What’s The Procedure To Appeal

[Phil_ne_uk]

Last Tuesday 24th October the Spanish embassy told me over the phone that they refuse my g/f family permit application. I have since emailed the consul with various extracts & links to websites referring to the European Parliament and Council directive 2004/38/EC. It’s taken since Monday to try to speak to the consul. Today I spoke to the visa officer (who I’ve spoken to many times now) to be told that the consul has read my email and the decision is still NO permit! He said we should come to the embassy to collect my g/f’s passport and the refusal.

I have contacted EUROPE DIRECT about this and they said the following.

(as a source of information, this link may be useful for other members experiencing problems. Phil)

EUROPE DIRECT.

Under Article 3 of Directive 2004/38, entry and residence into a Member State shall be facilitated for among others “ the partner with whom the Union citizen has a durable relationship duly attested. Currently, it is up to each Member State to identify how the relationship will be duly attested. In your case, the status letter should be regarded as strong evidence of attestation of your relationship. However, this is a matter which you will have to check with the Spanish immigration authorities or the Spanish Embassy or Consular Representative where you now live. Further information on entry and residence in the EU together with a listing of useful addresses is available on the following website: www.europa.eu.int/youreurope/

We intend to go to the embassy (yet again!) tomorrow and to appeal against their decision.

My question is. What exactly is the procedure for the appeal? Will she be given a form to complete there and then? I just want to be prepared to know what to expect. Any tips would be appreciated.

Thanks

Phil

[paully]

"Currently, it is up to each Member State to identify how the relationship will be duly attested"

Can't help with the appeal procedure itself, but this is clearly the nub of the problem for you, the Spanish deciding on which method they will accept despite other EU countries adopting other methods.

I should have thought that it is well within your rights for the appeal process and procedure (including forms) to be explained to you properly when you attend the Embassy tomorrow, and if I were you I would insist that they do so. Good luck.

[GU22]

"Currently, it is up to each Member State to identify how the relationship will be duly attested"

Can't help with the appeal procedure itself, but this is clearly the nub of the problem for you, the Spanish deciding on which method they will accept despite other EU countries adopting other methods.

Indeed. If the Spanish say that you have to have x,y and z and you've only got x and y, then I don't see much hope for you. Unless, as said to you before, you can show that the criteria you are being asked to meet are different from those a Spanish citizen in your position would have to.

As also said to you before, the provisions of European Parliament and Council directive 2004/38/EC that you refer to are about same sexed partners, not different sexed ones.

I know you said before

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

and that is your decision, and hers. However, if this is the same girl you were posting about living with in 2004, it would hardly be 'rushing', would it? To be frank, I can't understand why you don't simply marry her. You've been together for over 2 years and you want to move to Spain with her. Getting the marriage certificate would solve your family permit problems.

[Phil_ne_uk]

Thanks for your replies, however GU22 you are incorrect where you state

As also said to you before, the provisions of European Parliament and Council directive 2004/38/EC that you refer to are about same sexed partners, not different sexed ones.

Vinny & Scouse have also stated that the directive also applies to

( b ) the partner with whom the Union citizen has a durable relationship, duly attested.

as stated in the quote below relating to Article 3 of the directive 2004/38/EC

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.

If this directive only applies to same gay people, that would mean that "any other family members" as stated above at 2 (a) would have to be all gay! I don't think so.

In this post I was not asking about to whom the directive applies, I already know the answer thanks, from reading just about every post I could find relating to it on this forum.

I was merely trying to determine what to expect tomorrow regarding an appeal??

[GU22]

Thanks for your replies, however GU22 you are incorrect where you state

As also said to you before, the provisions of European Parliament and Council directive 2004/38/EC that you refer to are about same sexed partners, not different sexed ones.

The operative part of my statement is "that you refer to", as you seem to be basing your case on the parts relating to same sexed couples. Apologies if I have misinterpreted your previous posts.

(a) any other family members

Not relevant, she's not a family member (she would be if you married her).

( b ) the partner with whom the Union citizen has a durable relationship, duly attested.

Which is where your problem lies. It is up to each member state whether they place unmarried partners into this section, and what criteria have to be met to show the relationship is durable. If Spain does not accept that unmarried partners are in a 'durable relationship' then that's it, she wont get a permit; if they do but you don't meet their criteria then she wont get a permit.

Still, although I am spouting doom and gloom, I do wish you luck with this. I think you are going to need it.

[Phil_ne_uk]

I do wish you luck with this

Thanks for that GU22.

