Research by a reader suggest that Brits (and other non-EU nationals) with EU spouses are not bound by the 90/180 day rule when travelling in the Schengen area in the company of their spouses.
“I’ve been trying to find out from varied sources over the last few months whether being an UK citizen married to an Irish citizen I was exempt from the EU 90/180 day rule,” says reader John by email. “I had been led to believe the only way was through residency.”
John contacted the Europe Direct Contact Centre, an official office of the EU, and got a response that helps clarify the rules from the EU perspective.
“I hope the reply below from the Europe Direct Contact Centre will be useful for British or other third-country citizens, married or in a partnership with E.U. citizens, who wish to escape this rule without taking out residency,” says John.
The EU Direct Contact Centre response copied below suggests that Brits and other non EU nationals married to EU citizens are not bound by the 90/180 rule when travelling with their spouses in the Schengen area, but Spanish lawyers say this does not mean they can spend more than 90 consecutive days in Spain without the appropriate visa. The text below taken from an email from the Europe Direct Contact Centre forwarded by John has not been checked and may or may not be reliable, so you use the information at your own risk. Consult a Spanish lawyer on this question if you want to be sure of the current situation.
Dear John,
Thank you for contacting the Europe Direct Contact Centre.
A citizen of the UK does in principle not require a visa to travel for a short stay of no more than 90 days within any 180-day period in the Schengen area.
The fact that you reside with your Irish wife in the UK is, on its own, not sufficient to waive the limits of the 90/180-days rule if you intend to travel on your own to a Schengen Member State.
However, if your wife is travelling with you to a Schengen country, or joins you in a Schengen country, the 90/180 days limitation does not apply. Accordingly, any stays in the Schengen area together with her will not be taken into account when you travel again on your own. Please be aware, however, that in this case you might need to have documentation to show on when you were travelling with her and when you were not.
For further information, we recommend that you contact the authorities of the country you would like to travel to, more info here and here.
If you wish to remain in Spain with your wife for more than 3 months, you may both need to register. You can find information on the necessary procedures here.
Please note that as Ireland is not part of the Schengen area and because your wife is Irish citizen, this does not apply if you wish to travel together to Ireland. For information on the Common Travel Area between Ireland and the UK, please see here.
We hope you find this information useful. Please contact us again if you have other questions about the European Union, its activities or institutions.
j.roberts512@btinternet.com says:
“If your spouse is an EU citizen you don’t have to worry about the 90/180 day rule”
Yes this is good news indeed for some … I note two things and ask one question.
The 90 rule looks like you can overcome by this Europe Direct contact centre response to john, but remember the Tax residence rules still apply if you stay above 183 days you will have to pay Spanish income Tax unless you have exceptional circumstance. Also the ruling or should I say response from the Europe Direct contact centre is not a legal statement; it’s only their understanding. Please let their understanding be legally accurate if challenged.
Okay a rhetorical question I suppose, what does it mean if your spouse is an EU citizen, my wife has a Spanish TIE residency, but does that qualify for an EU citizen? If you are a resident of a country … I suspect not… however any view on that question would be very welcome. As I would love to join my wife for more than 3 months a year.
John
pete.dickie@icloud.com says:
Hello,
I have just read these articles with interest. I am an Irish citizen married to a British wife. We are newly retired and wish to spend 5 months of the year in southern Spain spread out between spring/early summer and autumn. My wife also travels for a few long weekend breaks on her own with girl friends. My understanding is that when my wife and I travel together then those days are not counted for the90/180 day rules.
Can anyone confirm if I am right in my thoughts and then how do I prove that we were travelling together? I can foresee difficulties when leaving the EU and clearly don’t want to break the rules! Many thanks
BeeLazy says:
Your interpretation according to the reply from the EU as quoted is correct. The law is no more than 183 days in a tax year – which is Jan-to Dec in Spain. Over 183 days and you are liable to register for Tax. You intend staying for 5 months or 150 days.
Bee
Chris M says:
Let’s hope the EU sees sense soon enough and allows visa free travel for 180 in 365 days – as we do for EU citizens – am not sure Spain is looking forward to having to stamp 18 million + passports on the way in and then date check them on the way out to see if someone has ‘overstayed’ their welcome.
The impact and practical application of that, due to Covid travel restrictions, hasn’t been felt yet, but in time it will be seen to be stupid to just have the rule there so Brits are ‘discomfited’ and ‘penalised’ by their decision to leave almost 5 years ago.
We never had the 90 days rule before freedom of movement and the Euro, if we were staying to work, we used to have to have a work permit back in the 80’s and 90’s and yep if you were there longer than 6 months, as in any country, you had to become a tax resident. It will all revert to that at some point I think.
