Long stay Schengen visa requirement for spouse of UK citizen

I asked Your Europe Advice via the EC's web site. They responded (emphasis mine):

Please find below the reply to your enquiry. Please note that the advice given by Your Europe Advice is an independent advice and cannot be considered to be the opinion of the European Commission, of any other EU institution or its staff nor will this advice be binding upon the European Commission, any other EU or national institution.

Dear Sir,

Thank you for your enquiry.

You are right in pointing out that in accordance with Directive 2004/38/EC, you, as an EU citizen, have the right to travel freely within the territory of the Member States. You only need to have your valid passport or ID card with you. You may stay in another EU country for a period up to three months without having to comply with any further conditions or formalities. This right is also granted to your family members who are not EU nationals themselves and accompany or join you in the host country. Some EU countries require you and your non-EU spouse and children to report your presence to the relevant authorities within a reasonable period of time after arrival.

Meanwhile, if you intend to stay in another EU country for more than three months, you have to comply with further requirements. You can stay in another EU country for a period exceeding three months if (1) you are going to be working or (2) studying or (3) you are self-sufficient (i.e. you and your family members have sufficient resources not to become an unreasonable burden on the social assistance system of the host Member State during your period of residence and have adequate health insurance cover valid in the host country). In case you wish to stay in an EU country other than that of which you are a national for a period longer than three months, you may be required to apply for a registration certificate, and your non-EU national family members will be issued with a residence card clearly mentioning that it has been issued for a family member of an EU citizen.

We understand from your enquiry that you are a UK citizen meanwhile your spouse and minor child are Australian citizens and currently none of you resides in an EU country. Your question relates to whether your family members are required a visa to travel and stay in the Schengen zone for a period of approximately six months.

Pursuant to Article 5(2) of Directive 2004/38/EC, non-EU family members of an EU citizen may be required to have an entry visa in accordance with Regulation 539/2001, or with national law in the case of the UK and Ireland. Regulation 539/2001 lists countries whose nationals are subject to visa and also countries whose nationals are exempt from the visa requirement. In accordance with the provisions of the Regulation, nationals of Australia are exempt from the visa requirement for stay of no more than 90 days in any 180-day period.

Directive 2004/38/EC represents a lex specialis with regard to the Schengen Visa Code (Regulation 810/2009) which means that the Visa Code fully applies where the Directive does not provide an explicit rule.

With regard to right of entry for non-EU family members, the Directive clearly states that Member States may impose the visa obligation on non-EU family members in accordance with Regulation 539/2001, but their visas must be issued under facilitated conditions (namely free of charge and on the basis of an accelerated procedure). As the Schengen Visa Code only establishes the procedures and conditions for issuing visas for short stays in and transit through the territories of EU countries, an entry visa only entitles the non-EU family member to stay for up to 90 days in an EU country. After the first three months, a residence card for a family member of an EU citizen must be applied for. Then this residence card will ensure that the holder can travel freely within the EU together with his/her EU national family member and can stay in another Member State (different from the country which issued the residence card) for up to 90 days.

Although your family members are not visa nationals with regard to Regulation 539/2001, they can only stay in the Schengen zone for up to 90 days without having to comply with further administrative requirements. After three months of stay they have to register for residency in an EU country. The Directive does not overrule the Regulation 539/2001 and the Schengen Visa Code with this regard. (Otherwise it would constitute unlawful discrimination against family members of EU citizens who come from a third country whose nationals are subject to visa.)

Alternatively, your family members may apply for a long-term visa in a Schengen Member State (for example for a long-term visitor s visa), but long-term visas are always issued under national law. As a general rule, a third-country national holding a valid long-stay visa issued by a Schengen state may travel and stay in the territory of other Schengen states no more than 90 days in any 180-day period. For further information, we advise you to contact the embassy/consulate of the country you will be staying in for most of the travelling days (called as the main destination).

We hope this serves to clarify the issues raised in your query and thank you again for getting in touch with Your Europe Advice.

While negative, this answer does not suggest that staying longer than 90 days is a serious offence, only failure to complete an administrative requirement (although in which country, it cannot say).

