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Exceeding the 90 day rule if spouse has Spanish passport.

Posted: Thu Dec 9, 2021 2:01am
3 replies132 views4 members subscribed
Mike27

Posts: 7

1 helpful points

Location: Albir

Joined: 3 Nov 2020

My wife has a Spanish passport but we reside in the UK. Can anyone clarify the situation if we stay more than 90 days in any 180 day period? We have been told by the consulate that our stay will be unrestricted but reading various articles suggests it’s not that simple. 

killjoy

Posted: Thu Dec 9, 2021 7:52pm

killjoy

Super helpful member

Posts: 3230

1852 helpful points

Location: Orihuela Costa

Joined: 4 Nov 2017

Posted: Thu Dec 9, 2021 7:52pm

You will enjoy the same rights as your spouse, Apply for a "permanencia" at any "extranjeria" showing proof of marriage.

Mike27

Posted: Fri Dec 10, 2021 8:27am

Mike27

Original Poster

Posts: 7

1 helpful points

Location: Albir

Joined: 3 Nov 2020

Posted: Fri Dec 10, 2021 8:27am

killjoy wrote on Thu Dec 9, 2021 7:52pm:

You will enjoy the same rights as your spouse, Apply for a "permanencia" at any "extranjeria" showing proof of marriage.

Thank you for your reply, much appreciated. However. on checking It seems that I would still be restricted to 180 days a year although the “permanencia” would allow an extension of the 90 day period once a year. I was hoping there would be no restrictions on length of stay in any year. 

oadbyman

Posted: Fri Dec 10, 2021 2:22pm

oadbyman

Helpful member

Posts: 232

164 helpful points

Joined: 14 Jun 2020

Posted: Fri Dec 10, 2021 2:22pm

Mike27 wrote on Thu Dec 9, 2021 2:01am:

My wife has a Spanish passport but we reside in the UK. Can anyone clarify the situation if we stay more than 90 days in any 180 day period? We have been told by the consulate that our stay will be unrestricted but reading various articles suggests it’s not that simple. 

You are entitle to travel with your EU wife this comes from the following a bit long and does explain that you can almost live in the EU as long as you do not spend more than three months in any country at a time, return I understand is allowed but each country has its own restrictions as to when you have to become resident especially for tax).

You have the right to reside subject to the rules for EU citizens in any EU country.

Regulation (EU) 2016/399 of the European Parliament and of the Council

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;

Schengen Borders Code (Regulation (EC) No 562/2006) lays down a single set of common rules on external border checks on persons, entry requirements and duration of stays in the Schengen Area.

https://ec.europa.eu/home-affairs/system/files_en?file=2019-10/c2019-7131-annex.pdf

on page 7 & 8 you find this

6. 'Persons enjoying the right of free movement under Union law12' are nationals of EU Member States, EEA countries and Switzerland, as well as members of their family, regardless of their nationality accompanying or joining them.

7. ‘Members of the family of EU, EEA or CH citizens enjoying the right of free movement under Union law’ are, irrespective of their nationality:  the spouse (independently of the sex of the spouse13) and, if this is contracted on the basis of the legislation of an EU or Schengen State and recognised by the legislation of the host EU or Schengen State as equivalent to marriage, the partner with whom the EU/EEA/CH citizen has contracted a registered partnership;  the direct descendants under the age of 21 or dependants, including those of the spouse or registered partner;  the dependent direct relatives in the ascending line, including those of the spouse or registered partner. 

Starting at the bottom of page 17 you find

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 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).

. When the family member travels on his/her own, 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.

*Examples

An Indian national married to a French citizen may accompany his French spouse to Germany for three months, Spain for two months and Italy for three months, thus staying in the area without internal border controls for a total consecutive period of eight months.

A Japanese citizen is married with an Estonian citizen and has never come to the EU before. The Japanese citizen accompanies his Estonian spouse to Italy for one month. Just after that month, the Estonian spouse leaves Italy and returns to Japan to work. The Japanese citizen can remain alone for another 90 days (the limit of 90 days in any 180-day applies).

A Chinese citizen married to a Swedish citizen spends alone, for business purposes, 15 days in Austria. The Swedish citizen then joins him and they spend one month in Portugal. Just after that month, the Swedish spouse leaves the EU. The Chinese citizen can remain alone for the remaining 75 days in the 180-day period (the limit of 90 days in any 180-day period applies, but the stay performed together with the EU citizen should not be counted (in this example, the one month period) when assessing the respect of the limit of 90 days in any 180-day period.).

Section 2.8 on page 21 explains the documentation required.



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