schengen visa

[MaprangHolmes]

My mother in law is coming to the UK in a few months on a visit visa for 4 months if we decided to go to say Spain during that time can she apply for a Schengen visa at the consulate in London? and would it be Free? (Her daughter will also be traveling with us, if that makes any difference) 

 

Thank you

[Jip99]

If your mother-in-law is Thai (and presumably traveling on a Thai passport) she must apply at the Spanish embassy in Bangkok.

 

 

It would not be free.

[7by7]

The usual rule is that Schengen visas should be applied for in the applicant's country of residence.

 

Qualifying family members of an EU national can apply for a Schengen visa anywhere, with minimal paperwork and no fee, provided they will be travelling with or to join their EU national family member.

 

But; parents in law are not normally counted as qualifying family members for visa purposes unless they are totally financially dependent upon the EU national and live in the same household.

 

Parents are qualifying family members, so if your wife has naturalised as British, and so is an EU national, they can apply in the UK whilst here as visitors. But be aware that the Spanish are notorious for ignoring the regulations when it comes to family members.

 

It is also possible to apply in another country if one has an urgent need to travel.

 

But personally I would follow Jipp's advice and get them to apply in Thailand before they leave.

 

Whether she applies in Thailand or the UK she will need to supply all the necessary paperwork and pay the fee; see the pinned Schengen visa topic; unless she does meet the requirements to be counted as your qualifying family member; and you can prove it.

 

[Donutz]

It depends, if your mother in law is dependant on you then she is covered by the EU Freedom of Movement Directive  2004/38.  So if she is financial depends on your support she is eligable for a free visa, issued ASAP and withim minimum hassle etc. This would also mean that she could apply from the UK as eligable applicants can ask for a visa from any relevant embassy in the world. 

 

The Handbook for embassy staff explains further:

------------------------------------------------------

" 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 "

-------------------------------------------------

Source: https://ec.europa.eu/home-affairs/sites/homeaffairs/files/policies/borders/docs/c_2010_1620_en.pdf

 

The questions however is:

- do the Spaniards see montlhy financial support as dependant enough. Assuming that she can't really live without support from you they should but Spain is known for making things overly diffcult by asking for more then they should (see sticky topic for what the legal requirements are) and an atmpophere of not being a huge fan of the Directive or even the Schengen Visa Code (trying to make people use VFS and denying direct access etc.) 

- Even if they would confirm that she is a dependant core family member, do the Spainiards in London play ball or would they wrongfully tell you that she needs to apply from BKK?  

 

I'd contact the embassy in London, explain your family relation and that she is a dependant and if they will let her apply from London or elsewhere in the UK. If they would work by the book they'd reply with "Sure senior, no problemo". If they answer something else you can see what seems a wise approach from there. Cooperate if they are just a bit silly or apply from BKK instead.  Know that you can apply for a visa no earlier then 3 months in advance of the date one intends to travel to the Schengen area so applying from BKK may or may not be an option. 

 

Edit: 7by7 replied while I was writing a reply. And indeed if she is not dependant on your support she is not eligable and would need to apply from BKK, pay a visa fee (and service fee if you don't apply directly via the embassy but via VFS instead) , bring the full set of documents for  regular application etc.  

[MaprangHolmes]

Thank you very much for the replies my wife does indeed have a UK passport so I would hope that as she is traveling also her mother will be able to apply for the VISA in the UK. The problem with applying in Bangkok would be she is coming to the UK at the end of April and we would not travel to Spain until the 15 July so going on you can not apply before 3 months of intended travel that would be very tight if they would allow the application in Bangkok and getting the passport back before the 30th April.

 

If you have any further information that would be really helpful.

 

Thank you  

[beano2274]

I had to prove my mother in laws dependancy on myself to try to get her a long term visa for Germany, we had to prove that the money we sent her was used to support her everyday needs, it was too much hassle, so decided to get her shorter stay visas.

 

I would phone the Spanish Embassy in London up and ask them if they would allow it, if not then she is going to have to apply in the Spanish Embassy in Bangkok, which is an ordeal.