JMG says:
I don’t see why the EU should change anything, you knew what you were voting for and were fully aware that you would have to live with a completely different set of rules in the event of Brexit, no? Your government could have negotiated this ruling in the Brexit negotiations but they obviously didn’t think it was important.
Why don’t your government simply change the rule in the UK to 90/180? That way, it’s a level playing field, sorted.
Chris M says:
The EU don’t have to change anything that doesn’t suit them, I just think that Spain invested heavily in infrastructure and services for ‘residential’ tourism and I rather think that not allowing that access to be for 180 days is actually shooting themselves in the foot.
JMG says:
It’s arrogant and entitled to expect other countries to change their rules because the UK decided to leave the EU. UK nationals will be treated exactly the same as other third country nationals meaning you will have to leave after 90 days. I think that is fair and reasonable.
Don’t kid yourselves that the Spanish authorities are not up to the task either, they will catch you and penalise you if you overstay and quite right too.
Perhaps Spain and Portugal could set up a scheme whereby UK nationals could stay for six months for a fee.
Chris M says:
Just quickly, I hope I am not being arrogant or entitled, or expecting other countries to change their rules because the UK decided to leave the EU, if Spain and Portugal think the 90 day rule is fair and reasonable, then I have no problem with it. I just think that in reality it is not in their ‘own’ best interests to apply that rule, their interests for ongoing residential tourism, would be far better served by having a 180 day rule in 365 days. It has nothing to do with the UK leaving the EU, the rights or wrongs of that, or any notion of punishment or unfair benefit to UK citizens, it is simply in the best interests of Spain and Portugal, and correct me if I am wrong, but I think individual countries can set their own visa rules.
Victor Johnstone says:
it’s not for Spain to change Schengen unilaterally. the english majority voted in their usual xenophobic way but us non self-harmers would like to visit eu countries, spend and enjoy as before.
Paul says:
This is the type of ridiculous comment that makes me wonder if the person writing has any clue what actually happens. (Sorry to be blunt, Chris.)
Spain and the rest of the Schengen area already track dozens of millions of non-EU visitors to the Schengen area annually. Adding a few million or even 10 to 20 million visitors from the UK is just not going to be a huge problem.
They’re not being “penalized” by their decision to leave- at least not by the Schengen nations. This was a voluntary choice by the UK; they could stay in the EU and be treated as EU nationals, or they could leave and be treated like the rest of the non-EU nationals are treated.
“We never had the 90 days rule before freedom of movement and the Euro…”
Yeah, well, things have changed from what it was decades ago.
Chris M says:
You can be as ‘blunt’ as you like Paul, but I think you miss my point, I personally voted remain, but am happy enough with the decision to have left, it’s done, we will all live with it. But, as in an earlier reply to another post, it does Spain and Portugal particularly no favours to insist that Brits can only be in the country for 90 days out of 180. It will have a potentially massive and negative effect on their need for residential tourism, and why…? Why… would they want Brits to not have that 180 day access? What benefit is there to that rule? Isn’t it more cutting off one’s nose to spite the face? And I don’t think its ridiculous to not be spending time, effort and energy tracking or tackling folk who have gone beyond the 90 days. And yes, things have changed from decades ago, and what Spain might find is that Brits find a different place to go and stay over the short, mid and long term.
Nick says:
I too am a UK citizen with a lovely Irish wife, although the good news here seems to be completely contradicted by the sentence, “If you wish to remain in Spain with your wife for more than 3 months, you may both need to register.” Is anyone able to clarify?
dizzy says:
Yes, that is correct. It has always been the case that if you stay in another Eu country for more than 3 months to register, not every one did and they were therefore living under the radar so to speak.
JMG says:
Thanks, that is excellent news. The question is, will the partner with the UK passport have their passport stamped on entry to Spain?
Obviously the EU partner will not have their passport stamped.
dizzy says:
Yes, the person with the UK passport will have their passport stamped.
Victor Johnstone says:
i think the in/out record is collected electronically.
Andrew says:
!! THIS ARTICLE IS PARTLY INCORRECT !!
This rule only applies when you are in EU States other than your partners EU State. So it’s correct for John when he goes to Spain with his Irish wife as she is exercising their right to free movement in ANOTHER EU STATE. It WOULD NOT apply if his wife was Spanish when travelling to Spain as Spanish law would apply as the partner is not covered by EU free movement laws in his home country.
dizzy says:
It is not about the partner not being covered by EU free movement laws in his home country……It is only about the rights of the EU citizen, an EU citizen has the right to have his non EU wife/Daughter/Son travel with him and not be subject to the 90/180 rule.
dizzy says:
Partly incorrect!!!
