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Alan Gow Checked Out the hidden secrets of managing Schengen time restraints
8 March 2018
If you are contemplating an extended holiday (more than three months) around Europe then you may want to keep reading.

If either you or your spouse/partner hold a European passport then you definitely need to read this because if you rely on the usual information sources, then you might just miss out on the holiday of a lifetime.

Who am I and how do I know this stuff?

I am from New Zealand and I hold a dual citizenship, (NZ and Republic of Ireland, which is part of the EU).  I am married to a New Zealander who holds only her NZ passport.  We are travelling around Europe in a motorhome for a few years and to ensure we could do this hassle free, I engaged in some extensive research before leaving home.  The potentially most limiting factor was the time allowed to be within the Schengen Zone, which I will talk more about later in this post.  There was so much misinformation and lack of clarity around my situation, that I felt compelled to put together this document to help others to find the answers easily.

I went on a real emotional rollercoaster ride as I would read somewhere that there would be no restrictions on us – yay!  Then an embassy official would say that my wife would be subject to the Schengen restrictions but I wouldn’t – oh crap!  Then I would get other information to contradict this, and so on.  This continued for some months but over this time, as I researched more, my absolute certainty that I was correct grew stronger.

At the end of it all, I found no official website or publication that categorically 100% stated that my wife was, or wasn’t going to be affected.  However, I found many documents, directives and other publications that strongly implied my wife could enjoy exactly the same ‘free right of movement’ as me.  These will be explained later in my post.

What is this Schengen thing?

The Schengen agreement had a great goal, which was to abolish internal border controls within the European Union (EU), allowing passport free movement between countries.  When originally signed in 1985, five countries joined. However, this has now been extended and 26 countries, including four non-EU countries now make up the Schengen Zone.

Tens of millions of Europeans enjoy freedom of movement within the Schengen Zone.

Which Countries are in Schengen?

EU Countries

Belgium, France, Germany, Luxembourg, the Netherlands, Italy, Portugal, Spain, Greece, Austria, Denmark, Finland, Sweden, the Czech Republic, Estonia, Hungary, Lithuania, Latvia, Malta, Poland, Slovakia and Slovenia.

Non-EU Countries

Iceland, Norway, Switzerland, and Liechtenstein.
Schengen Map showing which countries are in the Schengen Zone

Who has been left out?

Britain and the Republic of Ireland chose not to join Schengen.

Croatia, Cyprus, Bulgaria and Romania are in the EU but have not yet joined Schengen.

What Does This Mean for Short-Term Travellers

For most short-term travellers to countries in the Schengen zone, this is all good news.  Citizens from a long list of visa exempt countries, which includes New Zealand and Australia, do not require a visa to enter Schengen.  Once you clear immigration at the first port of entry, you are free to travel to any of the above countries without needing to show your passport at any borders.

Citizens who are not from visa exempt countries, will need to apply for, and obtain a Schengen visa.  I am not going into the process for this but there is a wealth of information available on the internet, including on this site.

So, what is the issue?

The problem comes if you are travelling on say a NZ or Australian passport, and want to spend more than 90 days within a 180 day period touring within the Schengen Zone borders.  Because that is forbidden.

That’s right, you can spend about three months within that whole block of 26 countries, then you will need to leave the zone for a minimum of three months before being allowed back in for another three months.  As a non-European passport holder, your passport is (or should be) physically stamped with the entry and exit dates and all data is stored in the Schengen Information System.  When exiting or entering Schengen again, the dates are checked to make sure you have not overstayed your welcome.  Significant fines and re-entry bans can be imposed on those travellers who do not comply.

I guess it made sense back in the day when there were only five countries in Schengen club.  It was common for those counties to grant tourists a three-month entry permit or visa, so when Schengen came into being, it was probably easiest to allow three months within the whole zone to make sure no visitors exceeded three months in any one country.  As more and more countries joined however, this has become increasingly restrictive and senseless (in my humble opinion) for long-term travellers.

