We intend to seek reassurance from French border guards at Ouistreham when heading back to UK of the following rights of non-EU spouse to avoid the 90/180 ruling. Just wondering if anyone has already done so?
This is borne out by the Practical Handbook for Border Guards - in particular Section 2 page 17:
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2.1.2. In the case of third-country nationals who are family members of EU, EEA and CH citizens, they have the right of residence in a Member State for a period of up to three months if they are in possession of a valid passport and are accompanying or joining the EU, EEA or CH citizen, without any limitation to 90 days in a 180-day period.
We know it’s the law but apparently issues may still arise!!
“They have the right of residence in a Member State for a period of up to three months if they are in possession of a valid passport and are accompanying or joining the EU, EEA or CH citizen, without any limitation to 90 days in a 180-day period.”
On the one hand it says they have the right of residence for a period up to 3 months…blah blah without any limitation to 90 days in 180-day period
Can someone decipher that lot… 'cos it seems gobbledygook
or is it saying that 3 months might be 93 days ??? hence the no limitation to 90 days…
OR are they saying that such folk can apply for a visa (whatever) which lets them stay longer than the 90/180 days… ???
Surely, it mean that the 3 months when ACCOMPANYING an EU citizen does not count towards the 90/180 restriction that applies when visiting the EU as an individual?
For example, a 90 day visit as a third country visitor could be extended by being joined by/joining the EU citizen spouse for a further three months.
Edit: I have an EU passport my wife does not and she can accompany me on trips I make to the EU. Her passport will always be stamped on entering and exiting the EU because Schengen rules restrict her to 90/180 rules when crossing Schengen borders.
Or is that not the case?
It will all be automatic when the new system goes on stream.
To be noted that, third-country nationals who are family members of EU, EEA and CH citizens are entitled to accompany or join the EU, EEA or CH citizen for consecutive periods of up to three months per Schengen States without any conditions or formalities (except the need to have a visa for third-country nationals from a country subject to a visa requirement).
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The previous stays performed in the area without internal border controls accompanying or joining the EU, EEA or CH citizen should not be taken into account for the sake of the calculation of the compliance with the 90/180-day rule which is applicable to the short stay only.
This guidance in turn appears to be based on Article 3 of the Schengen Border Code:
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This Regulation shall apply to any person crossing the internal or external borders of Member States, without prejudice to:
(a) the rights of persons enjoying the right of free movement under Union law;"
As a result, non-EU family members of EU citizens are considered persons “enjoying the right of free movement under Union law” for the purposes of Article 3 of the Schengen Border Code. It therefore follows implicitly that they are not subject to the 90-day rule.
It is nonetheless important to note that confusion arises because there is no explicit provision exempting non-EU family members of EU citizens from the 90-day rule. This may give rise to potential problems for non-EU family members being incorrectly identified as overstaying in the EU. We therefore strongly advise that you bring a copy of this response with you when travelling in the EU with your wife so that you can present it, if challenged in relation to the fact that your wife does not have a visa.
Ref. : Free Movement Directive 2004/38/EC ; Community Visa Code (Regulation (EC) No 810/2009) ; Schengen Borders Code (Regulation (EU) 2016/399). the European Commission s interpretation appears to be that the 90/180 rule does not apply to non-EU family members travelling in the EU with their EU relative
Yep, I’ve done the research as quoted but have had cause to worry that the border authorities aren’t as well informed of the regulations as, perhaps, they ought to be with regards circumventing the 90/180 restrictions.
Just wondered if anyone has actually used the Directive successfully or indeed, if there’s a member with legal expertise who could give reassurance.
EU freedom of movement has always been restricted to 3 months. After that you were supposed to register. The fact that few British did that and just stayed is only due to the French not enforcing the rules.
And the freedom of movement granted to accompanying spouses I have always assumed is the same. You can potter in and out of EU countries with your spouses as long as only three months at a time in each individual country.
But as with general passport stamping as long as one is following the rules it doesn’t matter, so what are the issues that might arise??
