EU Citizens with non-EU Spouse

EU Spouses

After a considerable amount of research and investigation, and assistance from Europe Direct I have finally found an official text that collaborates with the well-known, but otherwise seemingly impossible-to-prove theory that non-EU citizens can travel freely throughout the EU and subsequently the Schengen zone as long as they travel with or travel to meet their EU family members; and as long as they don’t spend more than 90 days consecutively in a single Schengen State.

Text in the legislation for Freedom of Movement and Your Europe guide and FAQ pages regarding travel within the EU didn’t provide any conclusive information. Indeed, they seemed to point in the opposite direction.

Practical Handbook for Border Guards

However, the following text is taken from the European Commission’s Practical Handbook for Border Guards:

Persons enjoying the right of free movement under Union law 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.  Read More

Rules for EU Family Members

The family member can stay in a single state for a maximum of three months.  After three months they would need to register as a resident.  Read More

Any time that an a non-EU family member of an EU citizen visits Schengen on their own, or they are left alone in Schengen whilst their EU citizen travels elsewhere, then the Schengen count starts/continues. Read More

Example Scenarios for EU Family Members

The Practical Handbook for Border Guards  gives some very useful examples (far better than the ones on the Your Europe website).  Read More

Comparison with EU Freedom of Movement Legislation

And finally, an interesting comparison between the text in the EU Freedom of Movement legislation and the Border Guards Handbook:  Read More

In this text it makes no mention of the third option – that is third-country nationals who are not subject to an Entry visa requirement.  Note that the referenced legislation also does not offer any clarity on that.  However, the Handbook clearly states that a third-country-national MAY need a visa if their home country is subject to a visa obligation and only in that case would they need to have a residency document to cancel out the visa obligation.  This is the equivalent passage: Read More


Frequently Asked Questions

The original post generated over 100 responses. Below a (heavily-edited for readability) set of the questions and answers:

Question:  When it says EU citizen, does it mean resident? My husband is a UK resident but has an Irish passport (his father was Irish).  He has never lived in Ireland so could he still be classed as an Irish citizen?

Answer:  Citizenship is demonstrated by holding, or by being entitled to hold, a passport issued by that country.  So if a person holds an Irish passport then they are classed as an Irish citizen.

Question:  We are traveling to Spain in May.  My wife has an Irish passport whilst mine is from the UK.  Can I stay longer than 3 months?

Answer:  As long as you travel to somewhere else at or before the 90-day point to avoid the three-month immigration restrictions then you can then immediately return to Spain for another three-month period.  It is only the need to keep within the immigration rules that “restricts” you as a mixed EU/UK group – a night over the border somewhere, or a city break to Rome or wherever will keep you above board (and probably in your wife’s good books too).  Just keep receipts/tickets or get a Schengen stamp if heading outside the zone as proof if it’s questioned at the border when you finally leave.

Question:  Are we checked between Portugal and Spain? I am in Portugal now.  Does it mean I can spend 90 days here and then up to 90 days in Spain etc?

Answer:  If you have an EU passport, then yes, you can spend up to 90 days in Portugal and then 90 days in Spain.  In fact, after a short break away from Portugal – and I don’t think there is a minimum time specified – you could return to Portugal for another 90 days as the 90/180 doesn’t apply to EU citizens

Question:  I am a German national married to a UK national who wants to spend a few days more in Spain than 90 days.  We will be traveling with an apostilled marriage certificate.  Can we just go to another country for a couple of days and then return to Spain and reset the clock or do we need a visa to stay?

Answer:  You can just travel to another country and back into Spain again (keeping receipts/evidence of the trip just in case evidence is requested). Because when the UK national is accompanied by their EU spouse then the spouse’s rights pass to them, they can travel without Schengen restrictions, it’s just immigration rules that affect them if they stay in one country for more than 3 months continuously. It is always worth keeping evidence of those trips that the UK national carried out accompanied for when/if they travel unaccompanied in future.  This makes it easier to show that those earlier travel days didn’t count towards their allowance.

Question:  Is there anyone that has proven this? Have they been questioned on being in the EU>90 in 180 or just do it with no problem? We are going to try Fuerte-ventura, but my husband is worried about what will happen when we go through immigration at the airport.