[MaprangHolmes]

28 minutes ago, beano2274 said:

I had to prove my mother in laws dependancy on myself to try to get her a long term visa for Germany, we had to prove that the money we sent her was used to support her everyday needs, it was too much hassle, so decided to get her shorter stay visas.

 

I would phone the Spanish Embassy in London up and ask them if they would allow it, if not then she is going to have to apply in the Spanish Embassy in Bangkok, which is an ordeal.

Thank you for the reply, what I was hoping to do is use the fact the it is my wife's mother and as my wife is a UK citizen use that to make it that she is allowed to apply in London.

[7by7]

46 minutes ago, MaprangHolmes said:

Thank you very much for the replies my wife does indeed have a UK passport so I would hope that as she is traveling also her mother will be able to apply for the VISA in the UK.

 

As your wife is a British citizen she is also, like you, an EU national (at the moment!).

 

Parents are qualifying family members.

 

Therefore her mother should be able to apply in the UK.

 

Very little documentary evidence should be required, basically proof of your wife's British nationality and of her relationship with her mother, i.e. your wife's birth certificate. As this is, presumably, in Thai then she will also need a translation into an EU language (English is ok) which has been certified by the Thai MFA. She can do this in Bangkok; I don't know if she can also do it at the RTE in Kensington, maybe check with them.

 

The visa should also be free.

[MaprangHolmes]

31 minutes ago, 7by7 said:

 

As your wife is a British citizen she is also, like you, an EU national (at the moment!).

 

Parents are qualifying family members.

 

Therefore her mother should be able to apply in the UK.

 

Very little documentary evidence should be required, basically proof of your wife's British nationality and of her relationship with her mother, i.e. your wife's birth certificate. As this is, presumably, in Thai then she will also need a translation into an EU language (English is ok) which has been certified by the Thai MFA. She can do this in Bangkok; I don't know if she can also do it at the RTE in Kensington, maybe check with them.

 

The visa should also be free.

Thank you very much that is going to make things a bit easier, one thing that I expect is nothing really the surnames on my wife's birth certificate have changed obliviously my wife's has due to getting married and her Mothers has due to getting divorced and reverting back to her maiden name. Which is what she has used on her passport does that pose any sort of problem?

 

Thank you very much of all of your  help 

[7by7]

Provide a paper trail by supplying the relevant documents showing the name changes; with certified translations if necessary.

[MaprangHolmes]

I got an email back from the Spanish Consulate and they have said this ( Regarding your e-mail she has to apply in her country of residence (Spanish Consulate in Thailand). From what has been said this is incorrect is there any part of EU legislation that I can quote to them to get them to change there minds?

 

Thank you

[Donutz]

The very foundation of which all this is based is Directive 2004/38 on Freedom of Movement. It all comes down to the Member State concerned having to provide every facility to those who are covered by the directive with no mention of restricing this to certain consulates/locations. The normal Schengen Visa Code ( Regulation (EC) No 810/2009 ) which has such limitations/instructions does NOT apply.

 

1. In more simple terms it's explained here on the EU website here:

http://europa.eu/youreurope/citizens/travel/entry-exit/non-eu-family/index_en.htm

 

Quote

Applying for a visa

If your non-EU family members need an entry visa, they should apply for one in advance from the consulate or embassy of the country they wish to travel to. If they will be travelling together with you, or joining you in another EU country, their application should be processed quickly and free of charge:

• Countries which are members of the border-free Schengen area should issue visas within 15 days, except in rare cases, when the authorities should provide an explanation of their decision.
• All other countries (Bulgaria, Croatia, Cyprus, Ireland, Romania, UK) should issues visas as quickly as possible.

The documents your family members need to include in their visa application may vary from country to country. Before travelling, check which these are with the consulate or embassy of the destination country.

Visas issued by a country belonging to the border-free Schengen area are valid for all countries in that area.

(...)
 

Arriving at the border without an entry visa

It is always best for your non-EU family members to be well informed in advance and have all the necessary documents before starting their journey.

However, if they arrive at the border without an entry visa, the border authorities should give them the opportunity to prove by other means that they are your family members. If they manage to prove it, they should be issued with an entry visa on the spot.