I believe that there are moves afoot to create a 12-month ‘ tourist visa’ for Schengen which will certainly ease the problem but who knows when they will get around to that.

For the average traveller shoehorning in a European experience around their annual leave, this isn’t going to affect them.  However, for the lucky travellers like us, who have the opportunity to take an extended time out, this can really restrict where you can go, and when.

What about travelling to Non-Schengen Countries?

Each individual country has its own rules and visa requirements and you are best to research these for the countries you are travelling to.  Britain, for example allows a six months visa free stay for many visitors while most Balkan states (e.g. Croatia, Bosnia, Albania) allow a three months visa free visit.  Turkey also allows a three months stay however most travellers will need to obtain a Turkish visa on-line (New Zealand passport holders are one of the few Turkish visa exempt countries).

Planning around Schengen

Unless you or your ‘registered partner’ are European citizens, there are just a few options available to you.

Plan your travels

The most common approach, for those who don’t have an EU passport, is to plan your travels around the ‘90 days out of 180 days’ restriction.  This means that you must exit Schengen on or before the 90 days expires, and stay out for 90 days.  You can then re-enter Schengen for another 90 days.  In reality this may mean flying over to Britain for 3 months, or driving across the Schengen border to countries such as Croatia, Bulgaria, Bosnia, Albania, Montenegro, Macedonia, Romania or even Turkey, and enjoying their charms for a spell.  This isn’t necessarily a bad thing and pushes many travellers to experience countries they wouldn’t otherwise have given a second thought to.

You can go out of, and back into Schengen during that 180 days period but you need to keep careful track of where you have been and when so that you don’t exceed 90 days in any 180 days.

Keeping an eye on the seasons while doing your planning is important. We met a lovely Australian couple in Thessaloniki, Greece in December 2017, who were planning on driving up into Bulgaria and Romania for the first three months of winter because they needed to get out of Greece within the next few days.  Now, those countries may be nice during the summer but they aren’t the ideal spot for a small motorhome in a Northern Hemisphere winter.  We suggested they consider Turkey instead and they experienced a fantastic and much warmer time exploring the south of that wonderful country.

Residence Permits

Another alternative is to apply for a residence permit in one of the Schengen countries.  However, these are not handed out easily, normally require you to have a fixed address with a property lease agreement, and a valid reason for being there.  These only give the right to stay longer than 90 days in that one country and aren’t intended for the purpose of then hopping from country to country.  You could theoretically then travel within Schengen and eventually exit from the country from which you obtained a residence permit however this isn’t strictly legal and if caught you could be in serious trouble.

So, short of quickly marrying a local, or having an EU spouse, are there not many ways of being able to extend the Schengen period.

One option that can help is to take advantage of the Bilateral Agreements.

Bilateral Agreements

These Agreements are historical agreements between two countries to abolish the need for visas for non-working stays of up to three months.

New Zealand and Australia for example, established Bilateral Agreements with most European countries up to 50 years or more ago and these have never been cancelled.

Because these agreement pre-date the Schengen agreements, most Schengen countries will still honour them and allow a visitor to have up to three months in their country even if they have just spent three months in other Schengen countries. 

The catch here is that the individual countries seem to have different ways in which they allow these agreements to be utilised, for example, France will allow another three months under the Bilateral agreement only after you have spent your 90 Schengen days outside of France. Germany appears to be very flexible but some, for example, Hungary, require you to enter their country from a non-Schengen country and leave to a non-Schengen country.  Others, such as Italy are no longer honouring these agreements at all.

I strongly recommend that if you want to make use of these agreements, researching them thoroughly should be an important part of your travel preparation.

Contact the embassies concerned to advise them of your travel plans.  Here’s what to ask for in writing:

  • ask for confirmation that the Bilateral Agreement can be used for additional time in their country without reference to time spent previously in Schengen
  • ask about the process and any conditions around how to use the Agreement
  • keep records to prove that you did not exceed the 90 days in any of those countries, i.e. keep receipts.

