Can I leave the Schengen Area (and come back) while my non-eea spouse resident card application is being processed?

Question

My wife and I recently moved to Germany. She's a Swedish citizen, and I'm American. It'll be December before I can actually apply for my residence card, because my appointment to register our address is so far out - the local police station was all booked out and we didn't get an apartment right away.

I imagine that I won't be getting my residence card until well after Christmas, by which time my 90/180 days will be passed. What if I want to leave to, say, London for the holidays? Will I be allowed back in? I hit day 90 around the 21st of December. I could maybe leave on day 89 and come back on day 90 (with my wife and our marriage cert), or use this Polish solution: US Citizen in Poland more than 90 days in a 180 day period, since I can't be expelled from Germany for overstaying my visa while my application is processing.

Both of those seem a bit risky though. Am I reading too far into it, or is this a legitimate concern? Will I get some sort of documentation saying I have a residence card application processing?

Answer 1

Under Directive 2004/38/EC, the residence card is so called, rather than being called a "residence permit," because it serves merely as evidence of your right to reside in Germany as the spouse of an EU citizen. The right exists independently of the document, solely because you have moved with your wife to Germany. Because you are staying in Germany as a family member of a union citizen, you are not subject to the limitation of 90 days in a 180-day period, regardless of the fact that you do not yet have your residence card.

You should therefore be able to enter the Schengen area with evidence of your marriage and that your wife is an EU citizen resident in Germany. To that end, you can travel with a certified copy of your marriage certificate, a certified copy of your wife's passport or national identity card, and a certified copy of some document showing that she resides in Germany.

You may be asked to prove that you are either traveling with her or joining her wherever she may be in the Schengen zone. The first will be easy to prove if it is the case, of course; for the second, you may want to have her on standby with a mobile phone at the time of your arrival and departure.

In practice, since US citizens enjoy visa-free entry into the Schengen zone, you will only need this evidence if someone tries to fine you for overstaying in the Schengen zone, to show that you are not subject to such a fine, or if someone tries to deny entry, to show that you are not subject to a denial of entry on those grounds. More likely, you'll just be allowed in.

Strictly speaking, as a "person enjoying freedom of movement" under the directive, you're allowed to use the "EU passports" desk when you arrive in a Schengen country. If you have all those certified copies I mentioned, you might give it a try. Otherwise, I would probably just use the "all passports" desk and only bring up the freedom-of-movement angle if it seems appropriate based on the questions you're asked by the officer.

To address the scenario in your question, if you apply for entry along with your wife, and in possession of a copy of your marriage certificate, there is no way they can deny entry except on grounds of public safety, public health, or public policy, regardless of how many days you've spent in any EU or Schengen country.

Answer 2

You might be mixing several different registrations here.

People living in Germany are required to register their place of residence with the municipal authorities. People living in several places must designate one as the primary place of residence. There are deadlines for doing so, but some cities (notably Berlin) have failed to handle their end of the process in a timely manner. The authorities are aware of this problem; I don't think anybody was ever penalized for simply missing the deadline as long as there was a good faith effort to start the process in time (i.e. having an appointment).

Then there is the card to show the immigration status, as mentioned by phoog. I guess you can't get that until your wife has registered as a resident. Depending on where you live, it may be possible expedite that by getting into the waiting line instead of making an appointment, if she has the time. That depends on how the city/county is organized. They can handle urgent cases, but they don't like to ...