# My wifes Shengen visa is about to run out!!!!



## haza (Sep 1, 2015)

Hi there,

Another question on a different matter, in case anybody might have any clues:

I'm a British Citizen arried to an Ecuadorian Citizen, living here in Spain. We intend to apply for residency for my wife so we can stay, according to the EU legislation on EU citizens family members. 

The problem is wifes Shengen visa expires soon, the 23rd of December, and the appointment for my EU certificate (and the start of the process of securing my status here) which I must do before applying for my wifes residency, is not until the 25 of Februrary 2016! 

I was originally planning to apply for an extension for my wifes visa in order to keep her in Spain with a visa whilst we do all the paper work. I have now been told by a lawyer that this is not necessary. They told me very confidently that it does not matter if her visa expires, that as my wife she can not be 'kicked-out', as it were. The instructed me to simply wait and formalize my situation here and then apply for the residency.


This obviously is great news for us but I just wanted to see if anybody else out there had any similar experiences, if this sounds right or, worst case scenario....... completely inaccurate??


Any info/advie very much appreciated1


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## xabiaxica (Jun 23, 2009)

haza said:


> Hi there,
> 
> Another question on a different matter, in case anybody might have any clues:
> 
> ...


Once your wife's residency application is in process she can stay - but until then she has to comply with the Schengen rules

I'm not sure why your lawyer says that she can't be 'kicked out'. There are in fact cases where the residency application is refused, & the non-EU spouse is then not allowed to stay.

You say that your appointment isn't for a couple of months. When did you make that appt? If you made it as soon as you arrived, then if there were problems they might show leniency. 
You should at least try to make your wife's appointment before her Schengen visa expires. Once that is made she can stay.


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## haza (Sep 1, 2015)

xabiachica said:


> Once your wife's residency application is in process she can stay - but until then she has to comply with the Schengen rules
> 
> I'm not sure why your lawyer says that she can't be 'kicked out'. There are in fact cases where the residency application is refused, & the non-EU spouse is then not allowed to stay.
> 
> ...




Where we are in tortosa, taragona, there are very long waits in the comisaria here. I think it is because it caters to a lot of towns in the area and therefore a greater amount of people. Seems to be widely understood by people here that this is the situation.

The other thing is i did not make the appintment as soon as i arrived. it infact took me a little while to work out exactly what i had to do, which appointment i had to make, and when I asked at the comisaria they were not particularly interested in giving information.


as far as starting the application for my wifes visa, as i understand it, until i have formalised my status here and have my EU certificate, I cannot start the anything - its me first, then her, so to speak.



A difficult path to navigate because of such conflicting information - the lawyer in Barcelona told me over the phone in a very convicing manner that i did not have anything to worry about, but now it seems that this may not be the case. As I understand it, and have seen from your other comments you are well versed in these matters so I respect and am grateful for your information. I wonder if perhaps you could recomend an immigration lawyer at all that I could talk to?

If you do happen to know of someone and could pass me a number I would be very appreciative.


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## highway1962 (Dec 8, 2015)

hi haza, as a uk citizen married to an african and living in france, i have been through this process! your wife only needs a visa to enter the country legaly, she now has inherited your rights as a ue citezen who has excersised his right to free movement(DIRECTIVE 2004/38/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 29 April 2004) she is now safe from deportation, and is legal while you wait for the residence card, but do not leave the country before you get it, or you will have a problem getting back in; so relax!


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## haza (Sep 1, 2015)

highway1962 said:


> hi haza, as a uk citizen married to an african and living in france, i have been through this process! your wife only needs a visa to enter the country legaly, she now has inherited your rights as a ue citezen who has excersised his right to free movement(DIRECTIVE 2004/38/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
> of 29 April 2004) she is now safe from deportation, and is legal while you wait for the residence card, but do not leave the country before you get it, or you will have a problem getting back in; so relax!



Thanks very much for this information! After writing my last post yesterday got through to another lawyer yesterday who confirmed this too, that nce she's in they can't kick her out. So thas two lawyers and now yourself, can pretty much put that one to bed now - much appreciated.

A quick question: when you say not leave the country until she has to residency card, just want to clarify, does that apply to me to? If I leave before she has the residency card will they give me trouble? 

I'm guessing you're refering to my wife, but just wanted to be sure. Thinking of taking our daughter, who has a British passport, to the UK in jan/feb to visit for a few days. My wife will stay behind in Spain. Could this cause any problems, baring in my mind we still won't have applied for the residency card at this point?


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## liliana80 (Sep 6, 2014)

What the lawyer told you is correct, your wife will not be deported because she benefits from the Regimen Comunitario as the spouse of an EU citizen. For example:

"Cuando una persona es beneficiaria del régimen comunitario, es indiferente que se encuentre en España de forma irregular, porque precisamente la cobertura normativa del régimen comunitario alcanza a la persona por sí sola y la expedición de la tarjeta de residencia como familiar de ciudadano de la Unión es solo un documento declarativo o de reconocimiento de un derecho del que la persona, por su sola calidad de familiar de ciudadano de la Unión, ya es titular. Aunque si se puede evitar la irregularidad, mucho mejor." 

