warakorn

I doubt there will be any surprises for us.
You will tell us that dependends of EU citizen can travel freely to the UK. No one here will doubt that.
However, you need proper documentation (a visa/EEA Family Permit) in order to exercise these EU rights. Your baby lacked this proper documentation.

Dr.Dre

Dear Neighbours thank You for Your participation and advice. So many answers/suggestions! Apparently I can post just 5 posts in 24h (?newly registered), so sorry if disappear for another 24h. But feel free, if You are still curios - send me private messages.

Some of You (purch, Nick Art) well spotted our point regarding freedom of movement of EU members and non-EU family members. Important to understand that this law is treating EU family as one unit but not as a citizen with ROU passport or Non- citizen with a Russian passport (see DIRECTIVE 2004/58/EC).

Most of what you suggested in your comments we have discussed between us. We consulted EU official documents/laws. Here what we found:
The DIRECTIVE 2004/58/EC which clearly says, that: 5. The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. (I don't see any mentioning about visa).

Another point is number (6) same directive In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.

I know it says about non-family members by definition. But what about maintaining the unity of the family of the EU citizens? What are Your thoughts? Our understanding is that our family was split because of LH. Practically we had a choice to apply for UK visa in Moldova (up to 6 months waiting time, not sure would it be rejected at the end), apply for family card outside the EU (again up to 6 months waiting formally) or to fly next day and to speak to UK BC.

BTW in this point (6) is the answer to those who suggested to marry Russian or Thai girls/boys and to bring them as non-EU family members - You will have problems at EU border to prove that you are a real family. Where is in our case he is our dependent infant.

In the response to a 2014 FOI request, Home office provided information about the ‘EEA Dependant’ ink stamp they issue in such circumstances:
If a non-EEA national arrives at the UK border seeking admission under the EEA Regulations as the family member of an EEA national, or of a British citizen under the Surinder Singh judgment, and does not have a valid EEA family permit (or other document specified in regulation 11(2)), the Border Force officer will give the passenger the opportunity to prove by other means that they qualify for entry (as required by Article 5(4) of the Directive and regulation 11(4) of the EEA Regulations).
If the officer is satisfied that the passenger is eligible for admission, the passenger’s valid passport will be endorsed at the border using an ‘EEA Dependant’ ink stamp for a period of six months. This stamp has replaced the ‘code 1A’ stamp previously used for this purpose.

letter from Damien Green (Minister of Immigration in Britian) makes this clear:
Under Regulation 11, the family member of an EEA national must be admitted to the UK if he or she produces on arrival a valid passport and an EEA family permit, a UK issued residence card or permanent residence card, or if he or she is able to prove the family relationship by other means. [emphasis added]
It is therefore not compulsory for family members of EEA nationals to obtain an EEA family permit before traveling to the UK, and UK Border Agency officers will consider any evidence presented by passengers arriving at the UK border that they are entitled to be admitted as a family member of an EEA national in accordance with regulation 11 (4) [Ed: This is the paragraph which implements MRAX]. Nevertheless, it is strongly recommended that family members obtain an EEA Family Permit, which are issued free of charge, before travelling in order to facilitate their entry to the UK.

Lastly (https://europa.eu/youreurope/citizen...y/index_en.htm)

Arriving at the border without an entry visa

It is always best for your non-EU family members to be well-informed in advance and to have all the necessary documents before starting their journey.

However, if they arrive at the border with their passport but without an entry visa, the border authorities should give them the opportunity to prove by other means that they are family members of a mobile EU citizen. They can do so by providing proof of their identity and family ties with an EU citizen (for example a marriage or birth certificate) and, proof that they are joining or accompanying the EU citizen (for example, proof that the EU citizen is already living in the country where entry is sought). If they manage to prove it, they should be issued with an entry visa on the spot
So to our understanding: Non-EU dependand child of EU family has the same right regarding freedom of movement as his/her parents.

Im not sure why You still disagree with obvious conclusion

But let's come back to my initial question.
Some clarifications I missed to explain previously:
1. I just received SOP letter, so I don't know if LH will agree to pay anything.
2. If LH can ignore SOP why they replyed to SOP requests and provided their comments? Make no sense to me. But, indeed big disappointment from warakorn negative experience with SOP.
3. My son (was 7-month-old at the time of LH event) already has ROU citizenship, but at that moment back in March 2019 he had no ROU documents, just RU (again - Brexit and the indeed bizarre decision of ROU embassy - to legalize our marriage in Russia, but its a different talk, not related to my question with LH).
4. The decision to go abroad was not spontaneous. Before leaving the UK I spend dozens of hours on the internet/Home Office web site and over the phone with the Home Office (You know - listen carefully and choose one of the following 27 options). Believe me or not - I had one option just to wait up to 6 months for Family card, but bear mind Brexit on 29 March 2019. Sincerely I very was anxious as UK Government did not care much at that time for EU citizens and their families. As an example, I have attached an email from the Home Office.



