Avoiding the Schengen 90 day Rule with a Spouse's EU Passport

[Bumper]

I apologise for stirring this pot again - I realise that there is advice on the forum on this subject, but here and elsewhere there are a number of different views. I would like to ask the question about the position of a spouse travelling on a UK Passport with his or her other half travelling on an EU passport, based on personal experience rather than re-interpretation of the many, inconsistent information sources available.

May I ask a couple who have actually stayed within the Schengen Area for longer than 90 consecutive days, and have first hand knowledge, to be kind enough to describe the process they went through to enter the Area, whether they had any issues in the Area, and the process they went through to leave more than 90 days after entering, with the UK Passport holder avoiding penalties on the basis of the spouse having an EU passport.

I assume the penalties could include endorsement of the UK Passport to limit future visits, fines or other measures short of prosecution, but still be problematic if future extended visits are to be enjoyed. On our last long trip through Spain and Portugal, we had an appointment with an Immigration lawyer in Valencia who advised that although punishment for limited overstaying was unlikely, that the 90 day rule did apply to the UK Passport Holder and their right of access to the Area might be withdrawn.

I would be very grateful for the benefit of experience of people who have actually walked the "hard yards" themselves. Thank you.

 

[Carpmart]

Well… where to start…

You reference the other topics, have you read them?

You mention inconsistent information sources. Is that code for Facebook groups and people who think they know offering advice, or something more substantive. If the latter, please share?

The basic premise is, when in the EU before Brexit, we could travel freely. The EU passport holders still can. If as a British EU citizen before Brexit, say you had a non EU spouse, you could travel freely with them as they were accompanying you as the EU passport holder. This is still the same today only a reversal of the previous situation.

Assuming you have read the other topics/threads, you will see that third country nationals (UK in this case) can travel and move freely within the EU when accompanying their spouse (other family member too, but let’s keep it to spouse for a simple discussion)

So, thats the rules… I’m doing this right now with my EU spouse….the issue I’m concerned of having when I return to the UK in a 50 days, having been away for nearly 120 days, is that the border officials are not trained.

My Passport was (again) stamped when departing UK by French border staff. I kicked up quite a discussion but the staff are not trained, so do not understand EU Directive 2004/38/EC (despite printed copies provided in French) And have clearly been told to stamp all UK passports by their bosses and stamp them they must.

The reality is, I know I’m not breaching the terms of Schengen, as it doesn’t apply to me when travelling with my EU wife. The practical application of this is what I’m finding frustrating at the moment.

When I get back towards end of April, I fly on my own to Spain for four days, so will be interesting to see what happens then!

Finally, this lawyer you consulted, shows how little they know. Have you read the EU directive yourself? Did you point the relevant paragraphs out to this lawyer? Why does he believe these do not apply? If you left feeling that you couldn’t travel with your spouse, I’m afraid you totally got the wrong advice from that lawyer. (Please do let us know why the lawyer doesn’t believe spouses have access to the EU as they have always done?)

 

[ivorantony]

 

[Roby2008]

I am not sure that there is an answer to this problem, UK passports will get stamped whatever you say and it becomes your future problem.

My story:

I have German residency ( complete with a little card), I have visited the UK twice in the last 2 years, on leaving the UK via ferry, my passport was stamped, despite presenting my German residency, having my German wife with me and in a German registered MH, and driving on a German licence....the guy just shrugged and stamped.
Since January this year we have flown out of the EU twice, both times the passport control officers in Munich have reached for the stamp on seeing my British passport, it takes a few Keine Stempel bitte to stop them before they then check my residency card ( always presented with the passport) and let me through.

From my experience, entering or leaving the EU on a British passport will trigger a stamp unless you can prove otherwise.

I will go through the whole thing again when we come over in June to pick up a cruise, hopefully in the new MH is it arrives a promised, but that´s another story.

 

[Bumper]

Hi Carpmart, thanks for your interesting reply - its great to get input from someone who has first hand experience on this subject. My reference to inconsistent information sources was indeed about the people who comment on such topics, without the benefit of any direct experience, giving advice or even, in some cases, taking the trouble to advise the forum that they don't know the answer! I agree with you that EU Directive 2004/38/EC from 2004 makes it pretty clear that dependents of an EC Passport Holder have the same rights of access as the Passport Holder. I don't know whether other post-Brexit regulations affect this. Certainly our lawyer in Valencia didn't seem to think the directive stood alone and superseded general immigration regulations as the stood in 2022. I have attached his email summary of our meeting for your information - like many legal responses, it seems to say yes and no at the same time!

