Entry into the UK with a family member residence card

[ca.funke]

Dear all,

>>the Commission decided to launch an infringement procedure against the UK<< concerning the (non-)acceptance of family member residence cards for entry into the UK.

Full timeline:

• On January 29th 2008 complaint against the UK filed.

• On January 30th 2008 the Commission acknowledged receipt and issued the following handling number SG/CDC/2008/A/1076.

• On April 04th 2008 complaint specified as follows:

Dear Madam or Sir,

I hereby specify my complaint against the UK:

Directive 2004/38/EC, Article 5, Section 2, (available >>here<<) states:

Family members who are not nationals of a Member State
shall only be required to have an entry visa
(...)
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.
(...)

The comissions' website clarifies this part as follows (it was written on their website in 2008, >>no longer<<):

YOU MIGHT BE REQUIRED TO HAVE AN ENTRY VISA

Family members holding nationality of certain countries, which are subject to visa obligation, may be required to have an entry visa.
(...)
Possession of the valid residence card, referred to in the relevant fact sheet, issued by any Member State, exempts you from the visa obligation not only in the Member State which issued the residence card, but in all Member States.
(...)

The UK has a different interpretation:

In the UK, 2004/38/EC is executed through SI 2006 No.1003. (>>available here<<)

[quote="SI 2006 No.1003, "Part 2" - Article 11 Section 2 Points a and b"](2) A person who is not an EEA national must be admitted to the United Kingdom if he is a family member of an EEA national, a family member who has retained the right of residence or a person with a permanent right of residence under regulation 15 and produces on arrival—
(a) a valid passport; and
(b) an EEA family permit, a residence card or a permanent residence card

For visiting-purposes, the UK always asks for the UK-issued "EEA-family-permit".

While the "residence-card" is listed, in practice only british "residence-cards" are accepted.

The UK should be prompted to change this, so "residence cards" of all memberstates are accepted, as demanded by the law.

In the current situation, the spirit of freedom intended by the directive is not unfolded.[/quote]

• On April 14th 2008 the >>Commission replied<<.
  • very short summary: We´ll deal with it.

• after that I continually asked for updates, but got nothing back

• On April 26th 2011 (no kidding, 3 (three) years later!) the >>Commission replied again<<.
  • very short summary: We´ll deal with it.
  • I fail to see what happened in the 3 years. To me the answers, although worded differently, sound pretty much identical.

• On July 10th 2011 I ask the Commission

---------- Original message ----------
From: Christian
Date: 10 July 2011
Subject: SG/CDC/2008/A/1076 --- Complaint against the UK
To: home-chap@ec.europa.eu

Dear Madam or Sir,
Dear Chiara Adamo,

on 28th March 2011 I enquired what is the current state of affairs concerning my complaint SG/CDC/2008/A/1076 against the United Kingdom, originally lodged 29th January 2008.

In this matter I would like to thank you for your reply as of 26th April 2011 (see >>here<<). In your reply you mention that the Commission "drew attention of the UK authorities" on the particular issue concerning Article 5(2) of Directive 2004/38/EC at a bilateral meeting on 5th July 2010, also mentioning that "infringement proceedings against the UK" might be considered...

Allow me to draw your attention to a letter I received from the Commission on 14th April 2008, thus about 3 (three) years before your current reply (see >>here<<): In this letter I was informed that the Commission contacted UK authorities on 27th March 2007 concerning the misinterpretation of Article 5(2) of Directive 2004/38/EC, and "does not find" "the UK authorities" "arguments convincing and envisages pursuing this particular point".


It would be enlightening to learn what happened, in this matter, between 14th April 2008 (first letter), and 26th April 2011 (second letter).

Thanks for any possible information, Regards,

• On July 11th 2011 the >>Commission replied<<.
  • very short summary: Infringement case opened...

Given the speed the Commission handles things I´m not overly excited, but at least it seems to be moving now...

[86ti]

I think the UK has now a few months to respond to the letter. The Commission will analyse the answers ('reasoned opinion') and then set a time limit within which the UK has to fix the problem. If they do not comply the Commission may decide to go to the Court of Justice. I believe the average processing time there is around 2 years.

See e.g. this for comparison.

[El shaddai]

Dear
ca.funke

I salute all your efforts and i hope the Almigthy UK will bow down and correct their mischievious and draconial laws.
Welldone !

[docteurbenway]

Finally great news!!!!!!

[skele]

I had the same problem and the EU kept telling me they were aware of it, had had meetings etc with the UK and were waiting for response. They never got back to me after the deadline so I went back to them and they couldn't tell me anything, it's a farce.