My letter to Home Office
Reply from Home Office


We were born and grew up in this country, I see nothing wrong to travel home. We are not only parents who travel with infants. But indeed this time it went wrong.
BTW - why You are considering Russian passport as not proper? In the end, my son entered the UK via this Passport.

When I presented at Manchester I had no my son's passport, just my documents (Rou passport, my pre-settled status they checked online, my work contract), and photos of all documents of Youngest one. At that time I did not have email between LH and UK BC, so it was direct communication between them, I was not included, one of the LH members kindly printed it later.
I cant post full email here (it says - the confidential information), just fragment



I have attached what UK Border Force stamped in his Russian Passport when they finally arrived. I hope the picture is big enough to be seen, doesn't look to me as a visa. So all of You who said that visa is obligatory - here is the prove - you were wrong.

Stamp in Russian passport

Dear warakorn - Your main arguments that if EU carrier/agents may not know all EU laws it makes him not liable and second according to You TIMATIC codecs is superior to EU law for EU Commercial company (for EU travels). I'm not an expert in law but I see a contradiction. In short - if don't know the law you are not liable to the law (by warakorn)

I understand that LH Chisinau agents might not know all EU laws details, but they consulted numerous times with LH Germany, who advised them to refuse the boarding. We presented all documents and more than that all EU official web sites and documents supporting our case (that is why LH Chisinau spent a lot of time over the phone with LH Germany, it wasn't straight forward refusal as LH Chisinau could see our evidence).

Another moment - LH informed söp that "complainants being rerouted free of charge", but we paid twice additional >500 GPB for re-routing and secondly after UK BC and authorized entry why we shall ignore another 5 hours stopover in Frankfurt?

Im coming back to my first post (I have excluded violation of freedom of movement) - with all said regarding to the EU law No 261/2004, is it realistic to claim our money back from tickets and re-booking fees (as the delay was longer than 5 hours)? It looks like emotional stress according to this forum I can blame myself.

Did anyone witness similar claims or I can make a precedent?

BIG Thanks!

Jaenks

"The DIRECTIVE 2004/58/EC which clearly says, that: 5. The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. (I don't see any mentioning about visa)."
Moldova is not a territory inside of EU, therefore that directive does not apply on your case.

Dr.Dre

Not sure that I understand Your point - we had no problems with Moldavian and UK border Force. So for state agencies, our documents were enough. Just LH and You don't see our right for free movement. The directive applies to ALL EU citizens and their direct family members.

Jaenks

Moldavians see EU passport and child document, they do not care because airline must pay when passengers are prohibited to enter the country and airline must return them. I am sure that German border would not let you in from Moldova with your child Russian passport and it is not just me and LH who do not see your right. I see yours and your spouse right to move freely to and within EU but not your child as only a Russian citizen per valid document. After valid Brexit your family will face even more difficulty or even entry denial as Romanian/Russian citizens in UK if everything goes as the Government of UK has planned.

thbe

This case is not about whether the OP‘s son has the right to enter the UK or not. If hadn‘t had that right, there wouldn’t have been anything to discuss about.

But the fact, that he had that right, doesn‘t mean that EU261 applies. EU261 doesn‘t apply, if there are reasonable grounds to deny boarding, like inadequate travel documentation. Having inadequate travel documentation is not the same like not having the right to enter a country. You can have the right to enter the country without having adequate travel documentation.

And you can have reasonable grounds without being right.

While a border patrol agent should know the regulations about entering his own country, you can not expect the same from airline staff about all countries. Airline staff use systems like Timatic. Everyone is free to check his data on websites like www.iatatravelcentre.com .

Timatic says, that the son’s documentation isn’t sufficient for his journey.

So the question is, whether it is a reasonable ground for an airline staff member to deny boarding because of insufficient travel documents, if Timatic says, that the passenger‘s travel documentation is not sufficient.

Again: You can have the right to enter the country without having adequate travel documentation. And you can have reasonable grounds without being right.

Personally, I‘m not sure, if Timatic is an excuse for everything. But I think, in this case it is. I‘m very sure, that LH won’t pay without getting sued.

My advice is to request the support of a professional claims management Company like Airhelp or similar. If I were the OP, I wouldn’t risk my personal money for a lawsuit like this.

Often1

1. Clearing up one of the minor mysteries, the UK sent the email to OS, not LH. While that may not have mattered for the first segment, it most assuredly would matter for the second segment and it is little wonder that the email did not make its way to anybody of note at FRA.

2. The entire argument is circular. The Family Permit exists as the UK's means of assuring freedom of movement for the child presenting as a Russian national. In fact, pretty much all travel documents, whether denominated passports, visas, or permits, exist for this very reason. They remove from busy functionaries, e.g. air carrier ground staff, the necessity of understanding the vagaries of the laws of other countries. All the ground staff need do is verify the documents in the certain knowledge that they have fulfilled their function.