The current reality, in my experience, is that UK Passport Holders have their passports stamped on entry and departure from the Schengen Area (I assume this process will be superseded by the implementation of the Electronic Travel Authority process in the future). The key point, for me, is not the stamping process itself but what happens when a UK Passport Holder who is a dependent of an EU Passport Holder leaves the area after a stay of more than 90 days, as evidenced by the stamps.

Have they committed an immigration offence, will they be punished or sanctioned (by fine or future limit on entry) or will they simply pass through emigration without a problem? I would be very grateful to learn how you get on when you leave the Area in late April after a stay of 120 days, if you would be kind enough to share that information. As you say, any impact on your subsequent short trip to Spain will be interesting.

I hope you continue to enjoy your travels in the EU, despite all this red tape.

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[Carpmart]

Hi Carpmart, thanks for your interesting reply - its great to get input from someone who has first hand experience on this subject. My reference to inconsistent information sources was indeed about the people who comment on such topics, without the benefit of any direct experience, giving advice or even, in some cases, taking the trouble to advise the forum that they don't know the answer! I agree with you that EU Directive 2004/38/EC from 2004 makes it pretty clear that dependents of an EC Passport Holder have the same rights of access as the Passport Holder. I don't know whether other post-Brexit regulations affect this. Certainly our lawyer in Valencia didn't seem to think the directive stood alone and superseded general immigration regulations as the stood in 2022. I have attached his email summary of our meeting for your information - like many legal responses, it seems to say yes and no at the same time!

The current reality, in my experience, is that UK Passport Holders have their passports stamped on entry and departure from the Schengen Area (I assume this process will be superseded by the implementation of the Electronic Travel Authority process in the future). The key point, for me, is not the stamping process itself but what happens when a UK Passport Holder who is a dependent of an EU Passport Holder leaves the area after a stay of more than 90 days, as evidenced by the stamps.

Have they committed an immigration offence, will they be punished or sanctioned (by fine or future limit on entry) or will they simply pass through emigration without a problem? I would be very grateful to learn how you get on when you leave the Area in late April after a stay of 120 days, if you would be kind enough to share that information. As you say, any impact on your subsequent short trip to Spain will be interesting.

I hope you continue to enjoy your travels in the EU, despite all this red tape.

Your lawyer is more than confusing. IMHO Really poor work!

The lawyer is confusing right to roam as per EU directive 2004/38 (this was your question, is that correct) with registering in an individual EU territory if staying for more than 90 days. This registration has been and will always be the case, the right to roam with an EU spouse has been and always will be as written in the 2004 directive.

As I have said already, you cannot stay for more than 90 days in any EU territory, but you can travel around for as long as you want.

Brexit is a red herring and has had zero impact on this, except all British passport holders are no longer EU passport holders, so the right to roam has been removed and we are third country nationals and governed by Schengen rules, except for the few who are traveling with an EU passported spouse.

 

[Ianj55]

Had the same problem at Eurotunnel in September last year. My wife has a Euro passport and as the French immigration lady stamped my UK passport she was asked “why have you stamped the uk passport”, to which she shrugged her shoulders and said she didn’t realise we were together!!

Hang on she was sat next to me, she commented that we need to provide a marriage certificate. Moral to this piece is handover the EU passport first then the UK one separately with the marriage certificate.

Upon coming back the French passport official agreed that the UK passport should not have been stamped, and commented that it would not have been a problem if stopped in a Schengen country as travelling with a EU passport holder and ok also for staying over 90 days.

Check the EU website “Your Europe” and gives all the information about a non EU citizen travelling with a spouse with a EU passport. Whole subject is a bit of a minefield and really depends who is on duty that day !!!!!

