EU Citizens with non-EU Spouse II

EU Spouses

I am Australian, and my wife is a dual passport holder (Australia and Ireland).

I have quizzed the relevant embassies in Australia and the EU legal advice website and attempted to use the freedom of movement provisions for non-EU spouses in Spain and Italy.  Good news for Euro-nomads with an EU spouse but there are some catches you need to be aware of.

EU Freedom of Movement

The EU legislation Rights of Citizens to Move Freely gives all EU citizens the right of residence in another Member State for up to three months.  For longer than three months you must prove you have sufficient financial resources and comprehensive sickness insurance cover.

Scenarios for Travel with non-EU Spouses

There are multiple possible scenarios:

Your non-EU spouse has dual nationality including a Schengen country passport.  Umm, why are you reading this?

Your non-EU spouse has obtained a Residents Card from a Schengen country.

Your non-EU Spouse holds a passport from a Annex II Country.  Or from an Annex I Country

Your non-EU spouse is travelling with you, the EU passport holder.  Or not.

And then – your travel plans: you plan to visit one or more Schengen countries for no more than three months each; or you expect to stay in one or more Schengen countries for more than 90 consecutive days.

Spouse has a 2nd Passport from a Schengen Country

Well, in this case your spouse is not a non-EU citizen (note the double negative).  He/She is an EU citizen with true freedom of movement for up to 3 months per Schengen country.  Beyond that EU citizens and their spouse must register for residency.

Non-EU Spouse has a Residents Card from a Schengen Country

If the non-EU spouse already has a Resident Card, yippee, no Schengen constraint for up to 3 months per Schengen country.  Same requirement regarding registration for residency is staying in one country for more than 90 days.  And no stamping in or out at Schengen external borders.

Non-EU Spouse is from an Annex I Country

Ouch, a world of pain for you. Relatively speaking.  Read More

Non-EU Spouse is from an Annex II Country

All five CANZUKUS countries are listed in Annex II.

Annex II refers to an Annex in the EU regulations specifying those countries whose nationals are exempt from obtaining an actual paper Schengen Visa  but only for stays of no more than 90 days in any 180-day period.   In other words they have a visa waiver or perhaps you could imagine it as a ‘virtual visa’  for short stays.  But NOT for “long” stays in the Schengen zone. BTW “long” is the bizarre EU terminology for any Visa for only 91+ days across all the 27 Schengen countries.  Absurd!

Anyway, with some minor caution which I will amplify later – when traveling with you your non-EU Spouse – She/He has the same ‘freedom of movement’ rights as you.  Make sure you can prove your marital status: the gold standard would be a Marriage Certificate from the country of your EU passport, officially translated and apostilled.

If traveling without you, and without proof the objective of the travel is to join you, then your spouse is subject to the 90 days in 180 days rule on the Schengen ‘virtual’ visa.  I do not know how you would prove you are joining someone.  Wave to them from across the Arrivals Hall?  The entry problem goes away if your spouse has Schengen days up their sleeve.  He/She can just get stamped in as normal.  Note: your EU spouse will always be stamped in and out – the Freedom of Movement explicitly requires this for EU Spouses without a Residents Card.

If your Spouse is out of Schengen days, perhaps you should travel together more often?  But also note that selected countries may allow your non-EU spouse to enter under a bilateral visa-waiver agreement.  This is another ‘virtual visa’ unrelated to the Schengen zone and EU spousal rights.  More detailed information is in other Posts on Schengen-Shuffle.

Legal Advice

I sought advice from the free EU Legal Service ‘Your Europe Advice’ with an example question deliberately framed to mimic an example in the Practical Handbook for Border Guards

Question:  “I am an Irish Passport Holder, and my husband is Australian without a residence card. We would like to travel together as follows: Italy 3 months, France for two months and Malta for three months, thus staying in the area without internal border controls for a total consecutive period of eight months. Could you confirm this is OK please?”

Answer:  “In theory, the 90-day rule does not apply to family members of an EU citizen traveling with the EU citizen. This is confirmed in the Practical Handbook for Border Guards issued to Schengen countries on page 17. This applies in theory because this rule is not explicitly laid down in either Rights of Citizens to Move Freely or the Schengen Borders Code, nor has it been explicitly confirmed in case law.

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 Rules Governing Movement Across Borders which states as follows: This Regulation shall apply to any person crossing the internal or external borders of Member States, without prejudice to the rights of persons enjoying the right of free movement under Union law.

The Practical Handbook for Border Guards is not intended to create any legally binding obligations upon Schengen States. The Practical Handbook is intended to lay down guidelines, best practices and recommendations relating to the performance of border guard duties in the Schengen States.

There is therefore a 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.

Your non-EU spouse is not subject to the 90-day limit when travelling with you throughout the EU. This applies even if you presently reside outside the EU.

There is no need for your non-EU spouse to apply for any specific visa or residence document given that you will not be staying more than 90 days in any specific EU country. However, you should also carry a certified copy of your marriage certificate.

We advise you and your non-EU spouse to carry a copy of your marriage certificate alongside your valid passports, as well as travel tickets for the past 180 days. You should produce this advice to immigration officials in case your wife’s presence in the EU is questioned. Specific reference should be made to the extracts from the Practical Handbook for Border Guards.

You can read more on this subject in this post.

More than 90 Days in One Country

You can stay longer than the 90-days in any one Schengen country but then EU citizens and their non-EU spouses have to apply for residency.   This is no simple exercise.  You can read how I did this in Italy in this post.

The key problem with Residency for many Euro-Nomads is that it exposes a boat or motorhome to VAT.  This is because VAT-free status requires that the owner not be habitually (tax) resident in the EU.

The residence registration requirement for EU citizens is (or should be) separate from issues of tax residency.  One common test of tax residency in many tax treaties is 183 days in the country, along with other evidence like the centre of financial interest etc.  More information is available in this post.

Friends engaged lawyers on this point when planning to stay in Italy for more than 6 months.  Despite a bilateral tax treaty in place between Australia/Italy preventing double taxation on income – in the end, they still shied away from the tax implications of becoming residents to extend their time in the Schengen zone.

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