[Directive/2004/38/EC]

I had the same problem and the EU kept telling me they were aware of it, had had meetings etc with the UK and were waiting for response. They never got back to me after the deadline so I went back to them and they couldn't tell me anything, it's a farce.

I suggest you then complain to the EU's Ombudsman

[skele]

i've complained to everybody, no one's interested. I wrote to the UKBA five times, they won't even reply. I went to the British Embassy in Paris, three people told me to look at the website and the last person turned their back on me and walked away and the security guard came over.

[ca.funke]

...I went to the British Embassy in Paris, three people told me to look at the website and the last person turned their back on me and walked away and the security guard came over.

Had the same in Dublin. Luckily I had the chance to just go to the UK anyway, since there´s no checkpoints between ROI and the UK.

I was in the lucky position that I just went to the Embassy to see how silly they behave, like a field experience...

...however, I understand it´s utterly frustrating (and illegal).

Not the nicest thing to say, but I think there´s a parallel to the current riots: The laws and obligations of the state are ignored, and when the government are reminded of this fact (albeit in a disgusting way, I must say) the only answer to the violence is force.

Now, while I think this must be contained with force in the short run, the reply should at least be accompanied with some rhetoric as to "we know some stuff went wrong, which will be changed".

Nothing of that: Pure force, no discussion. This will contain it for a short while, after which it´ll erupt again, more powerful.

It´s like trying to put a lid on a volcano.

I´m not condoning anyting here, by the way. The difference is: explanation vs. justification.

That´s how I felt after leaving the Embassy in Dublin: I know I have a RIGHT, but it´s ignored and there´s nothing that I can do...

[docteurbenway]

Hello everyone,

i have to say that i am very optimistic after receiving the news that they are opening infringement procedures against the UK.

I mean look at Ireland, it was the same thing and now all works fine. The thing i do not understand is UKs position on the EU-Schengen situation.

The UK is an EU member, so they have to either play by the rules or exit. Yet they want to stay and complain and look for cracks in laws to exploit and then complain about the Schengen failing, even though they are not in it.

Whenever there is a debate, they are always there to criticize the EU policy and call it an invasion into their own sovereignty. I mean, please. It reminds me of a little child who breaks the TV set (in this case violates Directive 2004/38/EC) and then hides under the bed in his mother´s room thinking he is invisible and will not get caught.

I mean it is clear as day that at a certain point they will have to apply the directive in full and no skilled wording and grammar twists will reverse this. So why the hide and seek game? I do not know.

Same thing with CTA, in my opinion. The CTA is all about the British keeping some control over Ireland, even if it is just the 6 counties and for Ireland to pretend that it is united by having no physical border.

This very thing is cited as one of the reasons the UK and RoI do not wish to join Schengen. They prefer to have this pseudo historic virtual game and do things like that: http://www.europarl.europa.eu/meetdocs/ ... 051_en.pdf
to their own citizens, than to just apply the laws normally.

It is like going to a candy shop, putting your hand on a bar of chocolate and pretending you own it, even though you did not pay for it.

I agree with Christian, a right is a right, period.

[ca.funke]

i have to say that i am very optimistic after receiving the news that they are opening infringement procedures against the UK.

I mean look at Ireland...

the only thing that leaves me less optimistic is this: The UK, Ireland and the Commission had these talks at the same time, since Ireland and the UK were the only "problematic" countries in the EU.

Ireland gave in (when they understood that, in the long run, they are in a futile position), while the UK decided to take a stance (for whatever reason remains their secret).

In the long run I see two possibilities: Either the EU will disappear before this is solved (leaving any discussion futile), or it will eventually be solved, but the full court case and what-not that has to follow will take some time.

So, yes, the UK will loose this one, but for some reason that I don´t understand they´re playing on time...

[docteurbenway]

i have to say that i am very optimistic after receiving the news that they are opening infringement procedures against the UK.

I mean look at Ireland...

the only thing that leaves me less optimistic is this: The UK, Ireland and the Commission had these talks at the same time, since Ireland and the UK were the only "problematic" countries in the EU.

Ireland gave in (when they understood that, in the long run, they are in a futile position), while the UK decided to take a stance (for whatever reason remains their secret).

In the long run I see two possibilities: Either the EU will disappear before this is solved (leaving any discussion futile), or it will eventually be solved, but the full court case and what-not that has to follow will take some time.

So, yes, the UK will loose this one, but for some reason that I don´t understand they´re playing on time...

There is still one more outcome you forgot to mention, the UK might disappear before the EU does. The Scottish independence referendum is inevitable around 2014-2015.

[ca.funke]

There is still one more outcome you forgot to mention, the UK might disappear before the EU does. The Scottish independence referendum is inevitable around 2014-2015.