 

[Garry - June]

I found this website has links to all the relevant rules and directives on this subject, my wife is awaiting her Irish Passport so I have researched it at length...... may be worth printing out some that can be used if you encounter border issues,

Your non-EU spouse and children's residence rights in the EU - Your Europe

You are an EU citizen moving to another EU country to live, work or study? Your spouse, children and grandchildren can join you, even if they are not EU nationals.

europa.eu

 

[dawsey]

Hi

I don't see the confusion. The rules are clear, even from 1st reading of the directive.

If you (as UK passport holder) are moving to the home country of your spouse, then the national (rules of your spouses home country), not the EU rules apply. These ‘national’ rules may be the general EU rules, or they may not. You have to ask the immigration department of the country on question.

If you are ‘travelling’ or moving to an EU country that is not the country of origin of your spouse, the EU rules apply, and as stated in the directive (rule), you can accompany your EU spouse unrestricted.

That is the difference, and source of confusion. If you (UK citizen) are going to your (EU) spouses home country, it is the rules of their country. If you are going to another EU country, it’s EU rules.

My example

I am British, my wife French. We are in process of moving from Britain to France. I need a visa. I cannot stay there more than 90days as spouse of her (as an EU citizen).

It is because she is French, and we are moving to France, so French (not EU) rules apply when it comes to me as her spouse. It may appear counter-intuitive, but national immigration law takes precedence on such matters relating to the citizen (of the individual country). She (and by definition, therefore I) face more hurdles going to live in her home country than we would if we wanted to go live in Germany or Spain.

If we were moving to (for example) Spain, I could travel and stay with her in that country without limit as it is not her home or native country (the one issuing her passport), so EU rules apply.

For us, French rules apply. That meant I had to have a visa. I had to book an appointment at TLS in London, wait several weeks for the slot, then go queue there for several hours and have the ‘interview’ then wait 3 weeks for my passport to be returned before we travelled. This is the reality for France post Brexit, even if your are married to a French person. It may be different for other EU countries who will naturally have different rules, or who may just apply the EU directive.

I hope this helps - there’s a lot of garbage and bad information out there. I have had people in this very forum trying to tell me I don’t need a visa which was patently untrue.

 

[Bolti]

Arrived in Spain end of October travelling with EU spouse, passport stamped. Today exited Spain, ferry, passport not stamped but waved off with a cheery smile. Remember to always carry your marriage certificate.

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[Bumper]

Thanks Roby2008, good luck with the new MH

 

[Blofeld]

I used to run a regulated business with offices in Paris, Frankfurt, Milan, Stockholm, Helsinki and Madrid. I’d spend most of each week travelling around Europe so I knew the ins and outs of around 30 airports. I couldn’t do that business now because the travel aggravation would kill me if the regulators didn’t catch me first. Later I added the US, China, Japan, Singapore and Australia and became very familiar with smiling sweetly and looking respectable, while carrying the right paperwork and all the electronic numbers and references in case.

The first rule of passport control is that the strictest interpretation has almost no downside while generous interpretation may have consequences. The job is to be suspicious, to follow the rules and not to think too hard.

We’re stuck with this, except for Ireland (RoI) to which I’m still a fairly frequent visitor.

 

[Orion]

Moral to this piece is handover the EU passport first then the UK one separately with the marriage certificate.

This is exactly what I intend to do when I travel to the EU with my Irish wife next month. I’m not taking any bets as to whether it will avoid an overzealous border official stamping it anyway, but there’s a chance it might help avoid it.

I’m also going to keep all ferry tickets and other documentation that will prove we were travelling together, and retain them in case I need to travel alone in the usual 90/180 qualifying period afterwards. Heaven help us non-EU spouses when the electronic checking system(s) are activated - I’m anticipating some additional delays while having to explain the situation and having documentation checked.

 

[Bumper]

Thanks Bolti for your specific answer to my query - you have positive experience that the entitlement that we think (hope) exists was acknowledged by an official at the point of emigration.

I am now encouraged to head South to Turkey in my MH in May, holding an Irish Passport accompanied by my UK Passport Holder wife, take as long as I want coming back and will not tailor my exit from Schengen to UK to the 90 day rule. If we don't get out together she can catch a rubber dinghy at Calais.

Thanks also to the other contributors - hope this re-airing of the subject has been useful, it certainly has to me.

 

[Garry - June]

"If we were moving to (for example) Spain, I could travel and stay with her in that country without limit as it is not her home or native country (the one issuing her passport), so EU rules apply."

