Spanish Embassy Refused Family Permit

[Phil_ne_uk]

My girlfriend submitted her application for a family permit on 27th September at the Spanish embassy in BKK. It took one week for them to fax the ministry of foreign affairs in Madrid to enquire about the directive 2004/38/EC. I phoned them about 5 times since then and today phoned them yet again to be told that Spain does not accept common law husband & wife relationships for issuing family permits. I told the visa officer that I have shown him 3 A4 pages with information about the directive but he said that is what he has been told by the consul in his office and also by the fax received on Friday 20th from Madrid.

He also said that they can only issue a 90 day visa and suggested that maybe we could ask for residency if we went to Spain. Am I correct in believing that family permits/residency can only be issued to non EU citizens in their OWN country, in other words Thailand?

He said we would need to come to the embassy to collect my g/f passport. I asked what the next procedure is, did they have to give a written refusal. He said he didn’t know!

They’ve seen the information relating to the directive so how the hel_l can they refuse? What can I do now? Any ideas please?

Thanks in anticipation, Phil

[GU22]

Er, looking through the directive you have linked to, I find

Definitions

For the purposes of this Directive:.........

2. «family member» means:

A the spouse;

B the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a 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;

C 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;

D the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point B;

3. «host Member State» means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.

I see no mention of unmarried partners. As far as I'm aware item B refers to same sex partners who have registered what in the UK is called a Civil Partnership. Even if unmarried partners of the opposite sex were covered, it does say

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

If Spain doesn't recognise these partnerships as equivalent to marriage, then that is up to them.

I know that the UK treats the unmarried partner of an EU citizen the same as a married partner in this regard, but that doesn't mean that Spain has to.

Sorry.

Maybe I'm wrong, if so I hope someone with more knowledge of the Spanish immigration laws can advise you.

Apols, had to edit as the way the paragraphs were originally notated they came up as smilies!

Edited October 24, 2006 by GU22

[the scouser]

Para 2 of the directive states:

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:

and 2b stipulates those who are in a durable relationship duly attested.

The point here, though, is that under the terms of the legislation, the Spanish are only obliged to issue a family permit in this situation if their own national law recognises such relationships.

However, the application should be formally refused and a right of appeal given, unless, of course Phil wishes to take the visit visa option and chance his arm with the Spanish authorities once in Spain.

Scouse.

[vinny]

Scouse's quote is from Article 3, in full:

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.

[sting01]

Duly atteated ..........

The 'dully attested' thing differ from on country to another.

Once in France, one of my long term customer asked me to sign as witness a power of attorney (or something like that), the kind of semi private document stating something and supposed to be verified by 2 witnesses (I suppose anglo saxons readers get it, and maybe give us the right name).

In France, we do have those kind of semi private documents, called 'sous seing prive', who have legal value only when there is no other legal document and they are NEVER EVER considered as proofs of something, but as the start of a proof (commencement de preuve in french).

By so, there is no legal obligation for a french consulate to issue an familly visa for my gf IF one member of the staff have legitimate suspicions on the reality and the durability of the socalled 'free union' btw I and my gf. It sucks, I do agree, but that is.

Go legal, do a civil union that give de facto the same rights (and duties, maybe it is what is bothering you) as a marriage. Or apply for UK, then using Shengen move with your gf in Spain. But untill Spain and the rest of the estern continental europe adopt the anglo saxons laws, I do not think you can win that battle.

[Phil_ne_uk]

Thanks for your feedback guys. What I don’t understand is how different EU countries can have different rules. e.g. Let’s say for example that Germany recognises legal cohabitation and common-law marriage. That would mean that a Spaniard with a Thai common law wife could go to Germany to reside no problem. But a German with a Thai common law wife couldn’t go to reside in Spain! That’s crazy. Surely that would create an uproar. I thought that was the idea of the EU, equality?????

On this website http://www.uklgig.org.uk/Europe.htm#European_Developments It states,

NEW RESIDENCY RIGHTS – INCLUDING PROVISIONS FOR LESBIAN & GAY COUPLES – ARE IMMEDIATELY APPLICABLE DESPITE BEING IMPLEMENTED IN ONLY FIVE OF THE 25 EU COUNTRIES.

European Justice Commissioner Franco Frattini warned national governments that the law was “immediately applicable” – whether implemented or not. “For those member states that have not transposed, the directive applies immediately”, he told a press conference. “The provisions recognising rights will be immediately in force and are mandatory for all administrative authorities, in spite of non-transposition by member states, including municipalities”.

