American Wife with UK Citizen Husband - Free Movement.

[Casa]

You should be aware that member wayki appears to have lost interest in the discussion and hasn't visited the forum for the last 2 days.

[gokulatti]

Due to post number 9 they are seeking advice to fly via Zurich to the UK.
They are starting a fresh 3 month period in Switzerland and they are starting a fresh 3 month period in Spain on the way back.

You can't possibly think it works this way. hypothetically in your case a family member of British citizen can stay in Spain indefinitely without the british citizen exercising rights by just commuting to another member state and then coming back to Spain for a fresh 3 month and so on and on. This is called total abuse of the system and just because there is open border within eu and possibly no one will find out doesn't mean you should not follow the law. The law is that, the eu national/family member have to report there presence in a member state. OP has been living in Spain for more than 14 months along with the family member, maybe they never reported their presence maybe they did however you can't possibly expect to get 3 months after 3 months and so on in the same member state without exercising rights on the name of free movement. It is not that hard to get a health insurance and fall under self sufficiency instead of not following the directive.

[waqasars]

I guess 3 month period will start after reporting the presence. By law its started when somebody enter in the country. But authorities can know the actual period on the basis of registration certificate.

[mgb]

This is called total abuse of the system and just because there is open border within eu and possibly no one will find out doesn't mean you should not follow the law.

Your definition of abuse is not covered from the directive or any contract.
In the example of the thread opener if they are standing in Zurich at the desk and tell the officer we landed 2 ours ago in Switzerland and want now to exercise our right of exit to leave Switzerland due to annex 1 article 1(2) of the free movement contract between Switzerland and the Eu what would you tell them.
On the way back if they standing at the desk in Spain and tell the officer we want to exercise our right of entry due to article 5 of the directive what would you tell them in that case.

[gokulatti]

You tell me, when they came to spain 14 months ago, what did they say? and while overstaying 14 months arent they supposed to follow article 7? and now they leave and come back to spain what should they say. I am rationalizing it as 'abuse of the system'. And where exactly in the directive is said they get fresh 3 months one after another in spain?. your interpretation of the directive might just you your interpretation and not necessarily a legal basis. You are only talking about right to enter/exit/stay for 3 months but never have you understood are cared that for 14 months they were in effect living/residing without due process like every other eu should or does do i.e reporting/exercising rights so please don't give the wrong idea to people who seek help that they can get away with fresh 3 months one after another which in effect makes them reside indefinitely in any specific member state.

[gokulatti]

I guess 3 month period will start after reporting the presence. By law its started when somebody enter in the country. But authorities can know the actual period on the basis of registration certificate.

exactly, they should have reported the presence the first time they came in, yes the registration certificate could be a proof. the discussion is that if the eu national/family member never reported nor got the registration done which is likely in this case, to just go out of spain and coming back again stating fresh 3months can be done in a loop for a specific member state. now under the assumptions that no one find out or with minimal to no consequences doesn't make it right.

[mgb]

You tell me, when they came to spain 14 months ago, what did they say? and while overstaying 14 months arent they supposed to follow article 7?

From the first posting:
"Her 3 month Visa will run out soon."

Btw. a eu citizen and family member cannot technically overstay. They can only miss their duty to register for a stay longer 3 month if such a duty is in place in the guest country.

[Casa]

With all due respect, is there any point in continuing with this 'debate' as the OP gave up participating 4 days ago!

[gokulatti]

Btw. a eu citizen and family member cannot technically overstay. They can only miss their duty to register for a stay longer 3 month if such a duty is in place in the guest country.

Although it isn't illegal it most certainly is unlawful.

With all due respect, is there any point in continuing with this 'debate' as the OP gave up participating 4 days ago!

I agree, it has become pointless at this point since the conversation is drifting away to legality.

[wayki]

Hi everyone - I haven't gone away - I just was busy.

Ok - some clarity good folks, and thanks so much for the info thus far.


1) UK citizen male and American wife in Spain - she has outstayed her Shengen visa. He is not a Spanish resident. Both have tons of print outs regarding free movement with them, marriage certificate, proof of not being criminals, will both always travel together. He owns property in Spain.

2) They seek to fly to small airport in UK for a 2 week visit in a short while.

3) Later in the year they seek to fly or drive (whichever is better for them) to Switzerland for a few days visit, then return to Spain.


From my understanding, unless the border people can prove the American wife is a danger or a criminal, there isn't much they can do. They could maybe give a fine or demand proof of residential application.

