There appears to be confusion over the type of visa required for the Family Member of an EU Citizen who wishes to travel with or join her EU resident and subsequently reside in the EU. Firstly it must be pointed out that Family Members should not allow themselves to be forced to apply for residential visas or family reunification visas or tourist (Schengen type C or D visas) unless it is their wish to do so. (See 2.2.1 of COM2009 attached) Non-EU Family members of EU citizens enjoy the same rights as their partner considering entry and residence within the EU subject to the following; ENTRY INTO THE EU 1) The Non-EU may need an Entry Permit visa, which is given preferential treatment over that of a tourist visa. It must be issued free of charge. 2) The EU citizen needs to have exercised their rights of free movement under 2004/38/EC 3) The non-EU will need to provide notarised copies of both passports, a registered, authenticated, legalised and translated wedding certificate. 4) A notarised letter written by the EU citizen confirming that the non-EU citizen will accompany or join the EU citizen in the EU member state. SOURCE: https://eumovement.wordpress.com/2008/04/22/definition-of-family-member/ SOURCE: https://eumovement.wordpress.com/2007/04/15/requirements-for-a-short-stay-visa-family-of-eu-citizen/ RESIDENCE Family members are entitled to a Residence Card when the EU citizen is exercising treaty rights.* *The EU citizen will need to prove that he is financially active (employed, self-employed, retired, private income/savings) so as to prove that he and the non-EU partner will not be a burden on the host State. He will also need to show sufficient health cover for him and his family members. SOURCE: https://eumovement.wordpress.com/2011/05/30/it-is-all-about-the-eueea-citizen/ SOURCE: https://eumovement.wordpress.com/directive-200438ec/ ATTACHED: 2004/38/EC (English) The Freedom of Movement Directive. See Article 5 and 13 on page 3 and 5. Article 5 is explained in more detail on page 15 ATTACHED: COM2009-313(final) - Guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States Article 2 concerns the rights of family members ATTACHED: - CONSOLIDATED version of the Handbook for the processing of visa applications and the modification of issued visas based on: COM2010-1620 (EN) Section III (page 82) refers to family members and their preferential treatment. ************************************************************************************************ The Directives (plus the Spanish transpositions of such into Spanish Law) form the basis of my lawsuit against the Spanish Ministry of Foreign Affairs, and have been checked by my lawyers in order for the lawsuit to be launched against them. For that reason, I believe that my interpretation of the documents attached and the statements I have made in this post are correct, and not exclusive to other nations within the Schengen Zone. The information is given in good faith, and should be treated and used as such. My own experience is that Consular staff are poorly trained and unaware of the rights of Family Members of EU Citizens who have exercised their rights under the Directive. My advice would be to study the information provided which I believe will enable you to present a robust case for the issuance of an entry visa for your family member, and )as long as you meet the criteria so as not to be a burden on the state in which you plan to reside), ensure the issuance of a residence card for your family. I would recommend that you employ the services of a legal professional or agency, stressing that you wish to apply under the Directive, and not be fobbed off with a tourist visa, or forced into applying for a residential visa. PS: Family members have the right to work during the 90-day visa period. Tourist visa holders do not. ***********************************************************************************************
Thank you Chris for providing clear chapter and verse on the Law. However I would recommend readers also read my thread "Visa for Wives and Dependents Applying in The Philippines to Settle in Malta" which deals with the practicalities involved. You are absolutely correct when you say: BUT, in practice, we found this not to be the case. In the 9th post of my thread here, I write that Malta's Embassy in China had issued the wrong type of Visa to my son: a Type "C" Visit rather than a Type "D" Reunification. The CFO raised this as a major problem and only gave him his sticker under duress. The Malta Embassy agreed the Visa was incorrect and immediately reissued the correct one. Whilst a Filipino can enter Malta with a normal Schengen Tourist Visa, they will NOT be eligible for a Residency Permit and it will NOT be issued. The only Visa that will be accepted for Residency is the Type 4/Type D Family Reunification (or a work Visa). I accept that EU states may not be applying the law exactly as it is written and that procedures and requirements may differ across states, but it is surely better to comply with the requirements of one's chosen EU destination even if they appear to be at odds with the Directive so as to avoid costly (emotionally as well as financially) legal battles.
