If you’re planning to travel to the EU this summer, you can expect to encounter new digitised EES border controls that have been brought in to replace manual passport stamping.
One of the main purposes of the system is to clamp down on people who over-stay their allotted number of days in the EU. But what are the rules if you’re in a documented relationship with an EU citizen?
If you’re travelling in the Schengen area with your EU partner and have a passport that entitles you to visa-free entry (that includes citizens of the US, UK, Canada and Australia), you’re not subject to the EU’s 90-day rule, which limits visits to 90 days in a 180-day period.
READ ALSO: How does the 90-day rule work in Italy?
That doesn’t mean no rules apply to you whatsoever, but they’re less strict than the ones in place for most non-EU nationals.
Spouses or registered partners of EU citizens can spend up to three months a time in any EU state other than the one their partner is a citizen of (more on this below) with no overall limit, as long as they’re accompanying or joining their EU family member.
That’s because EU nationals have the right to freedom of movement within the bloc, and as their registered partner, you have the right to stay with them.
The immigration experts at the Italian law firm Mazzeschi provide the following example:
“Marco, an Italian national, lives in France. He travels for an EU-wide research project, spending three months in Austria, three months in Germany, and two months in Luxembourg. His American spouse, Susan, can join him for the entire duration of his stay in each country because her stays are not subject to an overall time limit.”
Couples who want to take advantage of this option should bring their marriage certificate or civil partnership documents to provide border officials with proof of their relationship status.
The situation is a little less clear for citizens of countries that require a visa to enter the Schengen area (e.g. India or China), though the rules do explicitly state that the exemption should benefit all partners of EU nationals “irrespective of nationality”.
If you’re in this situation, it’s a good idea to consult an immigration lawyer or contact the authorities of the countries you plan on visiting before setting off on your trip.
When it comes to the EU country where your partner is a citizen, national immigration rules apply.
In Italy’s case, a non-EU citizen can stay with their Italian partner in Italy for up to 90 days (you may need to apply for a short-term Schengen visa, depending on your nationality).
If you want to move to Italy with your Italian partner for more than 90 days, you should apply for a type-D family family reunion visa before joining them in Italy, or apply for a coesione familiare (family cohesion) residency permit when you both arrive.
It’s important to bear in mind that as a third-country national, you only benefit from the 90-day rule exemption when accompanying or joining your EU partner. When travelling alone, you’re still subject to the 90-day limit.
As the EU’s Practical Handbook for Border Guards says:
“When the family member travels on his/her own [...], the normal regime concerning the length of the short stay will (re)start to apply, as the conditions for benefiting from the facilitations concerning the free movement of the EU, EEA and CH citizens and their families are not met anymore.”
What if you want to do some travelling with your EU partner and some by yourself?
In this case, the time you’ve spent travelling with your EU partner in the Schengen area should not be counted towards your 90-day allowance – at least, not in theory. The handbook states:
“The previous stays performed in the area without internal border controls accompanying or joining the EU, EEA or CH citizen should not be taken into account for the sake of the calculation of the compliance with the 90/180-day rule”.
In practice, demonstrating you’ve not over-stayed, particularly when using EES machines that haven’t been built to consider nuanced situations like these, might be complicated.
If you want to take advantage of the exemption, it’s best to track down a border official every time you enter and exit the Schengen area – and make sure you have the relevant EU directive and EU border guard handbook at the ready as proof of your rights.
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