jlavery
Well-known member
I sent this enquiry to Your Europe – Advice
I am an Irish National resident in the UK. My spouse is a UK citizen, resident with me in the UK. What rights does my wife have when travelling with me to and within the EU? Is she subject to the 90/180 rule? If not, how do we ensure that her entries to and exits from the Schengen region are recorded correctly so that she is not considered to be overstaying. My enquiry is initially relating to France, but I would be interested in the situation with Spain and other countries if it is not too complex.
Here is their answer. Not as simple as I hoped - but pretty clear explanation if you wade through it.
As an Irish citizen, you continue to benefit from free movement rules and Brexit does not affect this.
From 1 January 2021, as a UK national, your spouse regrettably ceased to benefit from the right to reside in an EU country under the EU free movement rules.
As a UK national, your spouse is able benefit from the ability to travel within Schengen area without the need for a visa for stays of up to 90 days in any 180-day period. Therefore, your spouse can spend in total up to 180 days in any 360-day period. The 90-day limit only applies when your spouse travels alone without you.
As the family member of an Irish national and EU citizen, your spouse should also be able to stay for over 90 days within the Schengen area when accompanying you. Nonetheless, please note that your spouse is obliged to apply for a residence card if you both intend on residing in a specific country for more than three months. This applies even if your spouse is married to an EU citizen. You may also be required to register your residence when staying in a specific country, depending on the country concerned.
We advise you and your spouse to carry a copy of this advice and your marriage certificate alongside your valid passports as well as travel tickets for the past 180 days. You should produce this advice to immigration officials in case your husband s presence in the EU is questioned. Specific reference should be made to the extracts from the Practical Handbook for Border Guards at point 5 below.
We also suggest that you download a copy of this Practical Handbook for Border Guards and refer to pages 20 and 21:
https://data.consilium.europa.eu/doc/document/ST-14348-2022-ADD-1/en/pdf
We explain the rules in more detail further below.
1. The Brexit Withdrawal Agreement provided for a transitional period which ended on 31 December 2020. Following the end of the transitional period, EU law ceased to apply to the UK.
2. As a result, since 1 January 2021 and the end of the transitional period, Directive 2044/38, which governs the travel and residence rights of EU citizens and their family members, ceased to have effect between the UK and the other EU Member States.
3. Since 1 January 2021, the EU free movement rules ceased to apply to the UK and therefore British citizens ceased to benefit from the rights under the free movement of persons.
a. However, as a British citizen your spouse will not need a visa to travel to other EU countries for short stays of up to 90 days in any 180-day period (Regulation 2019/592 applies). The situation is only likely to change if the UK decides to impose a visa requirement on EU citizens wanting to travel to the UK for a short stay.
b. Nonetheless, your spouse will need to register under the European Travel Information and Authorization System (ETIAS). Under the ETIAS Regulation 2018/1240, which applies to the entry of non-EU nationals covered by a visa exemption, travellers will be required to make an application for electronic clearance prior to travel. This will apply to British citizens from 2025 whenever the ETIAS system becomes operational.
4. After 31 December 2020, British citizens will become subject the rules relating to the short stays in the Schengen area are contained in the EU Regulation 2016/399 (Schengen Borders Code) which applies to all Member States which participate in the Schengen area, as well as Iceland, Liechtenstein, Norway and Switzerland.
a. Under the current EU Schengen rules, third country nationals are entitled to stay of up to 90 days over a 180-day period in the Schengen area. This applied to British citizens from 1 January 2021.
b. For short stays, a third country national is entitled to spend up to 90 days in one or more of the Schengen countries over a 180-day period that begins with the date of their first entry into the Schengen area. This limit applies to all non-EU citizens, including those who are family members of EU citizens.
c. In order to reset the clock after a stay of 90 days it is necessary to be absent from the Schengen area for a whole period of 90 days.
d. However, as the Court of Justice has confirmed (Case C-241/05) the 180-day period will always be calculated on a rolling basis, by reference to the 180 days preceding the day on which a check is performed to determine if a person has not exceeded 90 days of permitted presence in the Schengen area.
e. As a result, this means that it is possible to plan a series of short stays without having to remain outside the Schengen area for a whole period of 90 days.
5. However, in theory the above rules should not prevent a family member of an EU citizens from being able to remain in the Schengen area for more than 90 days. This means, in theory, the 90-day rule does not therefore apply to family members of an EU citizen.
a. This is confirmed in the Practical Handbook for Border Guards issued to Schengen countries at page 21:
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.
