Schengen visa for non-EU spouse of EU citizen

Question

Most of the already posted questions were about traveling between EU countries. In my case I would like to visit Austria with my South African wife. We got married over 20 years ago in Austria, lived there together for 6 years, but moved to SA 16 years ago. The permanent residence my wife had once expired and she needs a Schengen visa. The Austrian Embassy tells me that my wife has to apply in person, show proof of income, proof of accommodation, has a travel insurance and all fulfills all other requirements like every ordinary applicant.

Is the Directive 2004/38/EC only applicable for spouses when they are already within the EU or is it also valid in our case?

In particular the personal appearance is a problem as we are living in the Southern Cape and going to the embassy means a round trip of 2600 km, closer is the consulate in Cape Town but still requires a 1200 tour.

Answer 1

Why didn't you read the directive? You would have found answers to your questions:

"With a view to facilitating the free movement of family members who are not nationals of a Member State, those who have already obtained a residence card should be exempted from the requirement to obtain an entry visa ..."

So, first of all the visa requirement is valid. Unless your spouse has a residence card, she needs a visa to enter the Schengen area, even as a family member of a EU citizen. This seems reasonable to me, as it may be difficult for any officer to efficiently validate your marriage at the border crossing.

However, the entry visa requirement is regulated further:

"Family members who are not nationals of a Member State shall only be required to have an entry visa ... 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."

I would interpret this so that being a family member of an EU citizen is itself a qualification for getting an entry visa. It is probably ok, that your wife must meet in person at an embassy or consulate to apply for the visa. Is there perhaps a consulate from a different Schengen country closer to you? Even if you are an Austrian citizen and you are traveling to Austria, any Schengen consulate should be able to issue the visa for your wife.

Answer 2

Freedom of movement (and directive 2004/38/EC) fully applies to EU citizens who reside outside the EU but EU law does not (generally) apply to your country of citizenship. Since you lived and married there, I assume that you might be an Austrian citizen and this would indeed mean that the Austrian consulate can in principle require your wife to follow the regular procedure for visitors or to obtain another visa.

Paradoxically, if you would plan a trip to, say, Germany, with only an incidental visit to Austria, your wife would be entitled to a Schengen visa using the simplified procedure implementing the requirements of the directive (i.e. free of charge, without presenting evidence regarding her finances, proof of travel insurance, etc.) Unfortunately, I suspect that even this lighter procedure might require one or two trips to the consulate, if only to enroll the applicant's biometrics and get the visa sticker in their passport, so it would not fully solve your problem.

Answer 3

Member States shall grant your third country family members 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. Member States may not require family or residence visas for your family members but only entry visas.(…) All the Member State consular officials can ask for is their passport and a document establishing their family ties with you, such as marriage or birth certificate and proof of dependence, where applicable. Your family members cannot be asked to present documents such as travel tickets, employment certificate, pay-slips, bank statements, proof of accommodation and means of subsistence or a medical certificate.