Wednesday 27 August 2008

Confusion about EU Directive

[Lady Sarah Ludford is one of the MEPs of the London constituency, where I reside. For various reasons, mostly my voting patterns, I regard her as my MEP]

To Lady Sarah Ludford,
to Lady Sarah Ludford's office,

My wife and I we have an issue with some truly unexpected side effect
of the implementation of an EU Directive, the 2004/38/EC.

Please read the attached document,

kind regards,
Alessandro Riolo

Dear Lady Sarah Ludford,

I am an Italian citizen, living and working in London since slightly less than 3 years, therefore I have yet to vote for the European Parliament elections in a British constituency, anyway as in the last local elections I participated I voted primarily for the LDP candidates, I would like to ask you to let me to regard yourself as my own MEP.

I have an issue with some truly unexpected side effect of the implementation of an EU Directive, the 2004/38/EC.


In this letter I will present the matter two times, first as a short story, then as a longer and more meticulous account. I believe my tale would have intrigued Kafka, and although I understand the need for concision, which I am going to fulfil with the shorter version, I feel necessary to retell it on its full breadth.

At the end of both narratives I have some personal requests for you.

The short story

My wife of 15 months is a Turkish citizen, legally residing in the United Kingdom since 10 months and a holder of a Residence Card for Family members of EEA citizens, valid for the next 5 years.

The Italian Consulate in London has refused to provide my wife with a Schengen visa to travel into the EU. They motivated their decision with the fact that Italy has implemented the EU directive 2004/38/EC, which should provide for freedom of movement for family members of EU citizens inside the EU, therefore now they are refusing to provide visas to EU citizens’ spouses holding a British Residence Card.

As my wife’s next travel should be in Spain, the Spanish consulate instead sadly told us that the British Residence Card is worthless as a visa, and that the Italian consulate should provide my wife with a visa.

The Italian Consulate retorted that they have their hands tied, this is some Italian Government’s authority decision, and that although aware of the issue, the only thing they can do is notifying the Spaniards of the issue.

This so far led us to a huge disservice, as being an Italian citizen I was expecting the Italian consulate to provide my wife with a visa in 24 hours of less, while the Spaniards can’t care less about me or my wife, and vaguely promised to end the visa process application in 6 weeks or some more.

Also, given that main destination country of my wife’s travels on any foreseeable period of time will be Italy, this may lead Spain to refuse to provide a visa to my wife, if not this time the next time she would need one.

The meticulous account

My wife is a Turkish citizen. We have been dating for more than 8 years, and we are married for 15 months. Since 10 months my wife is living in the United Kingdom thanks to a Residence Card for Family members of EEA citizens. This Residence Card will be valid for next 5 years.

Italian consulates around the world are supposed, due an Italian law, to provide Schengen visas to spouses of Italian citizens for free and giving priority to their requests. As per our own experience, it took the Consulate of Istanbul less than 24 hours to provide my wife with a multiple entrance type C Schengen visa valid for 1 year. At that time, they clearly stated to us that next year they would have provided my wife with a multiple entrance type C Schengen visa valid for more than 1 year (C2, C3 or C5).

This visa has now expired since a few months, and because my wife is now a lawful resident of the United Kingdom, we went to ask another visa to the Italian Consulate in London.

It was one of the greatest surprises of my life that they refused my wife a visa. Their point was that because my wife is now officially resident in an EU country and she has a British Residence Card, she should be able to travel at will inside the EU without the need of a visa.

This is looking great on paper, but sadly it is not true. My wife needed to travel in Spain, so we went to the Spanish Consulate to verify their viewpoint, and as we had feared, the Spaniards told us they regard the British Residence Card completely worthless as a visa, and that because I am an Italian citizen, we should be provided a Schengen visa from the Italian consulate.

Back at the Italian consulate, I had a very kind phone conversation with the Italian consul herself, who told me she was aware of the issue, but they had received precise orders by the Italian government not to issue visas to EU citizens’ spouses holding a British Residence Card. I asked her to tell me which law and which authority was exactly forbidding my wife to get a visa, she could not give me an exact reference at the moment, but in her answer she clearly stated it was due the implementation of the EU directive 2004/38/EC.

I couldn’t believe my ears. I have read that directive, and I know that it is supposed to improve the freedom of movement of EU citizens and their immediate family, not to restrict the concession of visas for the spouses of EU citizens.

Anyway, given that it was exceedingly obvious also from her apologetical tone that she had her hands tied, and after she told me we weren’t the only couple sharing this very same problem, that she had already voiced her concerns about this matter to the Italian government and that she was going to call the Spaniards to make them aware of the issue, I thanked her and I left the Italian consulate.

With my wife, we went to the Spanish consulate, we filled all the required forms and we gave them the various photocopies they asked us, and then they told us it will took them 2 weeks to send us an invitation to an interview, and afterwards it may took 4 weeks to get an answer on the concession of a visa.

As everyone may see, this is a far cry from the 24 hour we had expected to wait from the Italian consulate, and surely the Spaniards will not provide my wife with the multi-annual type C we were lead to believe we would have got.

Fascinatingly, this is also posing a conundrum: as everyone who has dealt with the Schengen visa application process knows, the application should be done to the consulate of the main destination country of the applicant’s travels, but in the case of my wife, given that the main destination of our travels in any length of time will surely be Italy, and that Italy would not give her a visa, it would also means that as long as my wife is not an EU citizen but is a legally acknowledged EU resident, she would never get a visa, and the only EU countries she could legally travel into would be Italy and the United Kingdom.

To solve this Gordian knot we had to write in the application for the visa that the main destination for my wife’s European travels is Spain, which is a very tenuous assertion at best.