If your family members are having difficulties getting a visa, you can contact our assistance services.

 

The point here being that nowhere does it specify that family members who are eligable under Directive 2004/38 need to go to a specific embassy (rules for regular aliens are different, they can't apply at any relevant embassy that they like), and that one could even get a visa at the border (which isn't the case for regular applications either). True enough, here it is not explicitly mentioned that you can apply from anywhere so let's dig deeper.

 

2. The Handbook on EU Home Affairs:

https://ec.europa.eu/home-affairs/sites/homeaffairs/files/policies/borders/docs/c_2010_1620_en.pdf via https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/visa-policy_en

 

Quote

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 specialis19 20 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". However, provisions of the Visa Code that would affect the rights of family members of EU or Swiss citizens as provided for by the Directive, do not apply to these categories of persons either, e.g. the requirement set by Article 12 c) according to which a travel document should not have been issued more than 10 years prior to the visa application.

(...)

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. And the Directive:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF

Quote

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.

(...)

Article 5

Right of entry

1. Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport. No entry visa or equivalent formality may be imposed on Union citizens.

 

2. Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement. Member States shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.

 

3. The host Member State shall not place an entry or exit stamp in the passport of family members who are not nationals of a Member State provided that they present the residence card provided for in Article 10.

 

4. Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence.

 

5. The Member State may require the person concerned to report his/her presence within its territory within a reasonable and non-discriminatory period of time. Failure to comply with this requirement may make the person concerned liable to proportionate and non-discriminatory sanctions

 

And as a bonus, this on dependant family members:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0313:FIN:EN:PDF

 

Quote

2.1.4. Dependent family members

According to the case-law14 of the Court, the status of ‘dependent’ family member is the result of a factual situation characterised by the fact that material support15 for that family member is provided by the EU citizen or by his spouse/partner. The status of dependent family members does not presuppose a right to maintenance. There is no need to examine whether the family members concerned would in theory be able to support themselves, for example by taking up paid employment.

 

In order to determine whether family members are dependent, it must be assessed in the individual case whether, having regard to their financial and social conditions, they need material support to meet their essential needs in their country of origin or the country from which they came at the time when they applied to join the EU citizen (i.e. not in the host Member State where the EU citizen resides). In its judgments on the concept of dependency, the Court did not refer to any level of standard of living for determining the need for financial support by the EU citizen16.

 

The Directive does not lay down any requirement as to the minimum duration of the dependency or the amount of material support provided, as long as the dependency is genuine and structural in character.

 

Dependent family members are required to present documentary evidence that they are dependent. Evidence may be adduced by any appropriate means, as confirmed by the Court17. Where the family members concerned are able to provide evidence of their dependency by means other than a certifying document issued by the relevant authority of the country of origin or the country from which the family members are arriving, the host Member State may not refuse to recognise their rights. However, a mere undertaking from the EU citizen to

support the family member concerned is not sufficient in itself to establish the existence of dependence. In accordance with Article 3(2),

 

Member States have a certain degree of discretion in laying down criteria to be taken into account when deciding whether to grant the rights under the Directive to "other dependent family members". However, Member States do not enjoy unrestricted liberty in laying down such criteria. In order to maintain the unity of the family in a broad sense, the national legislation must provide for a careful examination of the relevant personal circumstances of the applicants concerned, taking into consideration their relationship with the EU citizen or any other circumstances, such as their financial or physical dependence, as stipulated in Recital 6. Any negative decision is subject to all the material and procedural safeguards of the Directive. It must be fully justified in writing and open to appeal.

 

2.2. Entry and residence of third country family members

2.2.1. Entry visas

As provided in Article 5(2), Member States may require third country family members moving with or joining an EU citizen to whom the Directive applies to have an entry visa. Such family members have not only the right to enter the territory of the Member State, but also the right to obtain an entry visa18. This distinguishes them from other third country nationals, who have no such right.