To date the legislation has only been enacted in Austria, Denmark, Slovenia, Slovakia and the UK, although measures are pending in France and Spain.

Included within the new package are new provisions for same-sex partners to demand that host countries without gay marriage laws carry out an investigation into the stability of their relationship. If the relationship is "real and durable" national authorities must "facilitate" entry and residence for gay partners of EU citizens.

I realise that this refers to same sex relationships, but surely this must also apply to heterosexual couples also. Otherwise it would be classed as prejudice to heterosexual couples?

The next paragraph also states that even if a host countries law doesn’t recognise cohabiting couples they still MUST facilitate entry and residence of partners in a durable relationship.

“The main provision is that you can recognise marriages or partnerships only when the hosting country has similar provisions”, said Frattini. “In those cases where there is no direct obligation to recognise, member states must facilitate entry and residence of partners in a durable relationship after a concrete assessment. This new provision will facilitate the situation of gay couples across Europe.”

So, am I correct or am I reading this all wrong?? If I am right, then who can I take this up with, any ideas please?

Cheers,

Phil

[GU22]

The regulations you quote are to stop discrimination against lesbian and gay couples where the non-EU partner is from a country that does not recognise gay marriage, what in the UK is called a civil partnership. I don't think it has any bearing on unmarried heterosexual couples for the simple reason that such couples could marry and so the non-EU partner would qualify for a family permit as the legal spouse of the EU partner.

The UK has chosen to treat the unmarried partner of nationals of other EU countries the same as the unmarried partner of a UK national. That is, if they satisfy the "living together in a stable relationship akin to marriage for at least 2 years" criterion then they will be treated as if legally married. Therefore the UK does not discriminate against the nationals of other EU countries as they are treated the same as a UK national.

For you to have a case, I think you need to establish what the position would be for a Spanish citizen in your situation. Would they be allowed the Spanish equivalent of an unmarried partners visa, or not. If not, then you are being treated no differently to the way a Spanish citizen would be.

Or, as suggested by sting01, you could marry her and then she would qualify for a family permit as your spouse.

[Phil_ne_uk]

As far as I understand, if an EU citizen is married to a Thai (or whatever other nationality) they have a RIGHT to a family permit for an EU country, but NOT including their own country. Thy have to apply and go through the usual procedures. So a Spaniard could go to France, Germany etc but it’s not as straightforward if he wanted to reside in Spain with his Thai wife. The same if I wanted to live back in the UK. It’s not a free permit or as straight forward as going to an EU country other than where you are a national. So I don’t think its possible to compare my situation with a Spaniard. Correct me if I'm wrong.

[GU22]

You misunderstand me, I think. The issue isn't whether a Spanish national legally married to a non EU national could get a Spanish settlement visa for their spouse, it's whether a Spanish national could get a Spanish settlement visa for their unmarried partner.

Yes, you are correct that an EU national may apply for a family permit for their partner to live in any EU country other than there own and, providing the accommodation and financial criteria are met, it has to be issued; provided that they are legally married.

The directives you have referred to earlier extend this same right to gay and lesbian couples, and because not all countries recognise same sex marriages then the requirement to be legally married does not apply.

However, the regulations neither include nor exclude unmarried partners of the opposite sex. The UK has chosen to extend this to unmarried partners because it does the same for the unmarried partners of British citizens.

Does Spain?

If a Spanish citizen could obtain a Spanish settlement visa for his or her unmarried, different sex partner then you could argue that they should do the same for the citizens of other EU countries. But if they don't, then I don't see that you have an argument.

Of course, if you were to marry your girlfriend then the Spanish would have to issue her with a family permit, provided you satisfied their accommodation and financial criteria.

[Phil_ne_uk]

I get your point. The question is, how the h*ll can I find out if a Spanish citizen could obtain a Spanish settlement visa for his or her unmarried, different sex partner?? Any ideas??

[GU22]

I think you gave the answer in your OP

Spain does not accept common law husband & wife relationships for issuing family permits.

However, to confirm this then you can either make further enquiries at the Spanish embassy, if your Spanish is up to it see if you can Google the Spanish immigration rules, hope that someone who knows the definite answer sees your post here or see if you can contact a Spanish immigration lawyer.

Or you could simply marry her; problem solved.