It does obliquely seem to suggest that applying for successive 90-day visas (which a person from a visa-requiring state could do, too) might be a workaround.

(I received this answer before exiting the Schengen zone as described in my other answer here, but we decided not to expedite our exit based on it.)

UPDATE

I asked again a different question about whether we should be allowed back in or granted visas. Emphasis again mine.

Under the current EU Schengen rules, Australian nationals are exempt from visas for short stays of up to three months (90 days) in the Schengen area.

For short stays, your wife and children are 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.

The 90-day limit on short stays applies to stays in the Schengen area as a whole, not to individual countries. The limit is not applied so that a visitor can spend 90 days in each country. Instead, the limit is applied so that a visitor can only spend 90 day in the Schengen area as a whole.

Unfortunately, there is no possibility to obtain an extension to a short-stay in the Schengen area, except on humanitarian grounds.

You should also know that the above rules only apply to Schengen countries. Therefore the above rules do not apply to the following EU countries: the UK and Ireland, as well as Bulgaria, Croatia, Cyprus and Romania which are not yet full members of the Schengen area.

For the UK, your wife and children would be permitted to stay up to 6 months in a year without the need for a visa. Australian nationals are exempt from the need for a visa for such short visits, as confirmed here: https://www.gov.uk/check-uk-visa/y/australia/tourism

For the other EU countries outside the Schengen area, your wife and children would be allowed to stay up to 3 months without the need for a visa.

This means regrettably that, if your wife and children wishes to stay in other countries in the Schengen area for over three months, they will need a residence card issued by the national authorities or apply for a long-term visa (category D).

At this stage, your wife and children s options are the following:

(1) Stay in Schengen countries for 90 days, then leave the Schengen area after having spent 90 days there and remain outside for another 90 days (in other words until the end of the 180-period that is used to calculate the 90-day permitted length of stay in the Schengen area). During this time, you and your wife and children could go to stay in the United Kingdom, Ireland, Bulgaria, Croatia, Cyprus or Romania, as these countries do not form part of the Schengen area; or

(2) apply for a long-term visa for the countries where you intend to visit and spend more than 90 days (your wife and children would need to apply at the relevant embassy in the country where he presently resides), or

(3) apply for a residence card as the family members of an EU citizen in an EU country when you know you will intend on staying more than three months there – this would then enable your wife and children to remain with you in that EU country beyond 90 days and travel to other Schengen countries for up to 90 days. However, it will require you and your wife and children to stay in that EU country during the time your family is awaiting the residence card, which can take up to six months.

In answer to your specific questions:

• Should my family travelling with me be automatically granted entry to Greece, despite this immediately resulting in an excess of 90 days in 180 days within the Schengen zone, as under the EU Directive 2004/38/EC and the Schengen Border Code they appear to enjoy the same free movement rights when travelling with me?

No, they have no such automatic right and are likely to be refused entry if they try to enter the Schengen area after their 90-day entitlement has expired.

• If not, although Australians usually need no visa, should my family be granted a visa for such travel as a family member of an EU citizen, requiring only proof of the relationship and a passport, free of charge, as specified by Directive 2004/38/EC?

As we explained above, they would either have to apply for a long-stay visa which is not governed by EU rules or a residence card for family members.

• If not, on what legal basis could the visa be denied?

It would depend on whether they applied for a visa or residence card. Applications for residence cards can only be denied if 1) you as the EU sponsor do not have a right of residence 2) your family members used fraud or are abusing the rules 3) your family members are a threat to public policy or public security. Visa applications can also be denied if you do not meet the specific conditions applicable to that category of visa.

• In case we are granted entry that immediately results in excess of 90-in-180 days in the Schengen zone, should we then expect to be able to leave Greece (and the Schengen zone) a month later without mishap at the border?

Probably not as your family runs the risk of having an expulsion decision and travel ban imposed against them.

We hope this answers your query.

From my reading of the EC articles, I completely agree with other comments here that the 90 day limit should not apply, and my family when travelling with me aren't included in the definition of "third-country national". However, given repeated negative responses from border police and this service, our enthusiasm for testing this is waning. It's unfortunate that the only way to find out for sure has such a disproportionately high cost of a negative answer.