Actually no you could not stay there "without limit".... if staying beyond the allocated time you would then become subject to residency rules that have always been in place... and that applied to Brits too before Brexit who thought they had a right to sit in say Spain for as long as they liked.... that never was the case.

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[Bolti]

Thanks Bolti for your specific answer to my query - you have positive experience that the entitlement that we think (hope) exists was acknowledged by an official at the point of emigration.

I am now encouraged to head South to Turkey in my MH in May, holding an Irish Passport accompanied by my UK Passport Holder wife, take as long as I want coming back and will not tailor my exit from Schengen to UK to the 90 day rule. If we don't get out together she can catch a rubber dinghy at Calais.

Thanks also to the other contributors - hope this re-airing of the subject has been useful, it certainly has to me.

Remember carrying your marriage certificate is compulsory.

 

[gus-lopez]

From my experience, entering or leaving the EU on a British passport will trigger a stamp unless you can prove otherwise.

Neither I or my wife had our passports stamped either in to the uk or out.
When leaving & asked for passports, including dogs, I handed them over as a stack,dogs at bottom + id card , then the wife's + spanish residency card then my passport + spanish residency card. As soon as he saw the residency card he handed the whole lot back. Never opened anything or looked at.
I always hand the residency card only first usually .If I come across a half with who stamped my passport we would all know about it as I would rip the stamped page out & give it back to him.

We are in process of moving from Britain to France. I need a visa. I cannot stay there more than 90days as spouse of her (as an EU citizen).

Yes you need residents card.

It is because she is French, and we are moving to France, so French (not EU) rules apply when it comes to me as her spouse.

Debatable unless they offer greater benefits to the eu citizen , your wife, which this would not appear to do.

It may appear counter-intuitive, but national immigration law takes precedence on such matters relating to the citizen (of the individual country).

No it does not :EU rules & directives always take precednce over national laws UNLESS the national law offers greater benefits of security to the citizen.

I can assure you the French have always taken the piss over eu directives & not enough people have taken them to the eu courts to get them inline.

 

[TDub49]

In a nutshell, before B Day, most, if not all, EU countries and other countries in Europe had "90 day" rules or similar. You could enjoy borderless travel but you could not just sit in the country of your choice beyond 90 days without eventually having to have a chat with the authorities and looking to formalise your residence in some way. They still have these 90 day rules so EU passport holders can't just up sticks and go and set up residence in another country beyond 90 days, although enforcing the rule without passport stamps could be a little tricky.

For us third country natives, instead of being able to spend up to 90 days in any EU country, we can only have 90 days in the whole EU area - logically the only way the EU can maintain the rules, hence being stamped in and out as we cross the hard border (NI excepted). Good luck to all those with partners with EU passports - what the rules say and how they are interpreted by a grumpy armed border guard at the end of a long shift could be two different things . . .

 

[62272]

Hi

I don't see the confusion. The rules are clear, even from 1st reading of the directive.

If you (as UK passport holder) are moving to the home country of your spouse, then the national (rules of your spouses home country), not the EU rules apply. These ‘national’ rules may be the general EU rules, or they may not. You have to ask the immigration department of the country on question.

If you are ‘travelling’ or moving to an EU country that is not the country of origin of your spouse, the EU rules apply, and as stated in the directive (rule), you can accompany your EU spouse unrestricted.

That is the difference, and source of confusion. If you (UK citizen) are going to your (EU) spouses home country, it is the rules of their country. If you are going to another EU country, it’s EU rules.

My example

I am British, my wife French. We are in process of moving from Britain to France. I need a visa. I cannot stay there more than 90days as spouse of her (as an EU citizen).

It is because she is French, and we are moving to France, so French (not EU) rules apply when it comes to me as her spouse. It may appear counter-intuitive, but national immigration law takes precedence on such matters relating to the citizen (of the individual country). She (and by definition, therefore I) face more hurdles going to live in her home country than we would if we wanted to go live in Germany or Spain.

If we were moving to (for example) Spain, I could travel and stay with her in that country without limit as it is not her home or native country (the one issuing her passport), so EU rules apply.