Answer:  If being separated so he cannot show that he is with you is the worry then do note you can both go through the non-EU line together.  However, it’s unlikely that you would be asked to separate if you show your EU passport on approach to the queues, most border staff just want to get people through and away.  If it’s a situation where there’s a huge non-EU queue and a short EU queue, they’ll try to put anyone who qualifies “by proxy” (family members, residents) through the shorter queue for example.  Separating the two types of travelers is designed to speed throughput, those who need little passport scrutiny (EU passport holders) being able to whizz through keeps things moving.  If everyone is in a single queue, then those who need passport scrutiny hold up those that don’t – i.e. everyone is slowed up.  And taking the whizzers out of a slow queue also shortens the slow queue.  Your husband will still need passport scrutiny (and a stamp) but one slow mover in the fast queue makes little difference overall so it’s generally permitted.

Comment:  I, a national of an EU country, and my British husband have exceeded 90 days in Schengen in the past year without any problems or questions.  We always present ourselves together at border control, in the EU queue if there is one.

Question:  As a Spanish national (born in the UK and living here permanently but my parents are Spanish) is my wife restricted to the 90-day rule when visiting Spain if she is with me? Or in other words, if we stay for 3 months, come back to the UK but want to go back for another 3 months a few months later is that allowed?  Also, would she need a Visa before traveling? I’m assuming she does.  I am aware that if I stay over 3 months I have to register locally.

Answer:  I’m assuming from your question that you hold an EU passport.  If your UK wife is traveling with you then Schengen doesn’t apply, you should carry evidence to prove she is your spouse (marriage certificate).  Do note that her passport will still be stamped on entry and exit, this is because at any point after you have entered Schengen together you may travel off to different places – you may need to fly back to UK for something or other, in which case those days that your wife is alone in Schengen will count towards her Schengen allowance.  It means that you will both need to keep a good records of your movements in order to prove that your wife hasn’t overstayed by herself at any point.  If you always travel together that should be pretty easy – it’s really only if she wants to enter the Schengen zone on her own that her Schengen time will be scrutinised.

As a UK national she will not need a visa for tourism – UK nationals a visa-waivered for short stays of up to 90 days.  She will need an ETIAS once that system comes online – although that won’t be to the end of 2023 on current estimates.  This is a security check and your being a EU citizen doesn’t override that necessity (or at least, it doesn’t how the system is currently proposed).

As you have correctly mentioned immigration rules still apply to both of you so you would need to leave Spain before you had been in, continuously, for 3 months.  However you just need to leave Spain to break the stay and then can both return without waiting 90 days and start another 90 day stay before having to leave again.  Obviously, the automatic tax residency rules kick in if you spend 183 days in Spain so bear that in mind.

Question:  I have an Irish passport, and my wife has a British passport.  I’m just about to start the residency process, once I’ve got mine then my wife will apply for residency as my spouse, the advice we’ve received says this is an easier route.  In the meantime, is my wife allowed to stay in Spain beyond her 90-day limit?  The advice section on here seems to suggest that she can, if this is so, please can someone provide a link to any official guidance?”

Answer:  Quick answer – yes, she can.  She too can/must apply for residency as the spouse of an EU citizen within 90 days. 

Question:  Would having a day trip to Gibraltar break the stay?

Answer:   I think it would need to be a weekend stay but Gibraltar would certainly count as “outside Spain”.  The weekend is my thinking based on how days in Schengen are worked and applying that to immigration (which may be incorrect), but if a person spends any time in the Schengen zone on a particular day, even if the person arrives at 23:55, then that day counts as a day taken off their Schengen allowance.  If someone disembarked a ferry arriving in France from the UK at 23:50 and then got back on the same ferry which left an hour later (00:50) they would use two days of their Schengen allowance because they were in France on two separate dates.  (Harsh but true…  ).

Working on that logic:  if a person is in Spain for part of one day, then that would be classed as a day that they were “in Spain”, even if it was only for a few hours.  Say you crossed the border at 8 am on Saturday, you would have been in Spain on Saturday, if you crossed back over the next day at 8 pm then you would also be in Spain on Sunday, so I have a feeling that that wouldn’t be classed as having left.  Leaving on Monday would mean the whole of Sunday you would purely be in Gibraltar so there’s no arguing that you hadn’t “broken your stay” in Spain.  I may be overthinking it, perhaps just having a passport stamp is enough, but it seems logical that a day trip wouldn’t count as having left if you slept in your own bed both nights.  Certainly, for those people getting married in Gibraltar, they must spend at least one night there to be classed as legally “being in Gibraltar”.  As I say that’s just my thoughts on it, there’s probably some way of finding out for sure though.

