What if you are married to an EU national and don’t want to live in the EU but would like to stay there for holidays longer than 90 days? If you belong to one of the 70 odd countries not requiring a Schengen visa then this can perhaps be possible. But it is not that straight forward.
Most people like to travel. And sometimes 90 days is not enough. So what if you are married to an EU citizen and just want to travel around together? Currently the EU has the Schengen zone. A group of most (not all) EU countries working together on open borders within and controlling short stays of up to 90 days per every 180 days.
This right to travel longer than 90 days with your spouse is not explicitly laid down in either Directive 2004/38 or Regulation 2016/399, nor has this been explicitly confirmed in case law. 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; […]”
You can also find this in the Practical Guide for Border Guards under chapter 2, Checks on persons enjoying the right of free movement under union law, section 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.”
The Practical Handbook for Border Guards is not a legal document in the sense of it being law or regulation but gives Schengen border guards their guidelines, and best practices. Therefore there is the 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.
Thus, when entering the Schengen zone be very clear of your purpose and that you both travel together and won’t be staying in any one member state longer than 90 days but more than 90 days in the Schengen zone. This may confuse the officer and as far as I know the immigration system has no options to mark your entry like that. You should certainly mention this when leaving, so as to ensure that you do not get an overstay marking against yourself in the system. In addition you need to of course evidence your marriage (or formally registered partnership). To be absolutely sure that they won’t be difficult about the marriage certificate ensure that non-EU marriage certificates are legalised with an Apostille.
If border officers are really difficult they may ask you to evidence that you were not longer in any one Schengen country. Can you? With hotel/camping receipts/bookings, fuel receipts, dated photos at land marks, GPS tracking, etc etc that could perhaps be evidenced. But don’t expect border officials to have the time to review this at the counter, you may be asked to step into the office or place in a waiting area. If you were staying with friends and family or otherwise travelling freely this may be more difficult. However, seen the border guard instructions they are more likely not to be too difficult if they are willing to look it up.
ETIAS (European Travel Information and Authorisation System)
Keep in mind that with ETIAS, now delayed until mid-2025, there may be changes coming. Further EU regulations may limit the Freedom to 90 days, or the ETIAS may make allowances to continue this. Personally I don’t see any harm in people travelling/holidaying for more than 90 days or even the whole year. They still need to support themselves and ultimately contribute their tourist $£€ to the host economies. Another major reason why many countries don’t really police the 90 days limits for EU nationals within Schengen.
I would recommend that people wanting to use these rights prepare themselves to the possibility of difficult immigration officers and challenges. Ultimately this will be resolved, but it could in worst case scenarios result in delays at the border (missed flights/ferries) or overstay being recorded and needing to be appealed/corrected.
EES (Entry & Exit System)
It is estimated that late 2024 (October?) a modernised Entry and Exit System (EES) will replace EU borders stamps. I totally dislike the idea as this would mean that you don’t have your own evidence stamped in your passport anymore. But, OK, the world seems to want to modernise to digital systems which never crash or can be hacked. The worry is that this system also includes the framework for national and EU/Schengen rights, and then this subject may be forgotten. “Sorry, I don’t see this right of entry/stay on my digital tick list!” I have no knowledge of how this system will work or incorporate these aspects. Again, it may push the EU to clarify or create additional rules/limitations. Hopefully there is a snagging period with these new systems where officers can still override/stamp etc. Likely that there will be discretionary powers anyway.
EU Nationals 90 Days Limit
Yes, formally within the EU Freedom of Movement rules an EU citizen can not stay longer than 90 days in another EU country unless they register themselves as being resident. However, with Schengen not having any internal borders the authorities can’t easily check if an EU national has been longer than the 90 days in an EU country. Sometimes they do check, for example if the person owns or rents a property long term and the authorities want to regard the person as resident (especially the tax office/department). Then they may investigate and check utility or bank records before claiming you to be actually resident.
However, the authorities mostly don’t bother and EU nationals could argue that they spend a day or weekend over the border in a neighbouring country which then restarts that 90 day period. So, be aware that there is this limit so that you can avoid any such issues, for example when declaring that you were 8 months in your (not so holiday) home. EU nationals are often not fully aware of the limitations applying to them and may incorrectly regard EU Freedom of Movement rights unconditional. Which it is not. It is very reasonable and fair but still conditional.
Don’t get me wrong. I wrote this after people found themselves in this situation. They asked me to provide a clear rule/law to show the authorities. It is not that clear and thus I also hear a lot of people being fined as overstayers etc. My guidance is not advocating you to try this, but how to deal with this if you do it anyway, or thought it was straight forward. It is not that straight forward. So, unless you have real good reasons to “try this”, maybe better to avoid. Don’t forget that leaving Schengen (some EU countries are not yet in Schengen) also restarts that 90 day period. But then sometimes the border officer can be difficult about the 180 days, 90/180 day premise.
Marriage or Registered Partnerschip/Civil Union?
For Freedom of Movement purposes the EU will regard a Registered Partnership/Civil Union as equal to marriage, Council Regulation (EU) 2016/1104. But some countries, for other aspects, only respect marriage. This may create (official) confusion at times. Know your rights. See:
https://europa.eu/youreurope/citizens/family/couple/registered-partners/index_en.htm
For the British (Apostilles)
https://www.gov.uk/get-document-legalised
This article was published 04 July 2023, changes to treaties, laws, regulations, policies, systems, etc may change aspects over time.