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EU Schengen handbook
PART III: SPECIFIC RULES RELATING TO APPLICANTS WHO ARE FAMILY
MEMBERS OF EU CITIZENS OR SWISS CITIZENS
Legal basis: Visa Code, Article 1 (2) (a) and (b )
Under Article 21 of the Treaty on the Functioning of the European Union, every European
Union citizen has the right to move and reside freely within the territory of the Member
States, subject to the limitations and conditions laid down in the Treaty and by the measures
adopted to give it effect. These limitations and conditions are set out in Directive
2004/38/EC14 on the rights of Union citizens and their family members to move freely within
the territory of the Member States.
The right of free movement of EU citizens would not have any useful effect without
accompanying measures guaranteeing that this right is also given to their families. Therefore
the Directive extends the right to free movement to family members of EU citizens. Article 5
(2), 2nd sub-paragraph of the Directive provides that "Member States shall grant [family
members covered by the Directive] every facility to obtain the necessary visas. Such visas
must be issued free of charge as soon as possible and on the basis of an accelerated
procedure.".
As Directive 2004/38/EC represents a lex specialis15 16 with regard to the Visa Code, the Visa
Code fully applies where the Directive does not provide an explicit rule but refers to general
"facilities".
(....)
3. SPECIFIC DEROGATIONS FROM THE GENERAL RULES OF THE VISA CODE
This point provides for operational instructions concerning the specific derogations from the
general rules of the Visa Code that are to be applied when it has been ascertained that the visa
applicant falls under the Directive and that there is no exemption from the visa requirement.
3.1. Visa Fee
No visa fee can be charged.
3.2. Service fee in case of outsourcing of the collection of applications
As family members should not pay any fee when submitting the application, they cannot be
obliged to obtain an appointment via a premium call line or via an external provider whose
services are charged to the applicant. Family members must be allowed to lodge their
application directly at the consulate without any costs. However, if family members decide
not to make use of their right to lodge their application directly at the consulate but to use the
extra services, they should pay for these services.
If an appointment system is nevertheless in place, separate call lines (at ordinary local tariff)
to the consulate should be put at the disposal of family members respecting comparable
standards to those of "premium lines", i.e. the availability of such lines should be of standards
comparable to those in place for other categories of applicants and an appointment must be
allocated without delay.
3.3. Granting every facility
Member States shall grant third country family members of EU citizens falling under the
Directive every facility to obtain the necessary visa. This notion must be interpreted as
ensuring that Member States take all appropriate measures to ensure fulfilment of the
obligations arising out of the right of free movement and afford to such visa applicants the
best conditions to obtain the entry visa.
3.4. Processing time
The visas must be issued as soon as possible and on the basis of an accelerated procedure and
the procedures put in place by Member States (with or without outsourcing) must allow to
distinguish between the rights of a third country national who is a family member of an EU
citizen and other third country nationals. The former must be treated more favourably than the
latter.
Processing times for a visa application lodged by a third-country national who is a family
member of an EU citizen covered by the Directive going beyond 15 days should be
exceptional and duly justified.
3.5. Types of visa issued
Article 5(2) of the Directive provides that third-country nationals who are family members of
EU citizens may only be required to have an entry visa in accordance with Regulation (EC)
No 539/2001.
3.6. Supporting documents
In order to prove that the applicant has the right to be issued with an entry visa under the
Directive, he must establish that he is a beneficiary of the Directive. This is done by:
presenting documents relevant for the purposes of the three questions referred to above, i.e.
proving that:
- There is an EU citizen from whom the visa applicant can derive any rights;
the visa applicant is a family member (e.g. a marriage certificate, birth certificate,
proof of dependency, serious health grounds, durability of partnerships ) and
- his identity (passport);
- and the visa applicant accompanies or joins an EU citizen (e.g. a proof that the EU
citizen already resides in the host Member State or a confirmation that the EU
citizen will travel to the host Member State).
It is an established principle of EU law in the area of free movement that visa applicants have
the right of choice of the documentary evidence by which they wish to prove that they are
covered by the Directive (i.e. of the family link, dependency ). Member States may,
however, ask for specific documents (e.g. a marriage certificate as the means of proving the
existence of marriage), but should not refuse other means of proof.
For further information in relation to the documentation, see Commission Communication
COM (2009) 313 final22.
3.7. Burden of proof
The burden of proof applicable in the framework of the visa application under the Directive is
twofold:
Firstly, it is up to the visa applicant to prove that he is a beneficiary of the Directive. He must
be able to provide documentary evidence foreseen above as he must be able to present
evidence to support his claim.
If he fails to provide such evidence, the consulate can conclude that the applicant is not
entitled to the specific treatment under the Directive.
Additional documents may not be required regarding the purpose of travel and means of
subsistence (e.g. proof of accommodation, proof of cost of travelling), which is reflected in
the exemption for family members of EU citizens from filling in the following fields of the
visa application form: