90/180 days non eu married to eu spouse

Hi,

Maybe your best bet is going into or emailing a couple of gestoria who should know the correct answer according to the law.

Good luck and hope you get an answer soon. :)

AFAIK the rules for Irish citizens haven't changed since Brexit. If you want to stay longer than 90 days in Spain you should register for residency. That said, many UK residents ignored this rule when the UK was in the EU and it wasn't strictly enforced by the Spanish. Now, since Brexit, all UK visitors (non Spanish resident) have their passport stamped on entry. 

I suspect that your husband would be OK with his Irish passport but your UK passport would be stamped. 

If you want to stay longer than 90 days and you can't get an EU passport, then It should be possible for your husband to become Spanish resident and then you could use your family relationship to also gain residency, rather than having to go via the NLV process.

I agree with Trotter that you both are bound by the 90/180 day rule. The Spanish authorities were lazy in enforcing the rules before brexit and allowed EU citizens to overstay. Now its different times......if you want to stay over 90 days you need to apply for residency. 

Steve 

Your spouse a citizen of the EU can only stay in Spain longer than 90 days as a resident. If he is not a resident here is sone info from the EU website:

https://administracion.gob.es/pag_Home/en/Tu-espacio-europeo/derechos-obligaciones/ciudadanos/residencia/estancia.html

https://administracion.gob.es/pag_Home/en/Tu-espacio-europeo/derechos-obligaciones/ciudadanos/residencia/obtencion-residencia/info-general.html

https://europa.eu/youreurope/citizens/residence/residence-rights/index_en.htm#in-another-EU-country-1

I hope this helps

Simple answer, no. Even your EU passport holding hubby can’t stay more than 90 days in Spain without registering as resident. 

Hi we traveled to France recently ( my wife has an Irish passport) 

They stamped my passport after a long discussion 

I then took advice from grow your Europe on the situation this is their Response

Dear Sir, 

Thank you for getting in touch with Your Europe Advice. 

You have a follow up query relating to your and your wife's entitlements to live/travel to/in France, under EU law. Your follow up query is about the way in which you may be allowed to be admitted into France. Specifically, whether you have a right for your passport NOT to be stamped when entering France, as the family member of an EU citizen. 

You are a UK citizen, and your wife is a dual Irish/UK citizen. For the purposes of this query, we have previously confirmed that your wife is able and entitled to rely on her Irish nationality to invoke EU law in her and your favour when travelling to other member states of the EU. 

You arrived in France on September 2 and presented both passports (UK passport for you, Irish passport for your wife). 

The French border officer was about to Stamp your UK passport, but you requested her to stop on the grounds that that you are the family member of an EU citizen and travelling with your wife and thus, that you should be treated as an EU citizen and your passport should not be stamped. The officer was not particularly helpful but did call her senior officer. 

You reiterated your objections, to which the French officer responded by insisting that your passport must be stamped, further explaining that you were not subject to the maximum 90 day in a 180 day period rule under Schengen law (Regulation 399/2016). 

You are concerned by the fact that if your passport is stamped on arrival (and again on departure), that you will have no evidence to avoid a charge of exceeding the 90/180 day rule which is applicable to third country citizens when travelling on their own. 

Contrary to your understanding concerning the 90 days maximum stay in a 180 day period, we must confirm that neither you or your wife are subject to the 90 day maximum stay in the Schengen territory in a rolling 180 day period, on the grounds that you are married to an Irish citizen, thus vested with rights of free movement under Directive 2004-38. 

This was also confirmed correctly by the French border official. 

Concerning the stamping of your passport. 

The matter is governed under article 11 Regulation 399/2016. 

Where you hold a Residence permit issued under Directive 2004/38, your passport is not to be stamped (article 11 paragraph 2 Regulation 399/2016). Thus, should you apply and obtain a residence permit either in France or in Spain, as previously advised by our Service, you would have grounds to request not for your UK passport to be stamped. 

Given that you do not appear to hold a residence card issued under the above cited Directive, your passport must be stamped up by Immigration Officers, upon entering and exiting the EU. 

However, the fact that your passport is stamped does not preclude you from being able to invoke your rights under EU law in order to establish that you are not subject to the maximum 90 day limit in a 180 day period for the whole of the Schengen territory. 

You must be in a position to prove your claim by reference to the following evidence: 

Your wife's Irish passport, 
Your marriage certificate, (note that France or Spain may require the marriage certificate to be legalized and translated by an official translator, unless the marriage certificate can be issued in accordance with the requirements under Regulation 1191-2016). 
Your UK passport, 
Proof that you are travelling together to France (travel bookings). The latter refers not only to the actual travel in question but also to all travels in the Schengen territory for the previous 180 days. You must be able to establish that you have travelled in the company of your wife, as the family member of an EU citizen, when travelling in the Schengen territory in the previous 6 months. 

Also note that all the above is without prejudice to the limitations or restrictions laid down under national law, concerning the COVID measures. 

For advice in Spain: 

https://www.abogacia.es/conocenos/consejo-general/colegios-y-consejos/ 

For more information about the current restrictions in Spain, you are referred to the following website: 
http://www.exteriores.gob.es/Consulados/LONDRES/es/COVID19-UK/Paginas/Requisitos-de-entrada-en-Espa%C3%B1a.aspx 


Best regards, 

Your Europe - Advice 

To submit another enquiry, please visit Your Europe Advice, 

Very helpful response, however don't forget that Spain has additional laws, always has done.  France and Spain are still sovereign countries and have slightly different rules - they share Schengen rules but also have their own laws.  Anyone, EU or not, cannot legally stay in Spain, unless applying for residency, longer than 3 months.  However, the difference is that with an EU passport you can leave Spain, just drive over the border into France, Gibraltar or Portugal, and return to Spain 24 hours later to restart your next 3 month stay.  How they know whether you have or have not left is of course the issue, they won't, but worth getting some proof in case it is ever queried.  Plus Spain has a tax law that anyone spending 183 days or more in a calendar year in Spain automatically become liable for filing a Spanish tax return and paying all due taxes.  In the past these things have not been enforced with EU nationals, but that doesn't mean it wont be in the future.  Spouse of an EU national has the same rights as long as travelling together.

Thank you for your comments / observations . However I think you will find that one can travel alone to join their spouse how you would prove this I don’t know but having worked at U.K. airports  in law enforcement  this was usually done on a telephone call. Secondly Gibraltar is now in Schengen so can’t pop over there for a day !

Best regards