Question:   I have a UK passport and my wife has a German passport.  I have a newly apostilled copy of our 1975 marriage certificate with a recent translation in Spanish (by a recognised juridic translator).  My wife, as a German citizen, can visit Spain for an unlimited time (not planning to be long in one place so local registration should not even be needed).  My question:  what more do I need to do to be able to legally accompany her on these travels without my usual limit of 90 days being applicable – and must my passport still get stamped if we end up in 2 different channels at passport control?”

Answer:  For the first part of your question – yes that’s exactly the type of thing that is needed – it’s good evidence of the relationship.  For the second part – you will get your passport stamped anyway – it’s a requirement now you are a third-country national, even when travelling with your EU family member.  This is because at any time when you are in the Schengen zone your wife could leave you temporarily to visit somewhere else, in which case those days without her would count towards your Schengen allowance.  It is imperative that you keep evidence of your time traveling together to use as evidence as to what is Schengen allowance time and what is travel-with-EU-family time, in case you are asked.  This would be particularly necessary if you were to enter the Schengen zone on your own in the future as at that point your earlier visits would count against you without that evidence of accompanied travel.

Question:  If I am not married but have an EU partner whom I live with, what documents could I show to prove this? Would a joint council tax bill be sufficient or would I need something more legal from a lawyer?

Answer:  Unfortunately, the UK lacks official routes for this sort of thing – in Spain, you could be registered as Pareja de Hecho to make it official, but the UK doesn’t really have an equivalent. 

Question:  My wife is from Latin America and became naturalised as a Spanish citizen a few years ago.  It is her Latin American citizenship that appears on our marriage certificate, which is from before her naturalisation.  Would this alone (along with her DNI, of course) be sufficient proof of my marriage to an EU citizen?

Answer:  Her passport will show she is an EU citizen now of course and if the details on the marriage certificate are the same as on the passport i.e., they show the same details, then that should suffice.  you can also register your marriage at the Spanish Consulate.

Question: We’re a gay married couple (married in the UK). He’s English, and I’ve got an Irish passport. As far as I can guess this approach won’t work in EU countries that don’t recognise gay marriage e.g. Poland, and Hungary. Would you happen to have come across a list of countries where this should work, or perhaps that’s another thing I should ask the Your Europe Advice lawyers?

Answer: It might be advantageous for you to check with Your Europe Advice which countries your marriage document is valid in, you’ll have a better idea of your travel plans so it will probably make it easier for you to check directly.

Question:  How do you actually prove a relationship with an uncle or aunt?  It’s easy to do a mum or dad by birth certificate but aren’t other relationships tricky?

Question:  Do you have to prove a relationship to the EU citizen you are visiting? For example, my sister-in-law is an EU citizen and that’s whom we visit when we go to Spain.  I am not sure how I would prove the relationship.  Could I use a birth certificate? Or does the legislation only refer to spouses?

Question:  After reading the above I’m still not understanding properly my position …my sister and her family have lived in Spain for 41 years …her daughter has a Valenciano partner and a daughter of 5 by him …I want to be able to come to Spain for 90 days to spend my time with them…do I then qualify to be able to go anywhere else in Europe or Schengen without having to wait a further 90 days in the UK.  Our parents have died so my sister is my family member …can anyone make the position clearer for me

Answer:  Those relationships aren’t covered by the legislation.  It only applies to immediate family members.  Generally speaking, if it cannot be proved by birth or partnership certificates then it’s not a qualifying relationship.  The EU defines family members as immediate family upwards and downwards (parents/children) or registered partners. This only covers husband/wife/registered partner, direct descendants under age 21 and direct ascendants.  So, for example an EU child can bring their UK parent, or an EU husband can bring his UK spouse, an EU parent can bring their UK child, and so on.

These relationships can be proved by marriage certificates or registration of partnership documents for the first, and by birth certificates for the latter two.  Or a combination of both when bringing, for example, the UK stepson of a UK/EU couple (marriage certificate for EU/UK relationship and birth certificate for a parent/child relationship) or traveling with the mother-in-law of a UK/EU couple (again marriage certificate for UK/EU relationship and birth certificate for the child (in this case the spouses birth certificate) to parent relationship.

