Building blocks to appeal against a visa refusal because another Schengenstate objected to giving you a visa - Bouwstenen voor bezwaar
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This is the result of a cooperation of an Iranian woman who wanted a Schengenvisa and me a Dutch lawyer. Pick and choose what you can use. I would appreciate being named as the author.
ANOTHER STATE OBJECTING
No legal remedies? - preliminary questions
Visa aside, given my spotless personal history as described above, I am sure you can understand that I cannot accept the accusations levelled against me, implied by the reasons given for your refusal. I intend to get legal advice and if necessary take legal action in order to clear my name, which from my point of view your office has unjustifiably besmirched although I understand it is not so much country X (not Holland) what sees a problem in giving me a visa but some unnamed other EU country.
As I have no idea what country that might be I am unable to defend myself. That means I have no sufficient legal remedy as is an obligation under the ECHR.
I would like to put before you two cases in which Dutch courts asked for prejudicial questions of the European Court of Justice.
Translated from Dutch (using Google Translate) I quote the ruling of the District court of Amsterdam (The Netherlands) of the 4th of March 2020:
8. The court finds with the parties that two comparable cases are pending before the Court, namely C-225/19 and C-226/19. In short - this concerns the answer to the same question that is at issue here, namely whether the appeal procedure from the Visa Code does provide sufficient legal protection and good administration, if the objecting Member State does not provide any explanation regarding the alleged threat and nor does it explain whether, and in what way, the foreign national can use a legal remedy against this. The court further establishes with the parties that in those cases it was known which Member State had objected to the visa being issued.
9. In this case, unlike in cases C-225/19 and C-226/19, the Minister has not disclosed which Member State or Member States have or have objections to the issue of a visa to the claimant.
10. Prior to the hearing, the court asked, among other things, the Minister whether he is prepared to notify the court of the name of the member state or member states that object, using article 8:29 of the Administrative Law Code. Although the claimant agreed to this procedure of limited access by letter of 17 February 2020, the Minister stated in his response of 19 February 2020 that he will not do this without an opinion from that Member State or States. The Minister also stated that he is aware of which Member State or Member States have or have objected. He has registered this in the NVIS. However, he is not aware of why that Member State or States objects or has objected.
11. At the meeting, the lawyer of the Minister explained that he does not want to provide the name of the Member State concerned because, in his opinion, that information is confidential. Although the court is of the opinion that the name of the objecting Member State is part of the documents to be submitted by the Minister pursuant to Section 8:28 in conjunction with Section 8:42 of the Awb, the Court finds that no longer has any procedural possibilities to obtain this information on the attitude of the Minister.
12. In addition to the questions posed by this court, (Administrative Court in Haarlem), the court will therefore refer a further question to the Court for a preliminary ruling. This question reads as follows:
Is the answer to preliminary questions in cases before the Court registered under numbers C ‑ 225/19 and C-226/19, different, if the country referred to in the preliminary consultation referred to is not disclosed or has not been revealed that has objected to the issue of a visa to the applicant in Article 22 of the Visa Code?
13. Finally, the court notes that it is the first and only body in these visa cases. Finally, it is also important that the agent of the Minister explained at the hearing that he had several similar appeals at different hearing places of this court, where he also did not disclose the name of the objecting Member State.
14. In view of the above, the hearing of the appeal will be adjourned until the Court has given its decision
12. In addition to the questions posed by this court, the seat in Haarlem, the court will therefore refer a further question to the Court for a preliminary ruling. This question reads as follows:
Is the answer to preliminary questions in cases before the Court registered under numbers C ‑ 225/19 and C-226/19, different, if the country referred to in the preliminary consultation referred to is not disclosed or has not been revealed that has objected to the issue of a visa to the applicant in Article 22 of the Visa Code?
This is the link to C -225/19 mentioned in that ruling: https://op.europa.eu/nl/publication-detail/-/publication/60d134e6-8611-11e9-9f05-01aa75ed71a1
2004/38 and BREXIT?
I also was wondering if a third state is allowed to object because I am married to a British national and have a residence permit for the UK (see enclosed copy). Under Directive 2004/38/EU an EU national would be allowed to bring a third country national who he is in a relationship with to another EU country for a holiday. I believe Country X opted out of that Directive but as the third country probably has not done so can they object? And with my UK residence permit can I not travel freely into another EU country now we are still in that special year after BREXIT?
NATIONAL VISA
I was also wondering if you are not willing to give me a national (LTV) visa for Country X only as that option is also available under the Visa Code. According to the Schengen Visa Code, member states may issue LTV visas when a consulate deems it justifiable to overcome the three-month limitation in six months, when a member state considers it necessary due to pressing circumstances to derogate from entry conditions as set by Schengen Borders Code, to overcome objections of other member states, or in cases of urgency. My sister and my only sibling lives in country X and I would very much like to see her. Article 8 of the ECHR grants people a right to family life. I have developed sufficient economical and social ties to the United Kingdom. My husband works as a,,,,,,, and I work as a ....while looking for a job in linguistics. (See work contracts). I am a trustworthy traveler who never overstayed a visa.
Iranians?
I am sincerely asking for a reconsideration of the decision with regards to my Schengen visa application, particularly in respect of the reasons given for refusal. I’m not sure how this decision was reached, but I assure you in respect of the reasons advanced (unless the policy of country X or that other EU country is now to refuse entry to all Iranian nationals, following the example of the United States of America), a mistake has been made, a mistake that has far reaching consequences regarding my rights to a normal family life by maintaining contact with my relatives (in this case my sister who has been studying and working in country X for 5 years). I have heard rumors that Hungary objects to visa applications by Muslims randomly. If that is also the case here please do not let yourself be ruled by a xenophobic influence from the other side of the continent,
I would like to submit my previous passport, tickets, my marriage certificate and a brief travel history with my appeal as well.
COVID
Corona /Covid is a real burden to the world at the moment and although I have a British residence permit you might not be able to give me a visa right now due to national health concerns. In that case please shelve my appeal and wait with taking a decision but take a decision when the borders are open again
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