Hi docteurbenway,

I didn´t "forget" this - I really didn´t know at all!!

I have to say I´m thankful for this Info, really interesting!

Thanks again - rgds, Christian

[docteurbenway]

There is still one more outcome you forgot to mention, the UK might disappear before the EU does. The Scottish independence referendum is inevitable around 2014-2015.

Hi docteurbenway,

I didn´t "forget" this - I really didn´t know at all!!

I have to say I´m thankful for this Info, really interesting!

Thanks again - rgds, Christian

sure no problem. Here is a link if you would like to know more:

http://www.bbc.co.uk/news/uk-scotland-13323587

Lets hope that independent Scotland will take Ireland´s example and respect EU laws.

[ca.funke]

I directed a freedom-of-information request to the Commission.

Just trying to find out what the hell they did in the three years?!

I´ve never done this before, so I hope it´ll lead to something:

Dear Madam or Sir,

As per >>Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents << I hereby request access to all documents held by the Commission in

the following matter:

• On 29 January 2008 I filed a complaint against the UK (SG/CDC/2008/A/1076).
• On 11 July 2011 I received a reply from the Commission, informing me that an infringement procedure against the UK has been launched.
• The same letter mentions "written exchanges with the UK authorities".

Please provide:

• the mentioned "written exchanges", as well as all other documents held in this matter.

Details:

• Please provide all documents in their electronic form.
• Should this not be free of charge, please contact me before any costs accumulate.
• Should the documents be available in several languages, please provide me with the English and German version(s).

Formalities:

• Although I am not resident in the EU I am eligible for this request, since I am an EU citizen (Belgian and German, see Article 2).
• I am awaiting your prompt "acknowledgement of receipt" (as per article 7).
• Furthermore I am awaiting access to the electronic form of the requested documents within 15 days (as per article 7), thus not later than Wednesday, 14 September 2011.

Thanks and regards,

[MelC]

i have to say that i am very optimistic after receiving the news that they are opening infringement procedures against the UK.

I mean look at Ireland...

the only thing that leaves me less optimistic is this: The UK, Ireland and the Commission had these talks at the same time, since Ireland and the UK were the only "problematic" countries in the EU.

Ireland gave in (when they understood that, in the long run, they are in a futile position), while the UK decided to take a stance (for whatever reason remains their secret).

In the long run I see two possibilities: Either the EU will disappear before this is solved (leaving any discussion futile), or it will eventually be solved, but the full court case and what-not that has to follow will take some time.

So, yes, the UK will loose this one, but for some reason that I don´t understand they´re playing on time...

and there is still nothing happening, the commission is still "considering" and the UK still insist on the EEAfp "hybrid" whenever they can get away with it.

the commission seems more concerned that the UK issues "Vignettes" NOT stand alone residence cards as per the Directive.

the UKBA (and HO) stance is that as each EU state that has identity cards, and other residence "permits" and they all vary so much it is difficult to know which are genuine and which are fake, so they prefer people to apply for the EEA/fp so that there is no "problem" with their weird and wonderful RC at immigration.

[MelC]

I directed a freedom-of-information request to the Commission.

Just trying to find out what the hell they did in the three years?!

I´ve never done this before, so I hope it´ll lead to something:

Dear Madam or Sir,

As per >>Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents << I hereby request access to all documents held by the Commission in

the following matter:

• On 29 January 2008 I filed a complaint against the UK (SG/CDC/2008/A/1076).
• On 11 July 2011 I received a reply from the Commission, informing me that an infringement procedure against the UK has been launched.
• The same letter mentions "written exchanges with the UK authorities".

Please provide:

• the mentioned "written exchanges", as well as all other documents held in this matter.

Details:

• Please provide all documents in their electronic form.
• Should this not be free of charge, please contact me before any costs accumulate.
• Should the documents be available in several languages, please provide me with the English and German version(s).

Formalities:

• Although I am not resident in the EU I am eligible for this request, since I am an EU citizen (Belgian and German, see Article 2).
• I am awaiting your prompt "acknowledgement of receipt" (as per article 7).
• Furthermore I am awaiting access to the electronic form of the requested documents within 15 days (as per article 7), thus not later than Wednesday, 14 September 2011.

Thanks and regards,

have you had the Info yet?

[ca.funke]

have you had the Info yet?