I have the same situation as the question, where I am the dual UK/Australian citizen and my family are Australian. All my research prior to travelling indicated that phoog's answer is correct, although I could not find an "official" confirmation or reliable success story. However, we had a poor experience attempting to exercise this freedom.

We entered the Schengen zone in Sweden, and when asked when we would leave the Schengen zone said we didn't know (but would leave Sweden in two weeks). The border guard expressed quite directly that my family would need to leave before 90 days, but since we didn't need to convince them, we didn't try too hard.

We left the Schengen zone after 95 days via Estonia and were held up at the airport border for about half an hour. The border police there were convinced that my family had overstayed their 90-day allowance, despite travelling with me. The first-level supervisor eventually "let us go" without immediate penalty, but did not acknowledge that we were within our rights. Since we were allowed through, I did not present documents such as the Schengen Border Code text, which I was carrying in case of this eventuality. I believe the supervisor was exercising lenience and/or avoiding paperwork for a small overstay.

The Estonian border police also asked if we intended to return to the Schengen zone, and strongly suggested that we not do so before waiting the 90 days for the allowance to begin re-filling. They did suggest that my family should be granted visas to return, though (even though Australians normally don't need them). This is a bit confusing since EU family member visas may (must) be granted at the port of entry, given evidence of the relationship such as marriage and birth certificates.

We intend to test this shortly 🤞.

You don't need a visa, and you are not restricted to 90 days in the Schengen area. Enjoy your trip.

Your wife is an EU citizen, who enjoys freedom of movement in the EU. She also has a right to enjoy that freedom of movement with her spouse, so you therefore enjoy freedom of movement in the EU if you travel with her, or if you travel to join her. The only exception to this is the UK, ironically, since her ability to go to the UK depends on her British citizenship, not on the EU right of freedom of movement.

(There are certain circumstances in which this would apply in the UK, namely if you already live in another EU country, but that appears not to be your situation.)

As a person enjoying freedom of movement, you are not restricted to the 90/180 rule of the Schengen area. Each EU country can require you to register if you stay for more than 90 days, but that is a country-by-country requirement. If you travel from one country to another, and stay in no country for more than 90 days, you will be fine.

Even if you stay in a country for more than 90 days, you can only be fined for failing to register. You cannot be removed or banned from the Schengen area. In France, for example, the fine is imposed by an increased fee when applying for a residence document after being in the country for more than 90 days. If you spend 4 months in France and never apply for the document, there is no cost.

Note also that, as a person enjoying freedom of movement in the EU, you are entitled to use the "EU passports" line when entering a Schengen country, even though you are traveling with a non-EU passport. This is explicit in the Schengen Borders Code.

The situation would be somewhat more complicated if you were from a country whose citizens need visas to enter the Schengen area, as they can still require visas of family members of non-EU citizens, but since you are Australian, you need not worry about that.

Here are some relevant bits from the Schengen Borders Code:

‘persons enjoying the right of free movement under Union law’ means:

(a) Union citizens within the meaning of Article 20(1) of the Treaty, and third-country nationals who are members of the family of a Union citizen exercising his or her right to free movement to whom Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States ( 15 ) applies;

(emphasis added; this means that you are a "person enjoying the right of free movement under Union law")

(a) Persons enjoying the right of free movement under Union law are entitled to use the lanes indicated by the sign in part A (‘EU, EEA, CH’) of Annex III. They may also use the lanes indicated by the sign in part B1 (‘visa not required’) and part B2 (‘all passports’) of Annex III.

(emphasis added; this means that you are able to use the "EU, EEA, CH" lane.)

You will probably want to carry a copy of your marriage documents if you want to be on the safe side; after all, to enjoy the rights of a spouse of an EU citizen, you may be asked to prove that you are in fact her spouse.

The right of freedom of movement itself is governed by Directive 2004/38/EC. This includes

CHAPTER III

RIGHT OF RESIDENCE

Article 6

Right of residence for up to three months

1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.

2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.