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 State without any conditions or formalities (except the need to have a visa for third-country nationals from a country subject to a visa requirement where the person is not in possession of a valid residence card or a residence permit as further explained in point 2.8 of this Section).
When the family member travels on his/her own and does not hold a valid residence card or a residence permit (see point 2.8 of this Section), the normal regime concerning the length of the short stay will (re)start to apply, as the conditions for benefiting from the facilitations concerning the free movement of the EU, EEA and CH citizens and their families are not met anymore.
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.
b. We have stated that the above applies in theory because the above rules are not explicitly laid down in either Directive 2004/38 or Regulation 2016/399, nor has this been explicitly confirmed in case law.
c. Under the rules as they are currently drafted, non-EU family members of EU citizens are not explicitly excluded from the 90-day rule. This is only alluded to by Article 3 of Regulation 2016/399 which states as follows: 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; […]
d. Moreover, the Practical Handbook for Border Guards is not intended to create any legally binding obligations upon Schengen States (page 4). The Practical Handbook is intended to lay down guidelines, best practices and recommendations relating to the performance of border guard duties in the Schengen States.
e. There is therefore a risk that when a non-EU family member travels in the Schengen area for more than 90 days, that person may be incorrectly identified as an overstayer and served with a decision ordering their removal from the Schengen area and their return to their country of origin.
6. In conclusion, given that you and your spouse will be travelling within several EU countries but without staying more than 90 days in a specific EU country, the options to apply for a long-term visa or residence card are therefore not appropriate.
a. As we already stated, in his capacity as the family member of an EU citizen, your spouse is not subject to the 90-day limit when travelling with you throughout the EU.
b. There is no need for your spouse to apply for any specific visa or residence document given that he will not be staying more than 90 days in any specific EU country.
c. As a result, we advise you and your spouse to carry a copy of this advice and your marriage certificate alongside your valid passports, as well as travel tickets for the past 180 days. You should produce this advice to immigration officials in case your spouse's presence in the EU is questioned. Specific reference should be made to the extracts from the Practical Handbook for Border Guards at point 5 above.
I am an Irish National resident in the UK. My spouse is a UK citizen, resident with me in the UK. What rights does my wife have when travelling with me to and within the EU? Is she subject to the 90/180 rule? If not, how do we ensure that her entries to and exits from the Schengen region are recorded correctly so that she is not considered to be overstaying. My enquiry is initially relating to France, but I would be interested in the situation with Spain and other countries if it is not too complex.
Here is their answer. Not as simple as I hoped - but pretty clear explanation if you wade through it.
As an Irish citizen, you continue to benefit from free movement rules and Brexit does not affect this.
From 1 January 2021, as a UK national, your spouse regrettably ceased to benefit from the right to reside in an EU country under the EU free movement rules.
As a UK national, your spouse is able benefit from the ability to travel within Schengen area without the need for a visa for stays of up to 90 days in any 180-day period. Therefore, your spouse can spend in total up to 180 days in any 360-day period. The 90-day limit only applies when your spouse travels alone without you.
As the family member of an Irish national and EU citizen, your spouse should also be able to stay for over 90 days within the Schengen area when accompanying you. Nonetheless, please note that your spouse is obliged to apply for a residence card if you both intend on residing in a specific country for more than three months. This applies even if your spouse is married to an EU citizen. You may also be required to register your residence when staying in a specific country, depending on the country concerned.
We advise you and your spouse to carry a copy of this advice and your marriage certificate alongside your valid passports as well as travel tickets for the past 180 days. You should produce this advice to immigration officials in case your husband s presence in the EU is questioned. Specific reference should be made to the extracts from the Practical Handbook for Border Guards at point 5 below.
We also suggest that you download a copy of this Practical Handbook for Border Guards and refer to pages 20 and 21:
https://data.consilium.europa.eu/doc/document/ST-14348-2022-ADD-1/en/pdf
We explain the rules in more detail further below.
1. The Brexit Withdrawal Agreement provided for a transitional period which ended on 31 December 2020. Following the end of the transitional period, EU law ceased to apply to the UK.
2. As a result, since 1 January 2021 and the end of the transitional period, Directive 2044/38, which governs the travel and residence rights of EU citizens and their family members, ceased to have effect between the UK and the other EU Member States.