For us, French rules apply. That meant I had to have a visa. I had to book an appointment at TLS in London, wait several weeks for the slot, then go queue there for several hours and have the ‘interview’ then wait 3 weeks for my passport to be returned before we travelled. This is the reality for France post Brexit, even if your are married to a French person. It may be different for other EU countries who will naturally have different rules, or who may just apply the EU directive.

I hope this helps - there’s a lot of garbage and bad information out there. I have had people in this very forum trying to tell me I don’t need a visa which was patently untrue.

Thats exactly what my enquiries came up with, despite the protestations from numerous people on this forum.

As a French national entering France with my UK spouse she is required to have a French visa to stay in France beyond the 90/180 days permitted. This visa is FREE but must be obtained through the London TLS process. The French consulate visa wizard process will take you through the different variations of your particular circumstances and provide you with their answer, which in our case was to obtain a family purposes visa (free).

My advice is, if you are in this situation, go through the country you intend on staying for the majority of your time in the EU (in excess of 90/180 days rule), and approach that consulate‘s website for visa wizard to see what the requirements are.

 

[Roger J Holman]

This looks like a proper can of worms. Another scenario; My partner and I are not married, although we have been a couple for over ten years. She is French, but also has British nationality. It seems that we would be likely prohibited from Schengen travel in excess of 90 days.

A further puzzle, for those interested. One of my partners sons, who has dual French/British nationality, is currently resident in Switzerland, with his Austrian girlfriend, who he self is pregnant. It will be interesting to see who wins the struggle when they all try and travel anywhere.

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[Badknee]

From what I have read any Irish visitor is allowed to stay in a Shenzhen zone country for 90 days before notifying the authorities and asking for an extension. You can move between countries to extend your stay in the zone though.
Residents of mainland Europe get away with it because they don’t have to cross a manned checkpoint where their passports are checked unlike us.

 

[Orion]

This looks like a proper can of worms. Another scenario; My partner and I are not married, although we have been a couple for over ten years. She is French, but also has British nationality. It seems that we would be likely prohibited from Schengen travel in excess of 90 days.

Not necessarily. If your partnership is registered or recognised in the EU states you intend visiting then you should also qualify as per those of us married to EU spouses. Have a look here and follow the links where applicable.

 

[Dutch 68]

I am NL passport holder, my wife UK, my wife has her passport stamped at every occasion , I don’t even bother to discuss this, I always hand over marriage certificate with the two passports , they never look at that, we where in 2022 away for more then 8 months in the EU, no comments where made by any official at any point, the EU directive is very clear, so even if it was commented on then they would soon be proven wrong

 

[Bumper]

Since this forum relates to Continental Motorhome Touring, it could be useful to focus on the Schengen Area 90/180 rules and how they can be avoided by a UK Passport Holder touring in a motorhome with an EU Passport Holder. We might between us be able to form a conclusion on that fairly specific point. The bigger issues of residence and nationality is a very wide subject, well worth discussing since some principles seem to apply in both situations, but there also seem to be some differences.

My learning from the discussion so far is as follows:

1. It seems to be common ground that the EU Passport Holder can tour the Schengen Area in a motorhome for an period greater than 90 days, provided that they do not fall foul of individual country's residence criteria.
2. The issue that some of us want to gain more certainty on - i.e. whether the UK Passport Holder spouse can travel with the EU Passport Holder, within the law, and ultimately leave the Schengen Zone after a stay of longer than 90 days, without penalty - is not definitively clear and may still depend on individual immigration personnel at the point of exit. There is however good evidence that some of the group have done this successfully and no report (yet) of anybody being punished or sanctioned, so its probably worth a try.
3. The follow on query - are there limits on whether the spouse can re-enter the Zone without being impacted by the 90/180 day rule (the position will probably differ if the spouse is or is not travelling with the EU Passport Holder) - is an aspect to explore, but not of immediate concern.

 

[trevor 87]

I apologise for stirring this pot again - I realise that there is advice on the forum on this subject, but here and elsewhere there are a number of different views. I would like to ask the question about the position of a spouse travelling on a UK Passport with his or her other half travelling on an EU passport, based on personal experience rather than re-interpretation of the many, inconsistent information sources available.