There is also a facility to travel with a dependent family member who may be outside of this direct relationship.  So for example an EU citizen may bring their non-EU niece/cousin/ uncle etc if that person is their registered carer.

Question:  I’m sure I’ve seen an official document somewhere saying this sort of travel flexibility was not permitted, that the partner with the EU passport would need to be ‘exercising’ their rights of residence in order to make this all work.  I was going to send that over to the lawyers and basically say ‘Why are you right and they’re wrong’, and hopefully get a good answer! Does that document I’m mentioning ring a bell?

Answer:  It does make a difference if the partner is non-EU AND non-visa waivered.  The partner would then need to have a residency card to waive the visa requirement and therefore the Schengen restrictions.  I’d interpreted the law in the same way (the residency requirement bit that you mention) and it’s why I contacted Europe Direct to get the definitive answer. 

Question:   Do you know of anyone who has actually tried this out? It’s one thing to have all your paperwork ready, but if they refuse to even look at it, I wonder what happens?  Is it automatically a ‘black mark’/fine/banned from Schengen or do they actively need to do something to make that happen?

Also, I see you referred to Europe Direct.  I was just about to write to the lawyers at Your Europe Advice to clarify this and to specifically ask their opinion on where the Border Guards Handbook departs from what’s written in the law.  Is there a copy of a useful response from the Europa lawyers anywhere?

Answer:  It’s extremely unlikely for someone to be black-marked on the spot.  To get as far as giving out penalties they would have had to have scrutinised the traveler’s documents/evidence and found something lacking.  If the required documents are produced then there wouldn’t be any need to black mark a passport, there’s even time given to rectify any problems if documents can’t be produced on the spot.  I’m 100% sure it would be really frustrating, and stressful, to be put in the position of having to prove your rights to some grumpy official, but the outcome should result in penalty-free traveling.

Question:  I wonder how border control knows how long you have been in a country if there are no checks between countries?  Can you travel from Spain to France without checks?  I would love to put this to the test but don’t trust it quite yet.

Answer:  If you keep receipts for the stays in other states that should be sufficient.  The onus will be on you to show evidence you were elsewhere if they ask for it.  It’s fairly difficult these days to be in a country and not leave some sort of digital footprint.  Debit/credit card payments, hotel booking/receipts, phone records saying “welcome to X country”, even Google tracking your location via your phone means we all generally leave a mark.

Question:  Will the guards still stamp the non-EU passport

Answer:  This is what the Practical Handbook for Border Guards’ says regarding stamps on page 56:

“The travel document of family members of EU, EEA and CH citizens who are third-country nationals must also be stamped unless they present a residence card … “

Comment:  In the last two entries to Spain – Madrid in November and Tenerife in January – we presented ourselves together at border control, and I mentioned we’re husband and wife.  My British husband’s passport wasn’t stamped on either occasion.

Comment:  My husband has a British passport and I have an Irish one.  They didn’t stamp his last summer but did in the autumn.  I think they’re as confused as we are!

Question:  We just came back from Spain; I have an Irish passport and my husband the UK.  They wouldn’t even look at our evidence of marriage or the letter I had stating his passport shouldn’t be stamped.

Answer:   They should not stamp an EU passport.

Question:   can you please confirm once and for all as so much different information going around?  My husband and I are Irish citizens living in the UK How long can we stay in Lanzarote before we have to take up citizenship and where do I get advice on this to see if it is a good idea? There is much confusing information around, and we have an address in Ireland.

Answer:  It would be a Residency you would need, not citizenship.  If you are both EU citizens then if you only intend to stay in Spain temporarily, i.e. you aren’t planning to live here but just want to take an extended vacation < 90 days then you do not need Residency.

Comment:   I live in the U.K.  but have dual U.K./Irish citizenship by my parents were Irish and were born in Ireland – I only needed to apply for an Irish passport.  For my children, they have to jump through an extra hoop, because although I am Irish, I wasn’t born in Ireland, so they have to apply for citizenship first before they can apply for the passport.

This Post kindly submitted by Rachel Warne from Facebook Group: After Brexit in Spain

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