It's difficult to understand this directive, but have a look at this extract below.

The European Justice Commissioner Franco Frattini states in this link below,

“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”[/

[GU22]

“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”

Exactly.

This means that if the host country issues settlement visas to unmarried partners of it's own nationals then they have to issue family permits to unmarried partners of other EU nationals, using the same criteria to establish if the relationship is durable for both. This is what the UK does.

But if the host country does not issue settlement visas to unmarried partners of it's own nationals then they do not have to issue family permits to the unmarried partners of other EU nationals.

So, back to square one; does Spain issue unmarried partners of Spanish nationals with some form of settlement visa based upon the relationship? If they don't, then I'm afraid you haven't got a leg to stand on.

[Phil_ne_uk]

“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”

The above quote is broken down to Simplify the terminology for those who don't understand, as explained below.

"you can recognise marriages or partnerships only when the hosting country has similar provision"

Actually means that it's up to the individual country if their laws recognise the directive 2004/38/EC.

In those cases where there is no direct obligation to recognise

Above means, if the host country's laws don't recognise the directive, then,,,,,,,,,

"member states must facilitate entry and residence of partners in a durable relationship”

which is really self explanatory.

It's not really difficult to understand GU22

Edited November 2, 2006 by Phil_ne_uk

[GU22]

I think you have it wrong.

It all depends on how the Spanish government defines a durable relationship. If they don't accept that unmarried partners of their own citizens are in a durable relationship, then they do not have to accept that unmarried partners of other EU citizensare and issue family permits to them.

The UK have made it quite clear that they didn't have to bring unmarried partners into the EEA family permit provisions, but that they chose to.

For your sake, I hope I am wrong, but I don't think I am.

Still don't understand why, after over two years of being together, you don't just marry her and apply for an EEA family permit for her as your wife. Problem solved.

[Phil_ne_uk]

GU22, you said,

If they don't accept that unmarried partners of their own citizens are in a durable relationship

You can’t compare a Spanish citizen to my situation.

An EU citizen married to a Thai for example is entitled (without question) to a family permit for ANY of the EU countries EXCEPT their own. So the procedure for a Spanish person married to a Thai would I assume be similar to a brit applying for settlement in the UK where it’s NOT a right and has to go through interviews (on occasion) and producing all the documentary evidence as required when applying as well as a waiting period, 13 weeks I believe? For OTHER EU countries the permit should be issued without question or delay as an EU citizens RIGHT.

I have previously contacted the Signpost Service asking if my partner is entitled to a F P and they replied as follows

Under Article 3 of Directive 2004/38, entry and residence into a Member State shall be facilitated for among others “ the partner with whom the Union citizen has a durable relationship duly attestedâ€. Currently, it is up to each Member State to identify how the relationship will be duly attested. In your case, the status letter should be regarded as strong evidence of attestation of your relationship. However, this is a matter which you will have to check with the Spanish immigration authorities or the Spanish Embassy or Consular Representative where you now live.

I realise they said,

Currently, it is up to each Member State to identify how the relationship will be duly attested.

So they say my partner IS entitled to a F P but I cant get them to understand this or even to admit that it's up to them as to how the relationship should be duly attested!!

So I have contacted several EU bodies similar to the Signpost Service to complain, including emailing The European Justice Commissioner Franco Frattini himself who stated as below.

“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”

So I’m now waiting for a reply.

[GU22]

So they say my partner IS entitled to a F P

No, they don't.

They say that your partner is entitled to a FP provided you meet the requirements which the host state requires for your durable relationship to be duly attested. If the requirement of the Spanish government is that you are legally married, then your unmarried partner is not entitled to a FP. As your own quote says

this is a matter which you will have to check with the Spanish immigration authorities or the Spanish Embassy or Consular Representative where you now live.

You can’t compare a Spanish citizen to my situation.

The situation of a Spanish citizen in your position is relevant because your only hope is that you are being treated differently with regards to your relationship to the way the Spanish government would treat a Spanish citizen.

You can fire off all the e-mails that you like, but if the Spanish do not accept that unmarried different sexed couples, of any nationality, are not in a 'durable relationship, duly attested' then, to be blunt, you are merely p1ssing into the wind.

What you need to do is follow the advice already given to you by Europe Direct and "check with the Spanish immigration authorities or the Spanish Embassy or Consular Representative where you now live."

Have you done as they suggest?

Why not just marry her? It seems to me that you are more concerned about proving you are right and the Spanish embassy is wrong than you are about obtaining a FP for your partner.

Marry her and she'll get her permit.