member State may require that the relevant documents are translated, notarised or legalised
where the original document is drawn up in a language that is not understood by the
authorities of the Member State concerned or if there are doubts as to the authenticity of the
document.

3.8. Refusal to issue a visa
A family member may be refused a visa exclusively on the following grounds:

the visa applicant failed to demonstrate that he is covered by the Directive on the
basis of the visa application and attached supporting documents under point 3.6
(i.e. it is clear that the reply to at least one of the three questions referred to above
is negative);
the national authorities demonstrate that the visa applicant is a genuine, present
and sufficiently serious threat to public policy, public security or public health; or
the national authorities demonstrate that there was abuse or fraud.
In the latter two cases, the burden of proof lies with the national authorities as they must be
able to present evidence to support their claim that the visa applicant (who has presented
sufficient evidence to attest that he/she meets the criteria in the Directive) should not be
issued with an entry visa on grounds of public policy, public security or public health or on
grounds of abuse or fraud.

The authorities must be able to build a convincing case while respecting all the safeguards of
the Directive which must be correctly and fully transposed in national law. The decision
refusing the visa application on grounds of public policy, public security or public health or
on grounds of abuse or fraud must be notified in writing, fully justified (e.g. by listing all
legal and material aspect taken into account when concluding that the marriage is a marriage
of convenience or that the presented birth certificate is fake) and must specify where and
when the appeal can be lodged.
The refusal to issue an entry visa under the conditions of the Directive must be notified in
writing, fully justified (e.g. by referring to the missing evidence), and specify where and when
an appeal can be lodged.

The handbook continues on:

4. FAMILY MEMBERS OF EU CITIZENS APPLYING FOR A VISA AT THE EXTERNAL
BORDERS
When a family member of an EU citizen, accompanying or joining the EU citizen in question,
and who is a national of a third country subject to the visa obligation, arrives at the border
without holding the necessary visa, the Member State concerned must, before turning him
back, give the person concerned every reasonable opportunity to obtain the necessary
documents or have them brought to him within a reasonable period of time to corroborate or
prove by other means that he is covered by the right of free movement.
If he succeeds in doing so and if there is no evidence that he poses a risk to the public policy,
public security or public health requirements, the visa must be issued to him without delay at
the border, while taking account of the guidelines above.

Then there is a second handbook, Handbook for the organisation of visa sections and local Schengen cooperation:

4.4. Direct access
Maintaining the possibility for visa applicants to lodge their applications directly at the
consulate instead of via an external service provider implies that there should be a genuine
choice between these two possibilities.

Even if direct access does not have to be organised under identical or similar conditions to
those for access to the service provider, the conditions should not make direct access
impossible in practice. Even if it is acceptable to have a different waiting time for obtaining
an appointment in the case of direct access, the waiting time should not be so long that it
would render direct access impossible in practice.
The different options available for lodging a visa application should be presented plainly to
the public, including clear information both on the choice and the cost of the additional
services of the external service provider (see Part I, point 4.1).

Source: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/visa-policy/index_en.htm

Final tip: Being in a relationship akin to marriage may also allow you to apply under Freedom of Movement for this free visa. The Dutch for instance will allow a Britton who is in a longlasting relationship with an unmarried Thai partner to apply under the Directive if you can show evidence of a long lasting and exclusive relationship such as by providing evidence of a joined household (habbitation) going back atleast 6 months.

Edited May 14, 2015 by Donutz