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CAB Spain has been in contact with the EU Commission on the exemption of the 90 days in 180 ruling for non-EU spouses of EU citizens.
Our consideration has always been that if a EU citizens has chosen to take up Freedom of Movement rights and moved or travels to another state that is not his/her own, they should not have their movement restricted due to the restriction of movement of an non EU spouse. Simplified “if your non EU spouse is regulated under the 90 days in 180 day ruling, the EU would be restricting the Freedom of Movement of the EU spouse.”
We have also advised citizens who have asked us about this to contact the European Commission for a resolution. The first responses were vague and not satisfactory. The latest citizen to contact them, received a clear response posted below:
“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 spouse in the UK (CAB note* Consider this as relating to any EU spouse or partner with whom you have a stable relationship. Consider registering that relationship even if with a notary deed) 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 spouse is travelling with you to a Schengen country, or joins you in a Schengen country, the 90/180 days limitation does not apply. (CAB note* presuming they mean that if the non EU spouse is travelling with or to meet the EU partner) 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:
Your Europe/citizens/embassies
You can also find further information 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:
Documents and Formalities
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:
Common Travel Area Between Ireland/UK
“Information provided by Europe Direct is not legally binding”.
CAB Note*. We should take into consideration that some difficulty could arise at borders due to frontier control staff who may be unaware of the regulations. Links on the information provided to border control below.
There appears to not be any guidance to border control on proof for de facto partners. Best to carry something that proves a stable relationship.
January 30, 2022-Due to the requests for clarity from those affected, further information after revising the EU and Spanish royal decree and any amendments to the latter.
The EU Directive states:
The partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the directive 2004 legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;
Confusion can arise if the The Spanish royal decree on FOM is not read with due diligence as the first article states:
“To the couple with whom they maintain a union analogous to the conjugal union registered in a public registry established for that purpose in a Member State of the European Union or in a State party to the European Economic Area, and provided that said registration has not been cancelled, which must be sufficiently accredited”.
An amendment to the particular article above is added to the royal decree but under the title “entry and residence” only. This could also confuse those not trained in reading laws and The interpretation of these.
Personally I find the actual amendment on the State Bulletin of 2015 concise which states:
In the case of a de facto couple, it will be considered that it is a stable couple that which proves the existence of a lasting bond. In any case, the existence of this link will be understood if a period of marital cohabitation of at least one continuous year is accredited, unless they have common offspring, in which case duly proven proof of stable cohabitation will suffice.
The above amended article is found under the title of “on entry, free movement and residence in Spain of citizens of the Member States of the European Union and others States party to the Agreement on the European Economic Area”.
Also “Where a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence”.
Note* These are my findings after carefully revising and cross referencing directives and royal decrees. I suggest that you do not need to be registered as a partner and that proving a stable relationship is sufficient for entry and exit with your non EU spouse/partner into Spain.
Should any of the interested parties wish for confirmation or not of my findings from informed immigration lawyers, they should consider owning the Lawyer Smart Card. www.lawyersmartcard.eu from where I will instruct a lawyer.
Do consider that the 90 days ruling for staying longer than three months applies to the Schengen area. A spouse can leave Spain after a three month stay for example and spend up to 3 months in France or any other EU country.
There is also no stipulations for how long non EU spouses need to be outside of Spain before returning for a further three months.
Please also read the examples provided for passport control on the movement of non EU family members.
Update April 9, 2022.
Border control can only be effective if border guards are aware of the regulations they work under. Unfortunately not the case with many.
I continue to liase with various departments of the European Commission as there is not a specific document that would allow ease of travel for Non EU spouses/partners of EU citizens. I have also enquired on the EES (entry and exit scheme for third country nationals. Below is the response from one of the departments and I am waiting for further information from the EC.
“When EES enters in to operation, it will be used by border guards, only for the purpose of keeping a record of entries and exits from the Schengen Area of Third-Country-Nationals (TCN).
The decision of the border guard on how to register the TCN in EES, if needed, will be his/hers based on the documentation presented, much the same as it is today.
The manner in which a spouse will have to document their status will not foreseeably change.
Therefore, it will not be EES that has to differentiate individual statuses, but the border guard.
We do know that prior to the launch of EES, the European Commission is planning to run an information campaign that will explain the changes and what to expect at border crossings in the future”.
In the meantime, I continue to try to make the European Commission aware of what is lacking for these couples when travelling. Please do read the information on the links of guidance for border control.
Useful information for TIE and travelling.
Many UKNS who are family members of EU citizens when updating to a TIE did not ask for the family member card. These were in fact given to UKNS non family members in the early days in error. Hence the screenshot below has a red cross when not for family members.
TIE for non EU family members of EU citizens. Should assist when travelling and not subject to the 90 day in 180 day ruling in the Schengen area.
