Leather Waistcoat Man

Subtitle: A guide for family members of EU citizens under the new Entry/Exit System (EES)

Some years ago, when installing a public artwork at Brunel University in London, myself and my collaborator David Morton encountered Leather Waistcoat Man. Essentially well-meaning and not charmless, Leather Waistcoat Man is in charge of ensuring protocol is followed and he (it’s always a ‘he’) will not countenance ways of doing things that do not comply with their understanding of the situation. The primary issue with Leather Waistcoat Man is that he is not always on top of all of the facts, but is unswayable when presented with them. Together, David and I encountered Leather Waistcoat Man on many other occasions but it was a shame to have encountered him again when entering France from Morocco a few days ago. We wanted to recount our experience in case it helps others prepare for what might occur…

Some Loyal Readers may remember this revelation, during our time cycling through Scotland. Learning that—in no uncertain terms—Beck’s Schengen time restriction didn’t apply if we travel together, due to my German passport, was great news for our trip. We could relax into cycling in Europe with only a 90-day per country limit. What was clear though was that we would have to evidence this if asked to do so, and we had questions about the looming introduction of the new Entry/Exit System, which would automate the process, effectively adding a digitally administered countdown, which we weren’t sure how to override. Luckily, this occurred to us as a follow-up question during our email discussion with the Europe Direct Contact Centre and we were assured this would not change the situation. They added that:

Your wife will then be registered in the EES as a family member. The automated calculator foreseen in the EES will not apply to her, and her data will be retained for a shorter amount of time.

As this would be our first time entering Schengen with the EES in force, we briefed ourselves on the relevant legislation and prepared to ask for Beck to be registered as a family member on our entry to France. Unfortunately, Leather Waistcoat Man had other ideas.

We rolled up to the border kiosk with our passports, a certified copy of our marriage certificate, our ferry tickets and print outs of the emails with the relevant text picked out with a bright yellow highlighter. At the kiosk, we met a lady who immediately wanted to take Beck’s biometrics and get us both through the checkpoint in super-fast time. That makes sense, given the queue of vehicles behind us, but we intended to slow things down a bit, to ensure Beck was correctly registered. Ultimately, this resulted in us moving to one side and waiting for a more senior member of the border police. Unfortunately, this was Leather Waistcoat Man. In fact, this guy didn’t resemble Leather Waistcoat Man physically. This guy was wearing a police t-shirt, was kinda buff, tanned and had lovely locks, but his raison d'être was classic Leather Waistcoat Man. We explained, in our best possible French and sometimes using Google Translate, what we knew. He started out as mildly dismissive, questioning who the Europe Direct Contact Centre even are, eventually escalating to swearing and denying us our opportunity to get through with the necessary ‘box tick’ on Beck’s digital record.

So be it, as ever, at some point there is no point in arguing any further with Leather Waistcoat Man, especially if he happens to also be a senior member of the border police. But, it turns out we were correct in what we were requesting and by not sticking to our guns we had missed an important opportunity to set the record straight. How do we know this? Well, like total gluttons for punishment, we returned to the border the next day to see whether we could get things rectified.

We retraced our route to the port gates and asked to speak with the Police aux Frontières. We got to some more gates and asked again before one of the border police came out to chat with us. We had prepared a letter, explaining the situation and we handed it, our passports, our marriage certificate and our ferry tickets to him. He headed off for quite some time before returning with The Don of the border police who—thankfully—was the antithesis of Leather Waistcoat Man. We were fairly sure we’d hear the spiel we’d heard the evening before and would have to argue the toss again. This time we were better prepared, with a clearer mission statement, translated into French. Luckily, none of this was needed. For starters, he spoke pretty good English. Secondly, he started by emphasising that the law was on our side and whatever the outcome today, Beck was indeed entitled to travel without the 90 in 180 day restriction, so long as we were travelling together. He also admitted that this was the first time they had encountered this within the new EES and we would all be learning together. We were asked to lock our bikes outside and follow him in.

Once inside we went to a kiosk together, similar to that from the day before. From there they spoke with someone really in the know, on a helpline for EU border police. This was all carried out in a very transparent manner. The phone was kept on loudspeaker and they gatherer around a computer screen to see what they could sort for us. They also updated us regularly on how things were progressing.

Ultimately, the computer said NO! Beck had been entered into the EES, and Schengen, without the crucial ‘family member’ box being ticked…and it wasn’t going to be a case of just updating it subsequently, try as they might. In fact, they tried for about forty minutes and they even considered whether they might delete the entry from the day before and add a new one. This seemed to worry everyone involved from the guy on the end of the phone to Beck, who was freaking out about what that might look like to the next person checking our record. I was up for it but then, it’s not my record.

