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I am an EU citizen with an Irish passport. I reside in the UK with my wife who is a British citizen. We have a house in Spain which we visit regularly for short visits. We realise that we require a visa to stay in Spain for more than 3 months in one visit (long stay)

However, I believe that the 90/180 day limitation does NOT apply to me and my wife when travelling in the Schengen zone together, because if the 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. I have seen articles on the internet (including this forum) which confirms my understanding that we are not bound by the 90/180 day rule but there is much confusion about this and I am nervous that ground staff at Spanish immigration will not know the regulations. I wrote to the Spanish Embassy in Manchester who replied that WE ARE bound by the 90/180 rule - my Spanish solicitor says we should take their advice. I really want to obtain a letter or something in print which I can show to Spanish immigration in the event of a dispute. Can anyone suggest where I could get this?

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    I think you are mixing up the 90/180 day rule and the 3 months rule for long term stays. For stays longer than 3 months in Spain, you must register with the local authority (mostly the registration office) and will recieve a certificate that you have done so for you and your spouse. Not all EU countries require this, but Spain does. Jul 13 '21 at 23:17
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    The information from the Spanish consulate in Manchester was not correct. The 90/180 day rule only applies to your spouse when traveling independently to the Schengen Area, while you (as EU-Citizen) remain outside the Schengen Area. Jul 13 '21 at 23:36
  • Surely they'll have internal guidance about this - there must be loads of people in the same boat. If so I can't see a letter from anyone changing their mind. On the off chance that there's no internal guidance I would think a letter from a Spanish immigration lawyer would be best. If it really is controversial (hadn't realised it would be - AFAIC it's obvious that your wife's right of free movement as a family member of an EU citizen is not affected by Brexit) then it will eventually go to the ECJ, but I get that that doesn't help you right now. Did the Consulate / sol give reasons?
    – raleigh
    Jul 14 '21 at 1:31
  • This question (and the answer) seems relevant: travel.stackexchange.com/questions/134956/…
    – Arno
    Sep 7 '21 at 9:13
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We realise that we require a visa to stay in Spain for more than 3 months in one visit (long stay)

You do not require a visa, nor does your wife as long as she is with you.

However, I believe that the 90/180 day limitation does NOT apply to me and my wife when travelling in the Schengen zone together, because if the 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.

That is correct. In fact, the definition of "third-country national" in the Schengen Borders Code actually excludes family members of Union citizens who enjoy freedom of movement. If anyone points you to a provision in the Schengen Borders Code, therefore, in support of some claim about the 90/180 rule, you can point out that this doesn't apply to your wife because of Article 2(6) (see below).

However, if you stay for longer than three months in Spain (or in any Schengen country) your wife can be required to apply for a "residence card of a family member of a Union citizen." I do not know what penalties Spain imposes for failing to apply for such a card, but they should be "proportional," meaning they should not be terribly severe (for example, in France you would risk an extra application fee of less than EUR 300). In any event, the penalty cannot include expulsion.

Note that this three month period is per country, so it doesn't apply to the Schengen area as a whole. On the other hand, it's possible that a trip of a few days outside of Spain might be seen as not interrupting the period of residence. It would be safer to apply for a residence card than to try to play such games.


For reference, here's article 2(6), with emphasis added to the relevant portion:

  1. ‘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;

For further reference, here's article 2(5), again with the relevant portion emphasized:

  1. ‘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;

(b) third-country nationals and their family members, whatever their nationality, who, under agreements between the Union and its Member States, on the one hand, and those third countries, on the other hand, enjoy rights of free movement equivalent to those of Union citizens;

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  • After 3 months in Spain, the Irish citizen would also have to register their presence at the registry office. This could possibly then be done together. Sep 7 '21 at 21:42
  • @MarkJohnson doesn't it need to be done before the three months have elapsed? That's how it works in France, at least.
    – phoog
    Sep 7 '21 at 23:23
  • DIRECTIVE 2004/38/EC Article 8 (2): The deadline for registration may not be less than three months from the date of arrival., would imply 3 months or more depending on the national law. In countries where a general registration is required when moving into a flat (in Germany 2 weeks after), a further registration may not be required (in Germany that is the case). No idea how this is done in Spain. Sep 8 '21 at 0:29
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    @MarkJohnson if the deadline is three months from arrival then registration after three months has passed means registration after the deadline has passed. National law may specify a later deadline, but if it does not then the registration must take place before three months in order not to be late.
    – phoog
    Sep 8 '21 at 2:22
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    @MarkJohnson which confirms what I said, does it not? Anyway, that linked information ought to be in an answer. Do you want to add one?
    – phoog
    Sep 8 '21 at 17:35

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