Non-EU partners of EU citizens can legally travel without visas, even on their own, but border guards and airline staff don’t always let them

In October 2022, Arpita Chakraborty was stuck at Amsterdam’s Schiphol Airport. She had given birth just a few months before, she says, and her back was killing her.

Also, “that was the first time I was going away after having a baby”, she said. Her husband was at home in Dublin, minding their little girl.

A researcher in Dublin City University’s School of Law and Government, she had flown over for an academic event at a university in the Dutch city of Enschede.

But border guards wouldn’t let her into the country.

Chakraborty‘s husband is a Spanish citizen. Her daughter, who was born here, is Irish. Chakraborty lives here on an immigration stamp granted to close family members of European citizens, called a Stamp 4 EUFAM.

When she touched down in Amsterdam, she showed her passport, she says. “And they’re like, ‘Okay, sorry, Madam, where is your husband?’”

She showed them her immigration stamp, marriage cert and her daughter’s birth certificate.

They told her that she needed to fly back to Dublin and bring her EU citizen husband to cross the border, she says.

The back and forth took hours, says Chakraborty. She was on her feet for most of it, told them how bad her lower back hurt, cried, called her husband, and emailed colleagues.

In the end, she bought an expensive ticket and flew back to Dublin. “I still get emotional thinking about it, the physical pain, forget the humiliation of just standing there, people staring at you.”

According to the European Commission and the EU law granting freedom of movement to European citizens and their family members, Chakraborty should have been allowed to enter the Netherlands.

“Residence cards issued to non-EU family members of EU citizens exempt their holders from the visa requirement, regardless of whether or not the holder of the card accompanies the EU citizen,” said a spokesperson for the European Commission on Thursday.

Yet, for fear of different interpretations of the law and airline staff who don’t know the rules, many non-EU partners pay for visas anyway.

The Ministry of Justice and Security in the Netherlands hasn’t responded to queries sent on Friday asking why its officials had a different interpretation of the law and if they still do.

Setting the record straight

Over the summer, Chakraborty tried to apply for a Schengen visa at the Belgian embassy in Dublin so she could travel to two conferences.

But she ran late for her appointment and staff refused to take her application. She missed the conferences even though, on paper, she could have attended without visas.

The Belgian embassy didn’t mention that when she emailed to ask for an appointment and told them she was married to an EU citizen.

At the moment, it costs €90 per adult to apply for a Schengen visa.

Steve Peers, a professor of EU Law and Human Rights at Royal Holloway, University of London, says the EU’s freedom of movement directive does say that people like Chakraborty can travel visa-free with or without their partners.

The word of the law says that residence cards granted under EU law “exempt their holders from the visa requirement independently of whether or not the holder of the card accompanies or joins the EU citizen”.

But European immigration officers can argue that they have a different interpretation, says Peers. Because “the underlying logic of the Directive is to facilitate freedom of movement of EU citizens”.

They can argue that they uphold the spirit of the law, not its literal words, he says.

“In most of the Directive, the position of non-EU family members is directly linked to the EU citizens,” Peers says.

Peers says the EU Commission can’t easily force countries that acknowledge the spirit of the law to change.

“The Commission can issue guidance or offer its interpretation but ultimately the law is interpreted by the national authorities,” he says.

The solution? Someone challenging border crossing refusals like that in the Court of Justice of the European Union (CJEU) or in a national court, asking the CJEU or the European Commission to sue a member state, says Peers.

The other immigration officers

Even those travelling with EU partners can face difficulties at borders.

In July, Michelle Gopfert and her family arrived at Cork Airport, ready for a short family holiday in Portugal, she says.

She is a German citizen and her husband is a citizen of South Africa. A Ryanair staff member at the airport wouldn’t let her husband board their flight, she says.

“She looked at my husband, frazzled, and asked for his visa,” Gopfert says.

They kept explaining that her husband had an EU FAM immigration stamp, says Gopfert.

They showed emails from the Portuguese embassy in Dublin confirming he didn’t need a visa, she says. “My husband was close to tears.”

Gopfert says staff ignored them for a while until another staffer agreed to call the Portuguese officials to confirm themselves.

“The most frustrating thing was the supervisor had no intention of assisting us,” she says.

A spokesperson for Ryanair said all passengers on Gopfert’s flight boarded.

“Ryanair accept an EU FAM Stamp 4, if passengers are traveling with or to join their family member/s in accordance with EU Directive 2004/38,” they said.

They also pointed to a part in the EU directive about eligibility for residence cards which mentions how they are for someone joining or accompanying a family member, seemingly as proof that people aren’t – even with that card – allowed to travel alone unless it is to join their relative. ..

That airline staff who are poorly trained in such matters can act as immigration officers, refusing to board passengers and asking for visas when people shouldn’t need them has been flagged by non-EU immigrants before.

For airlines, there’s the prospect of hefty fines if someone they have allowed to board is refused leave to land by border control in their destination.

When Michelle Toxopeus, who also has an EU FAM stamp, emailed the French embassy in Dublin to ask if she needed a visa to travel to Paris with her husband for an anniversary trip, they wrote back saying she didn’t.

“You can travel with or without your EU family member if you have a Stamp 4 EU FAM [….] and do not need a visa,” says the email dated 6 August.

She shared the email on an immigration Facebook group. People chimed in to say that airline staff or immigration officers might not respect it.

“Airline staff and immigration officers have no clue about this and they do not agree,” one person wrote.

Wrote another: “This is all fine but will the illiterate airline staff at Check in allow to board without Visa?”

Toxopeus says she travelled without any hassle. “And if I were to get any, I had my emails on hand to show them.”

Gopfert, the woman travelling to Portugal with her husband and kids, says if they hadn’t pressed their case with Ryanair staff, they would have lost money and missed out on a summer holiday.

She doesn’t want to think about how many people are denied their right to travel without visas, she says. “And ending up very upset.”