Yep - should have posted the "overwhelming" reply:

...I regret to have to inform you that the documents you require come under the system of
exceptions provided for in the European legislation related to access to documents , and
that we cannot therefore provide them to you. The exception that applies to the
documents you requested is enshrined in Article 4(2) third indent of Regulation No
1049/2001, according to which:
"The institutions shall refuse access to a document where disclosure would undermine
the protection of:
-C),
-(...)
— the purpose of inspections, investigations and audits,
unless there is an overriding public interest in disclosure. '

Indeed, the categories of documents identified above concern an on-going infringement
procedure against UK, which, if disclosed, would undermine the protection of the
purpose of the investigation of compliance of UK legislation with Article 5(2) of the
Directive...

[EUsmileWEallsmile]

They don't appear to give out information on ongoing infringement cases. The wheels turn slowly, but appear to be turning.

What if the UK wins its argument?

[ca.funke]

What if the UK wins its argument?

How should they win their argument?

[El shaddai]

UK will never win any baseless argument. they either join the Plane or jump out of the Plane.

[EUsmileWEallsmile]

What if the UK wins its argument?

How should they win their argument?

The reason I asked this was not so much because I think they could win their argument, but that they must have some justification in law for their position. Logic would say that those without a defense would concede.

Perhaps it's to do with the rider in accordance with national law? I don't know, I'm just canvasing opinion.

[ca.funke]

The problem that I know of is the wording in Article 5, Section 2:

...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.

The last sentence is logically incomplete. It could mean:

1. ...shall exempt such family members from the visa requirement in the country that issued the residence card (UK´s interpretation) OR
2. ...shall exempt such family members from the visa requirement in all member states (general interpretation)

The Commission and the ECJ made it abundantly clear that they support version 2. The UK , however, say they signed up to version 1. As such they need an extra lesson from the Commission/ECJ to make them understand.

What I don´t understand is - if the Commission and the ECJ clearly mean and always intended version 1 - why don´t they change the wording of the law to make it clearer. After all, it wouldn´t really change anything.

See also >>here<<.

[EUsmileWEallsmile]

The problem that I know of is the wording in Article 5, Section 2:

...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.

The last sentence is logically incomplete. It could mean:

1. ...shall exempt such family members from the visa requirement in the country that issued the residence card (UK´s interpretation) OR
2. ...shall exempt such family members from the visa requirement in all member states (general interpretation)

The Commission and the ECJ made it abundantly clear that they support version 2. The UK , however, say they signed up to version 1. As such they need an extra lesson from the Commission/ECJ to make them understand.

What I don´t understand is - if the Commission and the ECJ clearly mean and always intended version 1 - why don´t they change the wording of the law to make it clearer. After all, it wouldn´t really change anything.

See also >>here<<.

The preamble in the directive is a little clearer (but not water-tight). (8) with a view to facilitating the free movement of family members who are not nationals of a member state, those who have already obtained a residence card should be exempted from the requirement to obtain an entry visa..."

It would defy logic that one who had already obtained a residence card for say the UK that demonstrating a right of residence there would not be allowed to enter without another separate re-entry visa for the UK. That would never have had to be written into the directive. It can therefore only mean option 2.

[ca.funke]

...those who have already obtained a residence card should be exempted from the requirement to obtain an entry visa...

Although I never read this, I think it leaves exactly the same ambiguity.

It would defy logic...It can therefore only mean option 2.

While I´m on your side, logic doesn´t seem to be what the Commission or any national politician uses lately. It´s all about being re-elected and/or appearing in the news with some important topic. 2004/38/EC covers very well what the masses need: Visa-free-travel and settlement for EU citizens. Niche-cases such as family-members aren´t interesting: No sizeable amount of voters to be won. No interest, no discussion, no change.

Unfortunately.

Now that SuperSarko wants to undo Schengen, we may need a completely new basis for all our arguments soon. Although I believe this to be empty election talk...

[MelC]

have you had the Info yet?

Yep - should have posted the "overwhelming" reply:

...I regret to have to inform you that the documents you require come under the system of
exceptions provided for in the European legislation related to access to documents , and
that we cannot therefore provide them to you. The exception that applies to the
documents you requested is enshrined in Article 4(2) third indent of Regulation No
1049/2001, according to which:
"The institutions shall refuse access to a document where disclosure would undermine
the protection of:
-C),
-(...)
— the purpose of inspections, investigations and audits,
unless there is an overriding public interest in disclosure. '

Indeed, the categories of documents identified above concern an on-going infringement
procedure against UK, which, if disclosed, would undermine the protection of the
purpose of the investigation of compliance of UK legislation with Article 5(2) of the
Directive...

typical.

the reason I asked specifically is that in Dec 2011 and Jan 2012 when i was in communication with Your Europe, they stated that the commission were commencing infringement proceedings....

i wondered where it was at, but i think its still at the to and fro of questions and answers....

much too slow?