The issues are that some border officials don’t seem to be aware of the freedom of movement Directive and have given grief to those they argue have overstayed their allocated 90 days in the 180 period. The Directive 3- months is “ implied “ hence the EU advice to carry a copy of the ruling.
AND - despite seeking confirmation of the right to travel with EU spouse from French douane, French Embassies in Paris & London, local Prefecture, & Irish embassy no- one seems prepared to explicitly say that the Directive allows one’s non/ EU spouse to remain in France for 3 months, depart for a short while, and return for another 3 months and so forth.
Themes the issues!!
Surely if the 2 spouses are together… then the non-EU is able to stay as long as the EU person is allowed… and that is 3 months.
If the EU spouse leaves, this means the non-EU will start to use part of the 90/180… until the EU spouse returns.
If the EU spouse does not return for 90 days… the the non-EU would have to leave as used up the 90/180.
However, the non-EU could come back to Schengen to rejoin the EU spouse wherever…
this is how I understand things…
EDIT: @Rathcoole is this how you see it working???
I doubt very much that they will be interested in a debate, they just want to check documents. And, as you state, they may or may not be correct in their interpretation.
John, I’ve written already to French embassies in Paris & London, to douane, to border police, to local prefecture. Each simply sends me a link to some other official department. No-one seems to want to take responsibility for confirming this EU law. Awaiting reply from Irish embassy but not holding my breath for them! Need, therefore, for a face to face conversation with a border officer. A bit of a farce to tell the truth.
What does a family member mean exactly?
Eg if you are not married but live together (for past 35 years in our case) does the non EU citizen still qualify as a family member of the UK based EU citizen ?
EU citizens are citizens of Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden Similar rights also apply to nationals of Iceland, Liechtenstein, Norway and Switzerland, and to nationals of the United Kingdom of Great Britain and Northern Ireland who are covered by Part Two of the Withdrawal Agreement (see BREXIT).
A foreign national is considered a so-called immediate family member of an EU citizen if that foreign national proves that:
spouse or a registered partner,
parent of an EU citizen under 21, who actually takes care of this young citizen,
descendant under 21 or such a descendant of a spouse of an EU citizen and
descendant or ancestor or else descendant or ancestor of a spouse of an EU citizen, who is due to meeting his basic needs dependent on nutrition or on other necessary care provided by this EU citizen or his spouse, or was dependent on this nutrition or care immediately prior to entering the territory, in a state of which the person concerned is a citizen or in a state in which the person concerned has permitted stay.
Besides this, a foreign national is considered a so-called extended family member of an EU citizen if that foreign national proves that:
he/she is a relative of a citizen of the European Union or citizen of the Czech Republic registered as permanently resident on the territory and
in the country from which he/she comes, he/she is supported by this EU citizen or citizen of the CR,
in the country from which he/she comes, he/she is a member of the household of this EU citizen or citizen of the CR, or
serious health reasons urgently require the personal care of this EU citizen or citizen of the CR, or he/she has a properly documented permanent partner relationship with an EU citizen or citizen of the CR registered as permanently resident on the territory
he/she has a properly documented permanent partner relationship with an EU citizen or citizen of the CR registered as permanently resident on the territory.
Department for Asylum and Migration Policy, August 18th, 2021
I lived happily in the UK with OH, no intention of getting married, not needed. When we came here 15 years ago we were strongly advised to get married before we left the UK in order to avoid difficulties with inheritance - so we did. Must say it makes life much simpler.
Sorry for not responding sooner, for some reason I just spotted this.
If you write to Simon Coveney, Minister for Foreign affaires directly you will get a swift response from his staff and the Irish Embassy in Paris, who in my experience, unlike in the past, are a lazy bunch of buck shifters, will get a kick up the arse
I’ve had to do it twice and I’ve had great results.
Actually, John, to be fair I did get a response from the Irish embassy after 4 days but no definite answer - just another link to British embassy and a brief statement as to my personal EU citizen rights.
Think - sod it - going to extend beyond my wife’s 90 day allowance and if need be argue the case. The law is either the law or it isn’t!!
