Moving to Malta with my Non-EU Spouse (Visa Questions)

kenkenif wrote:

Thanks guys.

My wife doesn't intend on turning up without a visa. She will get a Schengen visa beforehand. There are less requirements for the Spouse of an EU National though and the proof of returning to your own country does't apply, neither do proof of funds, employment etc., as you are applying to join/accompany your spouse. All they require is proof of marriage, passports and travel insurance. As I understand it.

When issued with the visa we are both allowed to stay for 90 days within which time if work, self sufficiency or self employment are found I can apply for residency for my wife and myself on that basis.

Pleased to read that. I'm sure all will go well

smile2all wrote:

This visa issue was a big arugument on this forum sometime last week or so. People posted all wrong and imaginary information mostly taken from BEDTIME STORY BOOKS, I suppose.
Few of the post which were fact were chased out. Eventually it turned out to be useless to post anything right after that.

One thing is right though that you call up the Maltese embassy and get the corresct information.
Do not ask anyone anywhere else. 10 mouths 10 words!!!!!!!!!!!

smile2all - you do seem to have an axe to grind? Snide remarks as above are not what this blog is about, try lightening up a bit so that you don't come across as a very unpleasant person. Offer some concrete advice yourself instead of knocking those that are sharing their experiences - that is what this blog is about.

rooikat wrote:

smile2all wrote:

This visa issue was a big arugument on this forum sometime last week or so. People posted all wrong and imaginary information mostly taken from BEDTIME STORY BOOKS, I suppose.
Few of the post which were fact were chased out. Eventually it turned out to be useless to post anything right after that.

One thing is right though that you call up the Maltese embassy and get the corresct information.
Do not ask anyone anywhere else. 10 mouths 10 words!!!!!!!!!!!

smile2all - you do seem to have an axe to grind? Snide remarks as above are not what this blog is about, try lightening up a bit so that you don't come across as a very unpleasant person. Offer some concrete advice yourself instead of knocking those that are sharing their experiences - that is what this blog is about.

Concrete, cement or sand the sharing of the experiences/inexperiences here makes this blog confusing and unreliable. What if, instead of writing something wrong, a person just make a smiley or so and not insist of knowing things as you did yourself in your some other posts.
Don't you think a shoulder shrug would be better than tongue swag.
No hard feelings. Lighten up.

ricky wrote:

Hi smile2all,

I don't exactly know why you put so much trust in the Maltese embassy !

From personal experience I can tell you that even the guys at Castille ( former immigration department) did not know the relevant laws and had to be told (persuaded) to study the actual regulations. They made up their own interpretation!

10 mouths could even be 15 opinions and 'truths' ...-))) You are talking about Malta!

Nobody posted wrong information as every case  comes with a different issue and sadly, we get a lot of questions but not a lot of feedback as to how specific issues, often quite complicated,are dealt with.

Cheers
Ricky

Ohhh I'm a freelancer for the Maltese Embassy. 

No,Ricky this is not the case. I wouldn't trust the Embassies myself for certain data or other information.  But if you see the issue was quite a simple one and I wouldn't post unless I read some misleading input. And not to make the topic confusing I suggested that the Embassy needs to be consulted.
Even after posting hundreds  of right or wrong answers, the person for sure will call the Embassy.
Hope to not complicate things.
Cheers

rooikat wrote:

smile2all - Wow, you really are a nice person, so nice that I couldn't be bothered to reply to your sarcastic posts in future, have a good life if you can

Thanks for unsubscribing me from your broom-list.  I will enjoy my remaining life in peace.

ricky wrote:

Hi smile2all,

I don't exactly know why you put so much trust in the Maltese embassy !

From personal experience I can tell you that even the guys at Castille ( former immigration department) did not know the relevant laws and had to be told (persuaded) to study the actual regulations. They made up their own interpretation!

This is correct.  Some countries in the EU do not "want" non-EU immigrants (and even EU immigrants from some "lesser" countries) and so they do everything in their power to mislead or frustrate you.  It is not done out of ignorance, it is done on purpose.

So educate yourself on the law, and have copies of some of the case law pertinent to your situation on hand to show them that you are not ignorant of your rights. If they deny you a right, ask for the denial in writing because then you have proof and you can sue them for incorrectly following the directives.

In Kenkenif's case, the Surrinder Singh case comes to mind, among a couple others.

"Requirements for a visa (for family members of EU citizen)

For a visa to be issued on the basis of Directive 2004/38/EC, only the following requirements need to be satisfied:

The visa applicant is a direct “family member” of an EU citizen and has proof  (marriage or birth certificate or some combination) of the relationship)

The visa applicant will be travelling with, or joining, the EU citizen for a visit or permanent move to an EU member state.  (If they are going to the “home” country of the EU citizen, then there can be a requirement that the EU citizen had previously lived/worked in a different member state)

All travellers require a passport (or a national ID card for the EU citizen)

These are the legal requirements for all of the EU/EEA member states, including all Schengen members, the UK, Ireland, Romania and Bulgaria.  They also apply for Switzerland.