As you both, I assume, intend to live together permamently in Spain, or elsewhere, I honestly can't see why you don't. But it's your lives and your choice.

[Phil_ne_uk]

Thanks for the advice GU22. I don’t think I would get any sense from the Spanish embassy here in BKK. They wouldn’t even answer questions on the phone. I was told that I would have to visit their embassy to ask, and then he hung up on me!

Unfortunately my Spanish isn’t up to google’ing for the answer. Lol

You suggest contacting a Spanish immigration lawyer. I assume you mean in Spain?

I don’t really want to rush into marriage, especially just for the reason of obtaining a permit.

[sting01]

There is another solution :

Write to Bruxelles, your european deputy, and explain him you are considering the actual sotuation of you and your partner as a deny of the european rights.

Then you will get the true answer.

I also advice you the European Union is able to deliver passports (rare), so if you can proove the actual situation (refusal of visa on specious ground) you could bypass the national authority (Spain in that case) and directly get the Schengen Visa by the EU.

Technically it's possible. Pratically, well ... Cervantes described so well the fight of a man against windmill long time ago in La Mancha province.

Why I do not understand is :

Assuming your union is acceptable in UK, why not go to UK with a schengen visa for your partner, and then move to Spain with that visa? IS that possible?

And also, what is the big deal with the 3 month tourist visa? My wife was under a 3 month visa during 2 years (untill she got the french nationality), the only hasle being to go to the police station to have a renewal (made in less than 30 mn). So what the conditions to renew a tourist visa in Spain. Certainly comparable I suppose assuming the immigration policy of EU is directed against the NEW MIGRANTS, not those already here.

Anyway there is also those ways to try

[GU22]

Assuming your union is acceptable in UK, why not go to UK with a schengen visa for your partner, and then move to Spain with that visa? IS that possible?

The UK is not a Schengen state. If Phil and his partner came to the UK with a UK visit visa, or any UK visa, she could not use that visa to enter Spain. Neither could she apply in the UK for a Schengen visa for Spain, she needs to apply for that in her country of normal residence, Thailand. Finally, Schengen visas are for visits, not residence.

Settlement in the UK would not solve the problem, as she would still need a visa for Spain. Unless she were to stay in the UK long enough (5 years) to qualify for and then obtain British citizenship.

[sting01]

I can be wrong, but from my experience :

Legally marrie in 1997 with a non EU lady, my wife got only a tourist visa to go back with me. The visa whatever is usual for ENTER, and then somehow became irrelevant as then it's all about the PERMISSION to STAY.

In my case, under french law (maybe or maybe irrelevant in the case of Spain as I believe laws in both country arevery similar), my wife andI had to report we wished life together as couple (obvious but this general declaration allow the authorities to handle whithout much problem the case of husband with several wifes (mostly muslims)). At that point the choice given to my wife was or apply for a 10 years visa allowing her to stay and work on her own, or to renew the 3 month visa untill her application to became french was accepted. We choose the second option because she was de fact entitled to claim and have after some legal work the french citizenship (her father was a french civil servant, as her mother was, she was married and living in france). It took almost 2 years, but it was a very smooth and simple process (we went 3 times to the secretary of the tribunal).

On the other hand, a civil union even is considered as the most important proof of a real and natural need for 2 people to be together (homo or hetero couple) do not grant automatically a long stay visa. Mostly people applying with a civil union will get ( as my legal wife) a 3 month they will have to renew while being IN the country (in case of france the renewal is quasi automatic, but still the Police will ask your neiborought about your whereabout, your wife acting and so on ... And the renewal can be refused if the neiborought give negative feedback (such as the wife is receiving a lot of men ...).

In the EU, the main bottleneck is ENTER, when you are inside, things are far easy than in Thailand, mostly the hasle is to go to the police station or the cityhall to fill some papers, or if you do not handle well the language, a visit to a social worker will just do it. A visit to a social worker is that kind of case is always a necessity.

If noone of the proposed solutions fit the OP, then I invite him to contact his european deputy and ask him for help, maybe the fact to enter in spain with his common wife can be obtained directly by EU, and not by Spain.

But a 3 month should be okie, even in case of work. In Spain ,as in any continental countries of the EU, as long as you are LEGALLY enter , you are entitled to search a job and it's your boss duty (not yours) to do the paper work. In layman language, it mean the poster wife will be able to search, find a work and the nwork, as long as the boss report her as alien worker.