 

Third country family members should be issued as soon as possible and on the basis of an accelerated procedure with a free of charge short-term entry visa. By analogy with Article 23 of the Visa Code19 the Commission considers that delays of more than four weeks are not reasonable. The authorities of the Member States should guide the family members as to the type of visa they should apply for, and they cannot require them to apply for long-term, residence or family reunification visas. Member States must grant such family members every facility to obtain the necessary visas. Member States may use premium call lines or services of an external company to set up an appointment but must offer the possibility of direct access to the consulate to third country family members.

 

As the right to be issued with an entry visa is derived from the family link with the EU citizen, Member States may require only the presentation of a valid passport and evidence of the family link20 (and also dependency, serious health grounds, durability of partnerships, where applicable). No additional documents, such as a proof of accommodation, sufficient resources, an invitation letter or return ticket, can be required.

(...)

3. RESTRICTIONS OF THE RIGHT TO MOVE AND RESIDE FREELY ON GROUNDS OF PUBLIC POLICY OR PUBLIC SECURITY

This section builds on the Communication of 199931 on the special measures concerning the movement and residence of EU citizens which are justified on grounds of public policy, public security or public health. The content of the 1999 Communication is still generally valid, even if it refers to Directive 64/221, which was repealed by Directive 2004/38. The purpose of this section is to update the content of the 1999 Communication in the light of the recent case-law of the Court and to clarify certain questions raised during the process of the implementation of the Directive.

 

Freedom of movement for persons is one of the foundations of the EU. Consequently the provisions granting that freedom must be given a broad interpretation, whereas derogations from that principle must be interpreted strictly32.

 

 

[Donutz]

So the EU/EEA member state must grand every facility, and limiting access to certain consulates/facilities sure ain't in compliance with that. You won't find any restrictions in Directive 2004/38 that either requires a certain residence or visa status (or any legal status at all) as a requirement. Neither will you find requirements that beneficiers of the Directive must apply from their country of origin.

 

No, all it demands is a legal and genuine marriage, ID of those eligable people involved (ie: alien and EU national) and ofcourse showing that the the directive applies (family relation as explained, traveling/joining the EU national). 

 

If the staff can't figure that out anymore you may wish to contact Solvit (via 'need assistance/help' on the EU page on traveling with family). You could also share your experience with EU Home Affairs though they are not directly involved and a reply may take weeks. However confirmation from Brussels may help in persuading the embassy and Brussels can use the experience of EU citizens when all members are at the table and talking about the EU. Brussels isn't too  happy if members neglect the rules, in particular corner stones of the Union, which all members signed for.

[MaprangHolmes]

After a few more emails back and forth the consulate is now saying this (One main requirement is the need to have a UK residence permit at the moment of the application.  If your mother does not live in UK she cannot apply at this Consulate.)

 

Does anyone have any ideas on how I can approach this with the consulate? 

 

[Donutz]

21 minutes ago, MaprangHolmes said:

After a few more emails back and forth the consulate is now saying this (One main requirement is the need to have a UK residence permit at the moment of the application.  If your mother does not live in UK she cannot apply at this Consulate.)

 

Does anyone have any ideas on how I can approach this with the consulate? 

 

That's obviously false, and at the very least they should know that a UK short stay visa would also be just fine (and even without visa they'd still need to provide every facility).

 

Try copying the relevant text(s) above with a CC to the European Commission: JUST-CITIZENSHIP {at} ec.europa.eu 

 

Perhaps they feel more inclined to abide the rules or letting a more propeely trained embassy staffer look at this if they see that you contacted Brussels.

 

 

And in addition contact EU ombudsman Solvit via 'need help' via the button at the bottom of the EU webpage on traveldocuments for EU family. 

 

They really ought to know better at the embassy, these rules have been around for years so there is not really any excuse.

 

edit: perhaps formulate the e-mail as a question. After having pointed out that the member state needs to provide every facility, which minimal of things are required and that there is no rule in Directive 2004/38 requiring legal residency plus that getting a visa from TH will be next to impossible, ask them where they base there claims on... And EU Home Affairs may just comment on that question too.

[mgb]

The problem is article 2 section 2 letter d of the directive.

2)
"Family member" means:
.
.
(d)
the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

 

I read here "dependent".