3. Since 1 January 2021, the EU free movement rules ceased to apply to the UK and therefore British citizens ceased to benefit from the rights under the free movement of persons.
a. However, as a British citizen your spouse will not need a visa to travel to other EU countries for short stays of up to 90 days in any 180-day period (Regulation 2019/592 applies). The situation is only likely to change if the UK decides to impose a visa requirement on EU citizens wanting to travel to the UK for a short stay.
b. Nonetheless, your spouse will need to register under the European Travel Information and Authorization System (ETIAS). Under the ETIAS Regulation 2018/1240, which applies to the entry of non-EU nationals covered by a visa exemption, travellers will be required to make an application for electronic clearance prior to travel. This will apply to British citizens from 2025 whenever the ETIAS system becomes operational.
4. After 31 December 2020, British citizens will become subject the rules relating to the short stays in the Schengen area are contained in the EU Regulation 2016/399 (Schengen Borders Code) which applies to all Member States which participate in the Schengen area, as well as Iceland, Liechtenstein, Norway and Switzerland.
a. Under the current EU Schengen rules, third country nationals are entitled to stay of up to 90 days over a 180-day period in the Schengen area. This applied to British citizens from 1 January 2021.
b. For short stays, a third country national is entitled to spend up to 90 days in one or more of the Schengen countries over a 180-day period that begins with the date of their first entry into the Schengen area. This limit applies to all non-EU citizens, including those who are family members of EU citizens.
c. In order to reset the clock after a stay of 90 days it is necessary to be absent from the Schengen area for a whole period of 90 days.
d. However, as the Court of Justice has confirmed (Case C-241/05) the 180-day period will always be calculated on a rolling basis, by reference to the 180 days preceding the day on which a check is performed to determine if a person has not exceeded 90 days of permitted presence in the Schengen area.
e. As a result, this means that it is possible to plan a series of short stays without having to remain outside the Schengen area for a whole period of 90 days.
5. However, in theory the above rules should not prevent a family member of an EU citizens from being able to remain in the Schengen area for more than 90 days. This means, in theory, the 90-day rule does not therefore apply to family members of an EU citizen.
a. This is confirmed in the Practical Handbook for Border Guards issued to Schengen countries at page 21:
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.
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 State without any conditions or formalities (except the need to have a visa for third-country nationals from a country subject to a visa requirement where the person is not in possession of a valid residence card or a residence permit as further explained in point 2.8 of this Section).
When the family member travels on his/her own and does not hold a valid residence card or a residence permit (see point 2.8 of this Section), the normal regime concerning the length of the short stay will (re)start to apply, as the conditions for benefiting from the facilitations concerning the free movement of the EU, EEA and CH citizens and their families are not met anymore.
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.
b. We have stated that the above applies in theory because the above rules are not explicitly laid down in either Directive 2004/38 or Regulation 2016/399, nor has this been explicitly confirmed in case law.
c. Under the rules as they are currently drafted, non-EU family members of EU citizens are not explicitly excluded from the 90-day rule. This is only alluded to by Article 3 of Regulation 2016/399 which states as follows: 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; […]
d. Moreover, the Practical Handbook for Border Guards is not intended to create any legally binding obligations upon Schengen States (page 4). The Practical Handbook is intended to lay down guidelines, best practices and recommendations relating to the performance of border guard duties in the Schengen States.
e. There is therefore a risk that when a non-EU family member travels in the Schengen area for more than 90 days, that person may be incorrectly identified as an overstayer and served with a decision ordering their removal from the Schengen area and their return to their country of origin.
6. In conclusion, given that you and your spouse will be travelling within several EU countries but without staying more than 90 days in a specific EU country, the options to apply for a long-term visa or residence card are therefore not appropriate.
a. As we already stated, in his capacity as the family member of an EU citizen, your spouse is not subject to the 90-day limit when travelling with you throughout the EU.
b. There is no need for your spouse to apply for any specific visa or residence document given that he will not be staying more than 90 days in any specific EU country.
c. As a result, we advise you and your spouse to carry a copy of this advice and your marriage certificate alongside your valid passports, as well as travel tickets for the past 180 days. You should produce this advice to immigration officials in case your spouse's presence in the EU is questioned. Specific reference should be made to the extracts from the Practical Handbook for Border Guards at point 5 above.