What if My Spouse or Partner is an EU Citizen?

In this case, travel within Schengen just got a whole lot easier, especially once you know what I am about to tell you.

Firstly though, a simple defacto relationship will not be good enough here.  You must be either married or have a partnership that is ‘registered’ in an EU country, and the EU country you are entering has to treat ‘registered partnerships’ as equivalent to marriages.  Check the individual country requirements as to registered partnerships.

If you qualify, then the overriding European legislation that gives you the right to exceed the 90 days in Schengen is ‘European Directive 2004/38/EC’ which states citizens of the Union, and their family members can move and reside freely within the Member States’.

You should print out, and carry a copy of this Directive with you on your travels.  Highlight and be familiar with the sections that apply to you.

I apologise if this now gets a little detailed but it is vital that you understand your rights and why you have them, if you want to travel freely around Europe.

European Directive 2004/38/EC is a EU wide directive or instruction that the Schengen rules have to comply with, therefore all of the Schengen rules, codes, and regulations are written with this in mind.

Directive 2004-38-EC

In my experience, there is a lack of information, and in fact there is a lot of misinformation about how this applies to the spouse travelling with an EU citizen.

One of the fundamental freedoms of the EU Treaty is that citizens of member states can freely live and work in other member states, within the restrictions laid out in the Treaty.  However, there is no point in a citizen being able to move to another state if their spouse and children are not allowed to join them.  Therefore, Directive 2004/38/EC clarifies that all family members of a Union citizen have the same right of free movement as the citizen themselves.

 

What this means for you is:

  • You and your non-EU spouse can travel to any EU member state (Schengen or non-Schengen) and stay for up to three months with no restrictions. This is known as the ‘Community Right of Free Movement’ – remember this phrase as it’s important.
  • The only travel documents you need are your passports and marriage certificate
  • After three months, you can travel to any other EU member state and live in, or travel there for up to three months
  • This process can be repeated ad infinitum, i.e. forever
  • If you want, you can return to a member state you have previously visited, provided each visit does not exceed three months – again an important point.

What happens at Schengen Borders?

The guards at Schengen border crossings have to abide by Directive 2004/38/EC.  To assist them in correctly processing people passing through the border, a handbook, Schengen Handbook for Border Guards has been produced in all major European languages.

Although the border guards are supposed to know their job, there are still stories around about some of them not being aware of the rights of spouses and trying to deny entry or impose penalties for overstaying the 90 days Schengen restriction.  We ourselves have had two such border crossings so far where we may have been questioned by border guards and we had no problems whatsoever.  The first was from Greece to Turkey and back.  The second was leaving Finland for St Petersburg after eight months continuously in Schengen then returning to Finland a few days later.  On both occasions, my wife and I exited and re-entered Schengen with no questions and without even being asked for our marriage certificate.

You should also print, and carry a copy of this Handbook with you on your travels.  Highlight and be familiar with the sections that apply to you.

 

Schengen Border Checks for Spouses of EU Citizens

As a spouse accompanying an EU citizen you should expect the following at a Schengen border:

  • You should only have to show the guard your spouse’s EU passport, your passport and be able to show your marriage certificate if requested
  • The guard should give your documents only the ‘minimum check’, which is defined as just checking that they are valid documents and show no signs of tampering, forgery or falsification
  • They should not ask anything about your travel plans, where you are staying, how much money you have to support yourself, or question your Schengen entry or exit dates.
  • You can only be refused entry on genuine grounds of national security or public health.
  • Your passport is likely to  be stamped unless you yourself have an EU or EEC identity card.

Note

If you are from a non-visa exempt country, you must obtain a visa to enter Schengen in the first place.  The documents I obtained were not clear on what would happen if your visa has expired and you are exercising your rights under Directive 2004/38/EC.  You will need to do your own research in these circumstances.