[7by7]

The OP's wife is a British citizen, therefore her mother is a direct relative in the ascending line of an EU national.

[mgb]

The direct relative in ascending line has to be dependent to be counting as family member in the sense of the directive.

[Donutz]

Indeed, but I assume Holmes is very much aware of that since this has been pointed out to him in several posts. It's also quite common for Thai to support their retired parents due to a social wellfare hardly being worth the name, leaving many elderly parents to rely on monthly support from their children to get by. If the Holmes family sent the Thai parents say 100 GBP a month it would only be reasonable to accept this as 'dependent'. Though a less enthousiastic embassy may still wish to argue the case (wrongfully so if indeed the parents receive this support as an important contribution to their income to get by,  as also pointed out by the bit I quoted from an EU manual:  "2.1.4. Dependent family members'' ). 

[mgb]

Simply saying the parent is dependent doesn't help. You have to prove it.

[Donutz]

I'm sure that Holmes has copies of a bankbook showing regular money transfers from him and/or his wife to the parents. If also including evidence of the income of the parents (copy of the parents bankbook) it should be pretty clear pointing out essential, structural and genuine support.

 

Edit: And providnig such information, any reasonable embassy who properly applies the rules could do the simple math and see that these structural money transfers are quite and important part of the parents income. Perhaps they ask for a bit more which could be very reasonable and any citizen would abide that if it's not a lot of hassle to provide the requested information. Now ofcourse if you have a less enthousiastic embassy who would want to have a ton more info, then yes you're in for a struggle dealing with an embassy that asks for more than they should/can. At which point contacting Solvit and such may be helpful.

[MaprangHolmes]

Thank you again for the replay I got this email back from the Spanish Consulate:

 

Dear Sir,

 

                We have to insist. At this consulate every applicant need a residence permit in UK to apply for a Schengen VISA , including those who are relatives of European citizens.

 

Kind regards

 

A.G.

 

So emailed   JUST-CITIZENSHIP {at} ec.europa.eu  and got his reply, which if I am honest I can not make any sense off. 

 

Dear Colleagues,

 

This might be for you as it concerns general rules set out in the visa code.

 

Many thanks,

Kind regards,

 

 

Marina Demolin

DG JUST

Unit D3 - Citizenship

 

Anyone got any other ideas? If she was to apply at the embassy in Bangkok say around the 1st April the intended travel date would be 15 July do you think they would issue you it as it would be a bit over applying 90 days before I want it to start. They could start it from the 1 July and run until the end of July if they wanted to be really helpful but after trying to deal with the Spanish consulate I do not expect much help from them!

[yannic]

I would apply for a Schengen visa at the Spanish Consulate and stop sending emails back and forth.

[Donutz]

Well that embassy seems to wrongfully refusing to apply every facility to family members of EU/EEA nationals and rather applying the rules of a regular application under the Schengen Visacode. I do hope that the EU forwarded the messages to their colleagues and not accidently having pressed 'reply' instead of 'forward'.  I'm gign to assume that whichever EU person sees this will know that the |Visacode does not apply here (other than on how to make a visa sticker etc. but instead Directive 2004/38 applies here).

 

All you can do is wait for EU Home Affairs and Solvit.  Or if you want to take some more shots, also contact Madrid (MFA) or the EU delegation in the UK.

 

Or you can see how the BKK Spanish embassy reacts if you tell them your scedule. Might be too small a marging left if they also throw a fuss in BKK (which they are notorious for doing so!)...

[mgb]

4 hours ago, MaprangHolmes said:

Anyone got any other ideas?

A schengen visa can be applied 3 month in advance of the planed travel date.
If you can prove the dependency of your mother in law you could apply for a visa for a family member of a eu citizen via the schengen application form in BKK.

Example:
Mark other at field 21 at the application form and write family member eu.
Field 24 mark multi entry.
Field 25 the number 90 for 90 days
Field 29 1. june 2017
Field 30 add 179 days giving 27. September 2017

That would give a visa valid from 1. june to 27. september for 90 days in this period.
   

[MaprangHolmes]

7 hours ago, yannic said:

I would apply for a Schengen visa at the Spanish Consulate and stop sending emails back and forth.