Hi David, 1) The visa should be issued at the consulate/embassy of the country of destination. It's worth remembering that there is no legal requirement for the applicant to make their application in their country of origin. SOURCE: here 2) Exercising your rights of free movement means that you have moved (or intend to move) to an EU state other than that of your origin. Reading the same source as the above answer states that: "There is no legal requirement that the EU citizen is already (or will be) living or working in a different EU member state."Of course, you would need to show, when asked that you can support you and your family members - no member state would be keen on allowing entry to a load of layabouts who are incapable of supporting themselves financially. 3) Actually, the answer is either. English and French are the working languages of the EU. However, I would suggest that it might be more diplomatic to have documentation translated into the language of the state to which you are applying. An email to the consulate/embassy of the intended country should result in a list of approved translators. 4) The thing to do is to write your letter in English, and then have your translator work their magic. ***NB re Translations. You will be required to use a Sworn Translator. They will affix a stamp or sticker to the document. These documents do not then require notarisation as the translator's stamp/sticker carries the same weight.
The point is, the Filipino would not be entering with a normal Schengen Tourist Visa, but with an entry permit as a family member. There's a fundamental difference between the two in that a tourist visa is not covered under the Directive 2004/38/EC Under the Directive, EU citizens have an absolute right to live and work in another EU member state for a period not exceeding three months. Then, after three months, they have the absolute right to continue to live in that EU state provided that they a) Are working, b) Self-Sufficient or c) Studying. Family Members have exactly the same rights as EU Citizens, no matter where they are from, by rite of the family link. I have attached a pdf which is probably the best explanation I've seen regarding the rights bestowed upon EU citizens and their family members by the Freedom of Movement Directive. It follows a logical path and is written in much less Legalese than other documents. I know that as Brits, it all seems too good to be true, especially when the UK rules are so draconian and expensive. But I would recommend that anyone considering moving to Europe first download this pdf, sit back with a cuppa and read it. We could bat the ball back and forward over the net for the next few weeks over this, but I can't stress strongly enough that Family Members cannot be prevented from joining or accompanying EU citizens who are exercising their rights and comply with the requirement not to be a burden on the host state. Please, if you wish to comment further, read the document attached before doing so.
Chris, yes I am aware of all that and agree that for us Brits, it makes pretty sobering reading. I don't know about you but I really don't want the hassle or unpleasantness that's bound to occur once you start challenging officials on points of law. Some officers of the Philippine Bureau of Immigration interpret the law differently often with criminal intent but a foreigner would be very foolish if he were to challenge them. We are, after all, seeking to be guests in their countries, they make the rules. One important issue that you may be over-looking is security. Should a country not be permitted to check into the backgrounds of those who choose to live there? This may not be such a problem for EU migrants exercising their Rights but what about their non-EU dependents? In the light of all the terrorist attacks in France, Germany and Sweden some of which, I read, investigators have attributed (in part at least) to the freedoms provided by the 2004 Directive. Those who apply for Type D Visas (for Malta at least) do have detailed background checks made and rightly so. My young son was just 2 years old but regardless of his age, the Maltese authorities still conducted background checks - which took about 3 days to complete - to ensure he wasn't a terrorist. Given that enlargement has taken place since 2004, getting all members of the Schengen Area to agree new Visa proposals is a nigh-on impossible ask. Regardless of what you or a strict interpretation of the law says, a non-EU national without a Type D Schengen Visa will not be permitted to reside in Malta nor visit for longer than 90 days without a Type C Schengen Visa.