The conclusion was that we must ensure we get the record updated and the box ticked when we next leave Schengen (or possibly at a border crossing within Schengen). That’s the time to get it done, which we knew on entering, but we didn’t quite have the wherewithal to stand our ground. What our new border police pals made clear to us was that even if we don’t ever get Beck registered as such, so long as we can prove we are married and that we have travelled together, we are protected under EU law as free to move in the same way as a double-EU couple. Our worry is that when we try to get the record updated next time we will bump into Leather Waistcoat Man again, but everyone (including the expert on the phone) said that this doesn’t materially matter as no fine or restriction would stand. The border police apologised for the issues we faced and vowed that they would learn from it. A wise man (the aforementioned David Morton) once said to me that you shouldn’t judge people on there mistakes but how they respond to their mistakes. The border police earned a gold star and our heartfelt thanks for this response.

So, that’s where we are at. Let’s hope we don’t meet Leather Waistcoat Man next time, but we’ve learnt a lot from this exchange. There are many things we would’ve done differently. Here’s a little checklist / summary, in case it’s of help to anyone else…

1. Be clear about what you are requesting. I think it’s fair to say that in the moment, and with limited shared language, we could’ve been clearer. We were not asking for Beck to be exempted from the EES. What we wanted was her EES record to reflect her status as ‘family member’. As far as we can gather, this is just a checkbox they need to tick when setting up the EES for the first (or subsequent) times.

2. Carry an outline of your request, and any other choice phrases, in the language of the border police you will be engaging. Ideally you want in printed out to hand over to the powers that be. That makes it much easier for them to share that if it’s on your phone screen.

3. Carry a printed copy of the applicable legislation with highlighted passages - in the appropriate language. In this case, what you are after is Directive 2004/38/CE and specifically Article 5, Paragraph 4:

Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence.

This specifies that you can prove your right to free movement "by other means." Our marriage certificate constitutes that legal means. The EES system specifically provides an option to register EU family members so as not to trigger the 90-day count.

Ironically, it was this very directive that Leather Waistcoat Man showed us on our phone to counter what we had been told by the Europe Direct Contact Centre. Only he had misunderstood it…

4. Carry a certified copy of your marriage certificate and proof of your travel together, to present alongside your passport.

5. Hold your ground. This is your one good chance to get this flagged on the system. I wish we’d insisted that Leather Waistcoat Man call up the helpline to confirm. I think he might’ve done if we’d been clearer about what we were requesting.

6. Don’t sweat it. Maybe, like us, you’d prefer to get this officially logged and also, like us, you find border crossings a little tense. Add in a language barrier and things can get stressful. It seems though that failing was also fine and that our rights are fully intact regardless.

Caveats:

• Major caveat: I am NOT an expert and you should undertake your own research on any points raised.
• We have focussed on spouses. Other ‘close family members’ do exist for the purposes of this, and different evidence will be required accordingly.
• Entering the EU country of your family member (Germany in my case) alters the status of the accompanying member. If we entered into Germany, rather than France, Beck’s EES clock would be ticking. As it stands, it is anyway because they failed to turn it off…but it’s an important distinction. In practice, I don’t think it makes much difference as—another caveat—you can only stay in each individual EU country for up to three months before you have to legally register for residency (if I’ve understood correctly?!)…
• In principle, the border police can request a translated and certified copy of your marriage cert. This stems from the fact that they have to be able to understand the document presented. I’m not clear how likely or how legal this is, but it seems it’s not impossible.
• Civil partners should check the detail for where they are travelling. I haven’t but a cursory Google suggests it could be treated slightly differently if entering via certain EU countries.
• Citizens of many countries will still require a visa when entering Schengen, even when accompanying an EU family member.
• The border police told us that if I was resident in an EU country, rather than just holding a German passport, our life would be made much easier by Beck getting a residence card covered under Article 10 and 11 of Directive 2004/38/CE. I think this also overrides the aforementioned need for visas. In any case, we haven’t looked into this any further as it’s not applicable to our situation.
• You should assume the ‘family member checkbox’ will not remain ticked. You will be required to submit the necessary paperwork at each border crossing.
• Further reading will be required to suss out the impact of the ETIAS, when it eventually comes in. As I understand it, the same rights apply and (other than if we travel to Germany - i.e. my EU country) we will have the fee waived and receive some sort of special treatment. We’ll see!
• Major caveat x2: I am NOT an expert and you should undertake your own research on any points raised. PHEW!

Please do send us an email if you have any queries arising from this. Wishing you many happy Schengen travel days!