Also it seems all a bit of a coin flip - depends on who is on duty and their understanding and mood.

Also I read a flight into Switzerland from Spain would not meet any immigration staff as it is Shengen to Shengen - there is no hard line for passports etc to be checked. ?

Thanks, and it does seem there is much grey area in this e.g If the American wife travels under EU Family law she is ok - but under American Shengen law she is not ok.

[wayki]

bump.....pls help good people

[wegiwegi]

Also I read a flight into Switzerland from Spain would not meet any immigration staff as it is Shengen to Shengen - there is no hard line for passports etc to be checked. ?

in Switzerland you will have to show both passports, there are two lanes for passport control , EU passports and non EU, did you

[wayki]

Also I read a flight into Switzerland from Spain would not meet any immigration staff as it is Shengen to Shengen - there is no hard line for passports etc to be checked. ?

in Switzerland you will have to show both passports, there are two lanes for passport control , EU passports and non EU, did you

Hi, did I what?

Would we be wise to go through the EU passports together and claim free movement with our documents.
Or is it better to cancel flights and drive into Switzerland? (would rather not this option).

[wegiwegi]

Well, I don't know anymore what you try to accomplish.
Driving into Switzerland is not like crossing France into Spain, where there is no border control, Swiss border control at Geneva will ask for your papers no matter what, I am Swiss, I know how it works, every time I get back, I have to show my ID, even having Swiss plates on the car.

[wegiwegi]

Well, I don't know anymore what you try to accomplish.
Driving into Switzerland is not like crossing France into Spain, where there is no border control, Swiss border control at Geneva will ask for your papers no matter what, I am Swiss, I know how it works, every time I get back, I have to show my ID, even having Swiss plates on the car.

Anyway, you should be able to flight in, just for visiting as you planed, shouldn't be a problem

[wayki]

Anyway, you should be able to flight in, just for visiting as you planed, shouldn't be a problem

So my friend.....

Leaving Madrid they won't mind the couple doing "free movement" out to Zurich?
Entering Zurich airport "with free movement" is ok?

Leaving Zurich to Madrid airport "with free movement" is ok?

[wegiwegi]

He has a UK passport, so travel freely in Europe
She has a US passport, she can visit schengen countries without a visa, only if she doesn't spend more than 90 days in a six months period.

When you arrive in a Schengen member country, you will still need to show your passport and go through customs. At this external border, if approved entry, you will receive a stamp with the date indicating your arrival into the country. Once admitted, you will have free access to move within the Schengen region as long as you do not spend more than 90 days within a 180-day period.

If she has already a stamped passport, maybe many questions could be asked, etc etc

[wayki]

If she has already a stamped passport, maybe many questions could be asked, etc etc

Here is states that as the American female has a USA Passport, she does not need a Shengen Visa for Switzerland, as she is not staying more than 90 days there.

https://www.vfsglobal.ch/switzerland/uk ... -Visit.pdf

[mgb]

The family member of a eu citizen has the right to stay for up to 3 month in every single eu country without preconditions if accompanied by the eu citizen. The contract between Switzerland and the eu give the same rights.
It is not the business of Switzerland to check if they fulfilled their duty to register in Spain.
Beside that there is no passport control for intra schengen flights in Zurich.

From the internet page of the Zurich airport:
Travel within the Schengen area
When travelling between countries that adhere to the Schengen Agreement, there is no passport control at Zurich Airport.

The problem is to leave the Schengen area for the UK.
There can be questions.

[wayki]

Thank you so much - this clears much up - I think I just needed to hear this from many different angles to get the complete picture.

[wegiwegi]

Take a minute to let us know what happened in your trip, sure will be an interesting reading

[mgb]

If there are problems the couple can refer to article 134 of the schengen convention.

Article 134
The provisions of this Convention shall apply only in so far as they are compatible with Community law.

The eu directive 2004/38 is community law and the contract about right of free movement between Switzerland and the EU is Community law.
In other words schengen law is not applicable.

[Bobthemoggie]

Hey Guys,

Is it possible to apply for Type-C schengen visa, while inside schengen area.
Situation:
Family members arrived on schengen visa 7 months ago. 3+ months has passed after it has been expired.
They're awaiting RC under FM rule.

In meanwhile could they apply for schengen visa (either a Visit alongwith EU citizen/ relocation with view of exercising FM rights alongwith EU cit).
Also Is it possible to apply to EEA country such as Iceland/Norway/Switzerland, may be just for visit

thanks