My husband is Spanish and i am British, we live in the Uk and he has it on good authority from “Your Europe” that i will not be subject to the 90/180 rule if we travel to Spain together.
Pat Fleck says:
What if your non-eu partner is not your wife/husband but has been in a long-standing relationship. Does that quality?
dizzy says:
Yes Pat it does qualify, as long as cohabitation can be proved.
andrewl says:
Question on British Passport holder – with Dutch EU residency
I wonder if anyone is clear on this subject?
As I work and have residency permit in Netherlands, my trips tp Spain would be from within Schengen, and therefore there are no passport control entering Spain. Therefore I assume the 90 day rule would not be checked for me as long as i have the Dutch residency and travel from Netherlands?
Mark Stücklin says:
Andrew, if you live in the Schengen area I’m pretty sure you can travel freely within it without any restrictions. That’s how I understand the rules but I haven’t asked for official confirmation. Perhaps try contacting the Europe Direct Contact Centre.
dizzy says:
As far as i am aware although you are a dutch resident you are not a citizen of the Eu and you hold a British passport.Although you are protected under the withdrawel agreement to live in the Netherlands this only applies to the country you are resident..
dizzy says:
To clarify further, if you travel within the Schengen area then you will find there are no retrictions, borders etc.. but that does not mean that the law of 90/180 days does not apply to you because you are a resident of the Netherlands…I can not see a problem because i doubt you will be asked or stopped to check your status but should you ever find yourself in a situation where you are asked for ID passport details etc then the rule of 90/180 will apply…
Mark Litherland says:
This does, indeed, look to be good news for us.
Pre-Covid we would regularly tour Europe for periods of 3-5 months. I am an Irish passport holder but my wife is UK only. We always travel together and wouldn’t usually stay >3 months in any one country.
As I’m reading this it looks like that we’re not breaking any Schengen rules because the 90/180 doesn’t apply to my wife because she’s travelling with me and we’re not subject to any of the country residency rules because we’re not in any one country for a period beyond 90 days.
ElCid says:
I’m confused
sorry to ask this question but having read much information on this subject I can’t find the answer
I am my wife and I live in the UK
I am a British citizen and hold a British passport
My wife holds an Irish passport which grants her EU citizen status
As I understand it so long as we travel to the EU together we have the same rights and are not restricted to the 90/180 days rule
Is this correct ?
But what happens at Spanish Passport Control when they stamp my passport ?
I should be ok on entry but on exit will I be classed as overstaying if we have exceeded 90 days ?
What happens then ?
Sorry again to ask but as I say I can’t find an answer anywhere.
Mark Stücklin says:
ElCid, that is correct to the best of my knowledge, but like all matters related to the bureaucracy, you never know what will happen at the sharp end. But personally I wouldn’t worry about problems leaving. I can’t see them ever detaining you for overstaying, especially if you are travelling with your wife with an EU passport.
Jo Donnelly says:
Love this thread! This could be a stupid question… I am irish with EU passport my partner British. We have been together 18 years live together engaged but not married. I take it this means nothing and we must be married? How do you prove your married or not when at passport control you don’t always change your name or carry a marriage certificate????
dizzy says:
No you don’t have to be married, just proof of cohibitation.
Footnotes says:
Can anyone answer this for me please? My husband has dual nationality with an Irish and UK passport whilst I have just a UK one. When we travel together to Spain and subsequently leave do we need to go through the EU passport lane or the UK one to ensure that my UK passport does not get stamped?
Thanks
dizzy says:
Footnotes…. it doesn’t matter which gate you go through, your passport will be stamped when you enter and when you leave because you are a Uk national. I travel with my Spanish husband to Spain and my Uk passport is always stamped. Its fine, don’t worry about it. If you are worried about the 90/180 rule then take your marriage certificate as proof of marriage.
SJAdams says:
I am British and have residency in the UK and my wife is Spanish with residency in Spain – we travel back and forth a lot ! I have always assumed that when I travel to be with my wife in Spain, the 90/180 rule applies and I have been measuring it strictly to push it to the limit. But reading this thread, I am now wondering if I am restricted by the 90/180 day rule when I am in Spain with my wife. We are not “travelling” together when we are there, we are in her place of residence.
I take it you live in the UK so when you travel to Spain with your husband, you are “travelling” as your residence is presumably the UK and your EU spouse is travelling to another EU country ? Or does it not matter where your spouse “lives” if they are an EU citizen and so if they live in an EU country and you go to stay with them … but as a UK resident and citizen the 90/180 rule does not apply as you are “with” your EU spouse in their EU country of residence ?