You asked if anyone had a similar experience, my visa was expired for 6 months before I applied for my residency card as I was waiting on documents from Canada. There was no issue at the extranjeria. 

In any case, it would be foolhardy to believe what some random strangers tell you on an internet forum over what a qualified immigration lawyer tells you.


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## haza (Sep 1, 2015)

liliana80 said:


> What the lawyer told you is correct, your wife will not be deported because she benefits from the Regimen Comunitario as the spouse of an EU citizen. For example:
> 
> "Cuando una persona es beneficiaria del régimen comunitario, es indiferente que se encuentre en España de forma irregular, porque precisamente la cobertura normativa del régimen comunitario alcanza a la persona por sí sola y la expedición de la tarjeta de residencia como familiar de ciudadano de la Unión es solo un documento declarativo o de reconocimiento de un derecho del que la persona, por su sola calidad de familiar de ciudadano de la Unión, ya es titular. Aunque si se puede evitar la irregularidad, mucho mejor."
> 
> ...




hahaha, yes you're quite right! Well i was originally told this by a lawyer but then you know how it is, somebody tells you something and it casts some doubt and then you start worrying, especially as this Xabiachica lady was saying that she knows of cases being rejetected.

Anyway thanks very much for that quote above, much appreciated and reassuring!


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## baldilocks (Mar 7, 2010)

Be aware that the authorities can and will fine you if you do not play by the rules. My suegra (US citizen) should have renewed her residencia within five years and went slightly over by about 6 weeks. - she was fined €100.


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## highway1962 (Dec 8, 2015)

you can leave and return to the country when you want, no problem, in theory your wife can leave and return providing her application for the residence card has been recorded, and issued with a receipt for the application, but many customs officials do not know the rules correctly, so she might have a problem re entering the country if she left, so it is safer for her to not leave before receiving the resident card, search for the eu lex site, which has all the rules for your situation; it will help you stop worrying!


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## kalohi (May 6, 2012)

haza said:


> hahaha, yes you're quite right! Well i was originally told this by a lawyer but then you know how it is, somebody tells you something and it casts some doubt and then you start worrying, especially as this Xabiachica lady was saying that she knows of cases being rejetected.
> 
> Anyway thanks very much for that quote above, much appreciated and reassuring!


But it isn't automatic that your wife will be granted residency. I also know of a case being rejected (a Spaniard married to a Cuban) based on insufficient income to support the family. Be sure to have all your ducks in a row when you apply!


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## xabiaxica (Jun 23, 2009)

kalohi said:


> But it isn't automatic that your wife will be granted residency. I also know of a case being rejected (a Spaniard married to a Cuban) based on insufficient income to support the family. Be sure to have all your ducks in a row when you apply!


exactly

the granting of residency for the spouse *isn't automatic 

*so please haza, don't think that it's a done deal

also, should your wife want to leave the country while her application is in process, she has to get special permission - there's another recent discussion about this


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## highway1962 (Dec 8, 2015)

the right to family life is enshrined in european law, and as an english person living in spain, you are protected by eu law and not national spanish law, the only reason an eu country can reject an application for residency for a spouse of a eu citizen is on grounds of public safety of a serious health risk to the public, the government is not allowed to set a minimun income as a requirement to get the resident card, proof of self employment or proof of any income no matter how smalll is all that is required; full details of the law are available at EUR-Lex - 02004L0038-20110616 - EN - EUR-Lex, anyone who has their application rejected for any other reason, has had it rejected illegally as my wifes was, but we challenged the decision in court and won, and the prefecture fined by the judge for abuse of power!


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## haza (Sep 1, 2015)

highway1962 said:


> the right to family life is enshrined in european law, and as an english person living in spain, you are protected by eu law and not national spanish law, the only reason an eu country can reject an application for residency for a spouse of a eu citizen is on grounds of public safety of a serious health risk to the public, the government is not allowed to set a minimun income as a requirement to get the resident card, proof of self employment or proof of any income no matter how smalll is all that is required; full details of the law are available at EUR-Lex - 02004L0038-20110616 - EN - EUR-Lex, anyone who has their application rejected for any other reason, has had it rejected illegally as my wifes was, but we challenged the decision in court and won, and the prefecture fined by the judge for abuse of power!



Ok thanks for this info, to everyone, very informative. As xabia chica says, im not out the woods yet it seems. I´m told that when it comes to it, should I do not have a job, the required amount I´d need in the bank is 8000 euros. This sound about right to everyone, or is it way out?


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## snikpoh (Nov 19, 2007)

haza said:


> Ok thanks for this info, to everyone, very informative. As xabia chica says, im not out the woods yet it seems. I´m told that when it comes to it, should I do not have a job, the required amount I´d need in the bank is 8000 euros. This sound about right to everyone, or is it way out?


The normally quoted figure is 6000€ in a Spanish bank - but that's per person.

Like everywhere in Spain, each office interprets the rules differently so 8000€ in your area may be correct.


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