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My mother in law is currently on a visitors visa in Canada. The whole family will be travelling to Ukraine and we wanted to make a stop in Germany.

I was reading through the requirements and come across this:

Only applications from residents of Canada (Permanent residents, persons holding a Canadian student visa or work permit) can be accepted. Applications from persons holding long-term visitor’s visa can only be accepted, if you can prove that it was not possible to apply in your home country.

Technically, the reason is that she is here hence needs to apply here but i don't think that is a valid reason for the consulate.

She can go back to Ukraine and apply but then it would be difficult to prove where and why she is going. On the other hand, my wife is a PR in Canada and holds Polish passport so it could be a good reason to ask for a visa but she lives in Canada which makes things more complicated.

Is there any way around this?

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You are supposed to apply at the embassy or consulate for your permanent residency (which is in the best position to process the supporting documentation), and you are supposed to apply at the consulate for your main destination for the trip.

Main destination does not mean longest stay. If you were to visit Poland as well, the citizenship of your wife would make it easy to justify that as the main destination. Then you can try to tell the Polish embassy that yours is a hardship case and ask them to process your mother-in-law's application. You can't demand it.

Of course you should only try that if you're actually going to visit Poland. Lying is a bad idea, getting caught has long-term consequences.

  • Doesn't she qualify as a family member of an EU national? – Michael Hampton Apr 20 '16 at 6:07
  • @MichaelHampton, the EU national isn't resident in the EU. I think that changes the rules. – o.m. Apr 20 '16 at 15:28
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    Really? I could not find any such requirement. Indeed, examples of EU nationals living outside the EU are given here. – Michael Hampton Apr 20 '16 at 17:24
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    @MichaelHampton a parent or other relative in the ascendant line can only qualify under the directive if dependent on the EU national sponsor. It's not clear whether that's the case here. I managed to get an EEA family permit for my mother in law on that score, but proving the dependency seems very subjective and I think we were lucky to succeed on the first try. I suspect that residency requirements would be relaxed for such an application, but probably not necessary in this case as there is an exception for long-term absence from the country of residence. – phoog Oct 20 '16 at 19:25
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    You are supposed to apply where you reside, period. “Permanent” does not really come into it, for example a student with a one-year visa for Canada can and should apply in Canada (permanent is a word I have only ever heard in relation with immigration status and many many people live in another country without being “permanent” residents under that country's laws). – Relaxed Oct 20 '16 at 23:09
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Depending on the dates of your trip (in particular, if your mother in law will be in Canada for the entire 90-day period preceding her arrival in the Schengen area), the consulate in Canada should process the application.

Article 6, paragraph 2 of the Schengen Visa Code reads

A consulate of the competent Member State shall examine and decide on an application lodged by a third-country national legally present but not residing in its jurisdiction, if the applicant has provided justification for lodging the application at that consulate.

(Emphasis added.)

The handbook for implementing the code offers some examples of acceptable justification in section 2.8. A pertinent example:

Example: A Peruvian artist is scheduled to perform in Portugal on 25.5., and from 20.2. to 15.5 she is performing in Canada and the United States. Under such circumstances a Portuguese consulate in Canada or the United States should allow the applicant to submit the application,because it would be impossible for her to apply while still in her country of residence given the rule of not applying for a visa earlier than three months before the date of the intended entry into the territory of the Member States.

One interpretation of the above example is that an application may be considered when the traveler will be away from the country of residence during the entire period during which a visa application must be submitted.

The German consulate's statement about proving that it was not possible to apply in your home country should be interpreted in this light, though it is of course possible that they will interpret the rules differently.

The best way to find out is to apply. You won't lose the application fee, because if the consulate determines that your justification is insufficient, they will follow section 2.7:

If the consulate establishes that it is not competent to deal with an application after the application has been lodged, this information shall immediately be communicated to the applicant, and the entire application (application form and supporting documents) should be returned as well as the visa fee. The applicant shall be informed of where to submit the application.

(emphasis added)

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