May I ask a couple who have actually stayed within the Schengen Area for longer than 90 consecutive days, and have first hand knowledge, to be kind enough to describe the process they went through to enter the Area, whether they had any issues in the Area, and the process they went through to leave more than 90 days after entering, with the UK Passport holder avoiding penalties on the basis of the spouse having an EU passport.

I assume the penalties could include endorsement of the UK Passport to limit future visits, fines or other measures short of prosecution, but still be problematic if future extended visits are to be enjoyed. On our last long trip through Spain and Portugal, we had an appointment with an Immigration lawyer in Valencia who advised that although punishment for limited overstaying was unlikely, that the 90 day rule did apply to the UK Passport Holder and their right of access to the Area might be withdrawn.

I would be very grateful for the benefit of experience of people who have actually walked the "hard yards" themselves. Thank you.

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[Badknee]

According to Mr/Mrs Google

Can I enter Spain with an Irish passport?


You need a passport to enter Spain. While there is no minimum passport validity requirement, your passport must be valid for the planned period of your stay. All EU citizens who want to stay in Spain for more than three months have to register in person at the Oficina de Extranjeros (Foreigners Office).

 

[dawsey]

Thats exactly what my enquiries came up with, despite the protestations from numerous people on this forum.

As a French national entering France with my UK spouse she is required to have a French visa to stay in France beyond the 90/180 days permitted. This visa is FREE but must be obtained through the London TLS process. The French consulate visa wizard process will take you through the different variations of your particular circumstances and provide you with their answer, which in our case was to obtain a family purposes visa (free).

My advice is, if you are in this situation, go through the country you intend on staying for the majority of your time in the EU (in excess of 90/180 days rule), and approach that consulate‘s website for visa wizard to see what the requirements are.

Thanks. Be aware the visa is, despite all that is advertised through the process, not free. It looks like it is, but when you arrive you have to register online to ‘validate’ the visa to start your ‘residence’ and get free health care. When you do that, guess what, there’s a €200 fee…

gotta hand it to those frenchies… unlike dopey UK who has to play by the EU rules and when it decides it doesn’t like some of the rules it just exits the game… the french just pick and choose which of the EU rules they want to apply and ignore the rest.

I often wish the UK could have been a bit less Germanic and a bit more French or Italian in its dealings with the EU. To a Frenchman (or woman) it is very clear where real power, control and ‘sovereignty’ is within their country. As a result, there’s virtually no Frenchman who thinks the EU is ‘taking over his country’ or somehow ‘removing their sovereignty’ or whatever it was that persuaded the Brits to cut off their nose to spite their face.

 

[nicholsong]

I am posting here, although not having a spouse with an EU passport, because the OP asked for people with experience of exiting and entering Schengen, which some posters have.

Can one enter the Schengen area using only a EU country Residence Card, without presenting passport, and which card complies with the following:-

"All the above mentioned documents will bear: “Article 50 TUE” in the field: “type of permit” and “Article 18 ust. 4 Umowy Wystąpienia” in the field: “remarks”

My Residence card bears those wordings.

The reason I ask is that only presenting the card would avoid arguments about whether the officer should or should not stamp the passport, which he should not , but could cause problems in the future since I would certainly be more than 90/180 in Schengen as I live here.

 

[Roby2008]

Without further research I would say no, the residence card is not the same as an official ID or passport....
I use my residence card as an ID when in country (Germany) and do not carry my passport, when crossing any border I have my passport with me.
The residence card just proves your status in your country of residence, it is not a cross border travel document.
I hope this makes sense.

 

[nicholsong]

Without further research I would say no, the residence card is not the same as an official ID or passport....
I use my residence card as an ID when in country (Germany) and do not carry my passport, when crossing any border I have my passport with me.
The residence card just proves your status in your country of residence, it is not a cross border travel document.
I hope this makes sense.

Thanks, but what is an 'official ID'?

As I understand it my Residence in Poland gives me the right to travel within the EU, outside Poland under the Withdrawal Agreement as confirmed by the wording I quoted. The only way I can prove that right is by producing the Residence Card, because my passport does not contain that information.

So if I visited any country outside Schengen and returned to Poland by air on say 1st January and travelled to Germany on 1st September and had to produce my passport I would show as an overstayer, unless I had my Residence Card.

Do you agree?

But my question was about entering Schengen, which you personally think I cannot do without a passport, I understand.

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