How do you apply at the Consulate when they are refusing to process the application or make an appointment?

[mgb]

On 11.1.2017 at 8:47 AM, MaprangHolmes said:

So emailed   JUST-CITIZENSHIP {at} ec.europa.eu  and got his reply, which if I am honest I can not make any sense off. 

 

Dear Colleagues,

 

This might be for you as it concerns general rules set out in the visa code.

 

Many thanks,

Kind regards,

 

 

 

If you want you can ask them what they think about article 134 schengen convention.

Article 134

The provisions of this Convention shall apply only in so far as they are compatible with Community law.

The directive 2004/38 is community law.

[MaprangHolmes]

This is a reply from the  EUROPEAN COMMISSION
 

Thank you for your message of 9 January 2017 in which you raise questions about the
procedures for applying for a visa in London by your mother who is a Thai national.
Regulation (EC) 810/2009 of the European Parliament and the Council establishing a
Community Code on Visas (the Visa Code)1 sets out the procedures and conditions for
issuing visas for transit through or intended stays in the territory of the Member States of
no more than 90 days in any 180 days period.
Visa applicants neither have a free choice of where to apply for a visa nor with which
Member State they apply. The applicant must apply for a visa in his or her place of legal
residence (Article 6(1) of the Visa Code). In your mother's case that would be in
Thailand. According to the information in your message, she is now legally present in the
United Kingdom for a visit.
The Directive on free movement (EC/2004/38) does not contain any provisions regarding
consular territorial competence, so therefore the general rules of the Visa Code apply. A
Member State may deviate from the general rule and examine an application lodged by a
third country national legally present by not residing in its jurisdiction, if the applicant
has provided justification for lodging the application at that consulate. The consulate
concerned is competent for assessing with the justification is acceptable.
Finally, the Directive does not seem to apply in your mother's case. Article 2(2) refers to
"dependant directly relatives in the ascending line...". Based on the information that you
have provided, it does not appear that you mother is dependent on you. For further
guidance on this issue, we refer you to the guidelines set out in the Commission
Communication COM(2019)313 final.2
Yours sincerely,
 

 

So she is going to have to apply in Thailand, I am unsure if she will be able to apply as a family member there or not, but the real problem I can see is that in reality the latest she could apply would be the 1 April. She would not be traveling until the 15 July so that would be longer than the 90 day application period. As it is the Spanish Embassy I do not see that they are going to help too much but we will just have to see how strict on that rule they are or of they can start the visa earlier.

 

If anyone has any ideas about this then please do say. 

[Donutz]

"The Directive on free movement (EC/2004/38) does not contain any provisions regarding
consular territorial competence, so therefore the general rules of the Visa Code apply."

 

Indeed it does not contain such exact instructions. It does however instruct the member state (without specifying any limitations on where can or cannot apply)  to provide EVERY facility. Limiting applications to a certain embassy/location is a limitation, not providing every facility.

 

More over freedom of movement takes presidence over the Schengen Code on Visa so those instructions in the SCV do not apply except for the general instructions. It too does not specify with bits of the SCV do or no not apply to freedom of movement. While  EU Home Affairs it self makes clear that for instance processing times should take no longer than 15 days (two weeks) except in the most exceptional of circumstances and even then all should be done ASAP (so not the absolute maximum of 60 days as per SCV).

 

I also do not understand how your mother would not be eligable under the directive as a direct family member in the ascending line who depends on your monthly support in order to have a reasonable income to get by.

 

But how to proceed? Well, either 1) give, 2) try to explain once more why they are wrong (escalate it) in or 3) contact legal advice. A solicitor specialist on freedom of movement may be able to help out. I don't know what else to tell you except for the info and links me and others (MGB) provided so far. 4) Move your holiday to an other Schengen state, one that is not a total c*nt about this.

[mgb]

Article 5 of the directive 2004/38 give the right of entry for family members.
Article 134 of the schengen convention exclude provisions which are not compatible with community law.
Therefore the visa code article 6(1) is not applicable for family members of eu citizen.

The right of entry cannot be denied because the family member is not staying in his home country.