I had the idea to write to you after applying for help to the Italian Solvit centre.

In their complaint form they were asking who I tried to contact to solve the issue. At that point I had only contacts with the Italian and the Spanish consulates, and desolately the consulates, in part for their own nature, are between the governmental agencies probably one the most removed from the taxpayers which are backing them.

As the issue at stake here is a basic pillar of the EU structure, the freedom of movement, I felt I had to try to contact the political arm of the EU.

I am not sure how much power, time and will a MEP has to deal with a case like this, but I would like you to appreciate that in this story my wife and I we are like two small terracotta pots between two very big iron vases. Any help, advise or even some simple suggestion would be greatly appreciated.

Although at this point I don’t have the precise references of which exact law or regulation or simple burocratic decision is forbidding the Italian consulates to provide my wife or any other EU citizen’s wife holding a British Residence Card with a visa, I can’t stop to think that it is completely paradoxical that my wife’s right to free movement inside the EU should be restricted by a truly short-sighted interpretation of the implementation of the very same EU directive that should enforce that very same freedom of movement.

Yours Sincerely,

Alessandro Riolo

Post Scriptum:

I may probably send to the some selected English media a slightly re-worked version of the longer account I gave you. As they are usually quite cold on EU related matters as such, I may try to warm up their interest adding some other details which are not really adding anything to the matter at stake, but that should give me some chance to attract their attention. If that will be the case, I will provide you with that version as well.


Kriek Jooste said...

Alessandro, I'm curious to know if you have had any success with Solvit on this issue.

I have a roughly similar issue, where I have a UK and Gibraltar residence permit as an EU dependent and my Schengen visa is about to expire. The honourary Italian consulate in Gibraltar doesn't want to accept my Schengen application until my old one has run out, and then they take 4-5 weeks to process it. That assuming they will even process it since I have residence permits already.

EU Direct, and the EU Directive, says I don't need a Schengen visa if I have a Gibraltar residence permit as a EU family member, but Gibraltar's residence permit makes no distinction between family members or work permit holders, so the Spanish border authorities have no way to know my status for sure. I still need to test them with my UK residence permit upon entry.

Alessandro Riolo said...

Dear Kriek,
Solvit people didn't replied me, not even an acknowledgment. I am thinking of complaining through the European Ombudsman against them, but first I will try to use some other Solvit centre (there is one for nation, perhaps it is only the Italian one which is not really well run).
As for my wife, your status of being resident in EU as a dependent of a EU citizen should give you freedom of movement in the EU, but the problem is to find the authority that should upheld this right.
In my wife's case it should be the Italian Republic, but they are refusing to do so. Italian consular authorities, after I was able to involve media and politicians, reluctantly helped my wife to get a 3 months Schengen Visa for Spain, but that's it, and they more or less already hinted the next time they will not help us anymore.
The point of contention for my wife is that the Spanish law which is implementing the 2004/38/EC Directive, the Real Decreto 240/2007, de 16 de Febrero, esplicitily states in the Artículo 4 that "La posesión de la tarjeta de residencia de familiar de ciudadano de la Unión, válida y en vigor, expedida por un Estado que aplica plenamente el Acuerdo de Schengen, de 14 de junio de 1985, [..] eximirá a dichos miembros de la familia de la obligación de obtener el visado de entrada y, a la presentación de dicha tarjeta, no se requerirá la estampación del sello de entrada o de salida en el pasaporte.".
As the UK only partially implements the Schengen Agreements, this clearly means that for the Spaniards the dependants of an EU citizen legally residents in UK need a Schengen visa to enter in Spain. As the Italian implementation law doesn't make this distintion, for the Italian authorities my wife is already able to freely travel in Italy, so they aren't going to provide her with a visa.
In your case, anyway, the Italian law seems to imply that you should be able to enter in Italy without a visa, just on the basis of your UK residence permit, and that if for whatever reason they ask you a visa, they should give your visa application priority against other applications, as the Articolo 5 of the Decreto Legislativo 6 febbraio 2007, n. 30 states that "2. I familiari non aventi la cittadinanza di uno Stato membro sono assoggettati all'obbligo del visto d'ingresso, nei casi in cui e' richiesto. Il possesso della carta di soggiorno di cui all'articolo 10 in corso di validità esonera dall'obbligo di munirsi del visto.
3. I visti di cui al comma 2 sono rilasciati gratuitamente e con priorità rispetto alle altre richieste."
The comma 3 is the important bit, for the priority of the visa application. Just to let you know, when my wife was not resident in EU, I successfully used that comma to have the Italian consular authorities to provide her a visa in less than 24 hours.

Kriek Jooste said...

Thank you Alessandro. At least now I know Solvit isn't always as effective as advertised.

It's been particularly helpful of you to quote the implementation of the directive in the Spanish and Italian legislation. It would have been hard for me to track this down. It also means there's no point for me to 'testing' the Spanish at the border, at least until they update their legislation.

It appears, like with many parts of the implementation of EU freedom of movement, each country makes little errors in incorporating it into their own law. Much of it comes from laziness. I think in the Spanish case their mistake is because they had the Schengen agreement already in their legislation, which the EU directive was originally based on, and they ended up leaving out a few crucial bits when updating this section according to the EU directive.

In Gibraltar, they just copied much of their law from UK law, but probably out of convenience decided to simply issue the same residence cards to EU family members as they do for work permit holders already, and not make a distinction.

The last 2 year Schengen visa I have received was from the German Embassy in London, but that was shortly before I got my UK EU family residence permit. This time it's getting interesting, and I suspect I'll have to fly in to London to get things done. I'll let you know what I've managed to do.