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For the next couple years, my family and I are planning on traveling all through Europe with our camper. I am a Croatian (and US) citizen, as well as my kids. My husband is a US citizen with Croatian residency. Will the 90/180 Schengen rule apply to us? We will travel to each country in the Europe but will never stay longer than 3 months in each one.

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    If the 90/180 rule applies to your case (if -- I don't know), then you're only allowed to spend 90 out of 180 days anywhere in the Schengen zone: you don't get a separate 90-day allocation for each country. You wouldn't, for example, be able to spend 90 days in France and then 90 days in Germany, without leaving Schengen for 90 days between the two. Also, bear in mind that immigration officials are usually supicious of people who try to max out their entries by repeatedly staying for about 90 days, then leaving just long enough to reset the counter. – David Richerby Dec 28 '18 at 19:34
  • Does your husband have an Article 10 residence permit? – Michael Hampton Dec 28 '18 at 21:52
  • He has a temporary residency permit. – Umarlene Dec 28 '18 at 23:26
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    @DavidRicherby the 90/180 rule does not apply here. I'll post an answer in a few hours if nobody else does before then. – phoog Dec 28 '18 at 23:51
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    Any other thoughts on this? The EU Direct response I received says “it seems that your husband would still have to adhere to the 90 days in any 180 days rule even if he may not need a visa as he is from a visa waiver country.“ Using “seem” in their reply is a strange choice. – Umarlene Jan 22 at 21:03
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Will the 90/180 Schengen rule apply to us?

No. It does not apply to you because you are a Croatian citizen. As long as you are together, it does not apply to your husband because when he is with you he is a "person enjoying the right of free movement under Union law" for the purposes of the Schengen Borders Code. The definition is found at Article 2(5):

5. ‘persons enjoying the right of free movement under Union law’ means:

(a) Union citizens within the meaning of Article 20(1) TFEU, and third-country nationals who are members of the family of a Union citizen exercising his or her right to free movement to whom Directive 2004/38/EC of the European Parliament and of the Council applies;

The quotation omits point (b), which is not relevant. Your husband falls under the second clause of point (a).

This has the interesting consequence that your husband is not a third-country national for the purposes of the Schengen Borders Code whenever he is traveling with you or to join you. This follows from the next definition, Article 2(6):

6. ‘third-country national’ means any person who is not a Union citizen within the meaning of Article 20(1) TFEU and who is not covered by point 5 of this Article;

Whenever your husband is covered by point 5, that is, when he is traveling with you or to join you, he is therefore not a third-country national.

The Schengen Borders Code applies the 90/180 rule to third-country nationals. It is mentioned in Article 6, "Entry conditions for third-country nationals." Therefore, it does not apply to your husband.

However, the Schengen Borders Code only concerns entry and exit. It doesn't say anything about conditions for remaining on the territory of an EU state. For that, we have to look at the free-movement directive, 2004/38/EC. This lays out several requirements that individual member states must implement in their national law with respect to EU citizens and their family members. ("Family members" is fairly narrowly defined in the directive, but definitely includes spouses.)

The requirements include:

  1. Family members traveling with or to join an EU citizen must be admitted with a valid passport (Article 5(1)) unless they pose a threat to "public policy, public security or public health" (Article 27).

  2. Family members may be required to have a visa to enter only if the family member is a national of a country whose citizens require a visa for a short visit (Article 5(2)). Because your husband is a US citizen, and US citizens are not required to have visas for short visits, he cannot be required to have a visa.

  3. Close family members (including spouses) must be allowed to reside in an EU country "for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid ... passport" (Article 6(2)).

  4. Each country may limit the right of residence for more than three months to EU citizens who are workers, self employed, self sufficient, or studying and their family members (Article 7).

  5. Family members of EU citizens in the preceding point may be required to register with a deadline of not less than three months. A residence card must be issued in these cases (Articles (8) and (9)).

We will travel to each country in the Europe but will never stay longer than 3 months in each one.

As you can see, there is nothing about the Schengen area in any of this. Your husband, therefore, does not violate the directive as long as you do not remain in any country for longer than three months.

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When traveling as a Croatian citizen, the 90/180 rule does not apply

  • to avoid confusion, you should not travel with a US-Passport within the European Union

You husbands temporary residency permit is not a Article 10 residence permit, since you are a Croatian citizen (and not another EU-Citizen).

For a US-Citizen the 90/180 day rule applies while outside of Croatia, based on his citizenship and is a better option than an Article 10 residence permit - which only allows that person to travel with or join the EU-Citizen.


Sources:

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    Many EU countries do grant article 10.residence cards to family members of their own citizens even if they don't have to (Spain and Italy are examples, but I don't know about Croatia). Furthermore, all EU countries must grant article 10 residence cards to family of their own citizens if the Surinder Singh conditions are met. So it is not actually possible to know whether the card is an article 10 card. But that doesn't matter, because US citizens don't require a visa if they stay for less than 3 months in each EU country under free movement. – phoog Dec 4 at 1:03
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    Because the family member is traveling under free movement, the Schengen codes do not apply, and therefore the 90/180 rule does not apply. The three-month limit of the free movement directive applies, and this is reckoned separately for each country. I may be able to post an answer tomorrow, but it's very busy at work these days. – phoog Dec 4 at 1:05

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