If LH indeed does not agree to pay the SOP recommendation, OP may certainly consult one of the claims agents. As those agents only get paid if they win (typically 25-33% of the $2,050). they equally will not accept matters where they do not believe they will win.

OP would be better off expending effort to obtain the family permit and to review all of the family's documents now so that the future is less bleak.

fassy

Good summary and what we said several times all ready. Seems OP spends a lot of times researching on EU laws and trying to make a case here. My advise... don’t! If OP feels the need, consult a lawyer. Do not read some fragments from some EU laws and try to do your own interpretation.

Like said, airlines require valid travel documents and if you don’t bring them, they can refuse carriage as quoted from their CoC.

warakorn

My predictions were right.

1. The EEA Family Permit confirms that all the requirements have been met by the non-EU citizen. This gives the contract gate agent the assurance that that citizens wont be refused entry and the airline wont have to pay a fine.

2. Yes! And no one said so otherwise. If a non-EU citizen together with the EU citizen makes it physically to a UK border checkpoint and they can prove that all requirements have met, then this non-EU citizen is admisable.

3. This what the TE seems not to understand: It is not the job or role of an airline contract agent to make the determination (based on a variety of documents) whether a passenger is admisable to the destination country or not. The law is simply too complicated. For that purpose the EEA Family Permit UK Entry Clearance or similar scheme exists. Moreover, it is not reasonable for the gate agent to know the immigration law of hundreds of countries.
An UK border agent just has to know the immigration law of the UK. That agent is trained in that for years. You cannot expect that from a gate agent.

Another thing: It appears to me that you knew the risks of your travel itinerary before you flew with your baby from the UK to Moldova.
And you are crying here that your baby got sick and you couldn't see him.

You knew the risk. It went wrong, badly wrong.

One last thing here:
The e-mail vom the UK border agent from MAN. Again, such an email can be easily spoofed (manipulating the email address of the sender).
You were extremely lucky at Chisinau airport that LH allowed your baby to board the flight.

At Lagos Airport (e.g.) you would have been laughed away (or worse beaten away) approaching the check-in desk with an email sent to the airline instead of a physical visa in your passport.
Faking visa, faking passport for an illegal UK entry is a multi-million criminal industry worldwide. I hope no one of them is reading that thread here, esp. not the email address from the MAN border agent office.

fassy

Still, the mail could have been digital signed.

You can’t see that in the small snippet.

Dr.Dre

Have You tried to apply for this (I know You don't need that)? I will help You:


So - he was born in the UK, therefore, had no option to apply for EEA Family Permit from inside the UK. That was one of the reasons why we left the UK. You accepted this - he has the right to come back home in Uk as our child.

Agree with most Your thoughts. Except - admit, the visa is not necessary.

Dear Lord - it was direct communication between UK BC and LH. I was not involved in their conversation.

fassy

Nobody claimed your son needed a visa to enter the UK. Read more carefully... we said, for the airline agent, they will require you to show a passport eligible for entry into the destination country. So for UK, a Russian passport would need to have an visa or similar (EEA family permit) attached.

Or a similar undoubtedly proof, the pax can legally enter UK.

It is understandable that LH agents won’t accept a birth-certificate in combination with a Russian passport.

Posted for Dr.Dre

well, no. TIMATIC is not above EU law, and nobody ignored EU law.

Simple fact is, airlines require you to provide sufficient travel documents which they can validate. This is a passport with visa attached, if needed. They don’t have to accept some papers which might or might not be good enough. They can’t make that call.

As in my example above, as German citizen I’m allowed to enter back into Germany... always. But airlines won’t let me board a plane, e.g. in the US for a flight bound to Germany without a passport as TIMATIC will say, I need a passport for travel.

Before leaving on a trip, check which documents to bring.

Often1

OP is simply wrong that one must be outside the UK to apply for the Permit. The language is express:

"[T]he EEA citizen you’re joining is in the UK already or travelling with you to the UK within 6 months of the date of your application."

In this case, the child is "you" and thus the child's guardians, e.g. parents are "you"
In this case, the child would be travelling with the parents (pre-settled status) within six months of the application.

I can't speak to the exact timings here, but it would seem that the permit was the way to go and entirely appropriate for use on the child's return with parents to UK.

Often1

Indeed. This is the reason US consulates issue passport-replacing (temporary) passports to US nationals who lose or have stolen their US passports. As US nationals, they can't be denied entry to the US if they can make it to the US border.

But, in order to make it to the US border where they can demonstrate nationality, they need to fly to the US and the air carrier rightfully won't board them without a passport.

fassy

no, unfortunately OP is right. The application needs to be filed from outside of the UK:

if you follow the link, and say „I’m the UK now“ it brings up an error:



I guess to prevent illegals in the UK to retroactively apply for a visa.

But for sure here must be an option for children born in the UK.