So, to get a Shengen Visa, all she needs is your marriage certificate and a passport.  Nothing else.

And to those people suggesting you have to show this or that or the other in order to get residency, hogwash!  You could travel to Malta with your wife with her having a Shengen Visa and have her "overstay" the Shengen Visa, have you never apply for a residence card, and both of you would STILL be legal.

Your rights as an EU citizen do not derive from an ID card that Malta issues.  They derive from the treaties and directives.

An ID card is "proof" of residency much like a birth certificate is proof of a birth, but the absence of a birth certificate does not mean there is no birth.  Likewise, the absence of a residence card does not mean you are not a legal resident.

Where a visa is required, “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.“

There is no legal requirement that:

The EU citizen is already (or will be) living or working in a different EU member state
The non-EU family member holds a specific immigration visa or status. It is fine for them to have a nationally issued visa or a student visa or a visitor’s visa or even implied status
The family member apply in their country of origin
The family member resides or previously resided in the EU/EEA  (This older requirement of some member states was overturned in several ECJ cases, especially Metock)
There is also no legal requirement that you submit:

bank statements
pay slips
letters from your present or future employer or school
letters of reference
proof that you will return at the end of the trip
airline tickets
confirmed hotel bookings
references or guarantees from people in the destination country
Please contact the European Commission’s free Solvit service if you have any problems or are required to provide these things.  If they can not help, you can easily make a complaint directly to the European Commission.

In the unlikely event visa application is rejected, there must be a detailed explanation given about the reasons for the rejection, and there is an clear appeal process that you will be told about.   The only four grounds for rejecting a visa application are:

public health (i.e. a serious contagious disease)
national security
(big) public policy
the marriage was done solely for getting the visa
They can not reject an application because you did not provide, e.g., a bank statement or hotel reservations.

Are you a direct family member of an EU citizen and you need to travel within Europe with your EU family member, but do not have a required visa?

If you have a “Residence Card” for a family member of an EU/EEA citizen, then you in most cases do not need a visa.  If you do not have this Residence Card, you may need a visa (depending on which passport you hold).

If you can get the visa in time for your travel, then do that!  It should be issued easily.  Travel is a lot easier if you have the visa and don’t need to worry.  See: Requirements for a short stay visa as family member of an EU citizen.   Also be sure to see the warnings at the end of this posting!

But non-EU family members of EU citizens have a fundamental right (coming from the EU treaties) to travel together with their EU family members to any of the EU member states, even if they do not have the required visa.  This right has been clarified and upheld in 2002 by the highest European court, the ECJ, in the case C-459/99 (MRAX vs Kingdom of Belgium), and has been incorporated explicitly into Directive 2004/38/EC.

C-459/99 (MRAX vs Kingdom of Belgium)

The operative part of the ECJ decision C-459/99 (MRAX vs Kingdom of Belgium) (summary PDF of MRAX decision, full text of MRAX decision) reads:

1. On a proper construction of Article 3 of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, Article 3 of Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services and Council Regulation (EC) No 2317/95 of 25 September 1995 determining the third countries whose nationals must be in possession of visas when crossing the external borders of the Member States, read in the light of the principle of proportionality, a Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health within the meaning of Article 10 of Directive 68/360 and Article 8 of Directive 73/148.

C-459/99 (MRAX vs Kingdom of Belgium)

The operative part of the ECJ decision C-459/99 (MRAX vs Kingdom of Belgium) (summary PDF of MRAX decision, full text of MRAX decision) reads:

1. On a proper construction of Article 3 of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, Article 3 of Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services and Council Regulation (EC) No 2317/95 of 25 September 1995 determining the third countries whose nationals must be in possession of visas when crossing the external borders of the Member States, read in the light of the principle of proportionality, a Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa , where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health within the meaning of Article 10 of Directive 68/360 and Article 8 of Directive 73/148.

Spiridonov wrote:

Stranger, your example is not applicable for topic starter question. You (with your husband) were travelling inside the Schengen Area (Austria-Malta). They should not even care about your visas (probably they double checked because of asylum seeker status only).

For topic starter it's different situation - his wife will ENTER the Schengen Area, so the visa question is the main point

In fact you are right. Spiridonov!!!!!!!
The wife holds a non-EU passport so she will not be allowed to enter Malta without a Schengen visa, no matter how much they try to convince the officers and inspite of all the articles and amendments etc.

Asylum seeker status perhaps is  totally a different situation but in normal case it is not possible to just skip.

No visa no entry PERIOD.