Schengen Borders Code, Regulation 2016-399

EU Regulation 2016-399 defines defines how Schengen operates, however it clearly state that the rules “neither call into question, nor affect the rights of free movement enjoyed by Union citizens and their families….”.

What this means is that the Schengen Border Code cannot be interpreted in any way that affects or over-rules your rights outlined in Directive 2004/38/EC.

That sounds clear so what’s the problem?

The problem for me was that before undertaking dozens of hours of research, I didn’t know any of this and most embassy officials don’t know either.  If I had taken the first responses I received as the gospel truth, we would not be experiencing the amazing journey we are on now.  Luckily, I am a bit like a dog with bone about this sort of thing and kept digging deeper.

I’m not sure whether it is deliberate or just ignorance, but the embassy officials were the worst offenders at giving out wrong or incomplete information.  For example, the Italian consulate in Melbourne insisted my wife could only have 90 days and directed me to websites to back this up.  When I pointed out that the websites actually backed up “my” position he quoted lines from the website but added in extra words to support his claim.  When I pointed this out, I heard no more.

During this time, I was also in contact with other potential travellers in a similar predicament and they were getting different advice than me.  For example, the website ‘Your Europe Advice‘ is an official public service from independent lawyers giving advice on EU law.  After asking very specific questions, I finally got the advice that:

“Every Union citizen has the right to reside in the territory of a host Member State for a period of up to three months without any conditions or formalities other than the requirement to hold a valid identity card or passport” and

“The EU national and family members can move to another EU Member State after three months if they wish and repeat the above process and continue to do so”.

A link to the full response is provided at the end of this document.

However, Paul who is an EU citizen married to an Australia was told by the same organisation that:

“This means that your spouse would be entitled to travel to an EU country and stay up to 90 days. The 90-day limit on short stays applies to stays in the Schengen area as a whole, not to individual countries. The limit is not applied so that a visitor can spend 90 days in each country. Instead, the limit is applied so that a visitor can only spend 90 days in the Schengen area as a whole (Articles 3 and 6 of Regulation 2016/399 apply).”

Same question, totally different answer?  How can this be?

People are making massive decisions about their holidays of a lifetime and you can’t get a straight answer!  Fortunately, I was able to provide Paul with my research and documents and as a result, he and his wife travelled freely into, around, out of, and back into Schengen for many months in 2017 and 2018 with no problems.

Once I was very sure of my findings, I started asking direct and focused questions of the various embassy officials.  I was able to reference the Directives and Legislation and ask for their confirmation that I would have no problems crossing their Schengen borders.  It seemed that most just found my questions too hard, and either fobbed me off or ignored me.  I eventually had a satisfactory response from the German consulate in Berlin:

“You as an EU citizen can stay in Germany for up to 3 months without any further requirements. No matter in how many EU countries you have stayed prior to your arrival, you and your wife can stay in Germany for three months.”

The Hungarian official, after sending the question to the FREMO expert committee on Free Movement, in Brussels advised me unofficially that:

“I have received the official confirmation from Brussels that you and your wife can stay up to 3 months in each country without any administrative restrictions.”

It is always a little scary approaching a border crossing and not being sure what will happen.  Be prepared for the worse and 99% of the time you will just sail through without being questioned.

The bottom line is that as long as you clearly understand your rights, you are in a strong position.

I Have a British Passport – What about Brexit?

Great question and I wish I had an answer for that one, however at the time of writing that is up in the air.

There are two schools of thought about this.

One is that the rest of Europe is going to have to be firm on Britain and make their exit painful to discourage other countries from leaving.  Part of this could be to remove all freedom of movement for British citizens so they will also be subject to the Schengen restrictions.

The other position is that the cost to some economies of restricting British travel would be too high so travel for tourism must remain unrestricted.  Many parts of Spain for example are heavily dependant on British snow birds or retirees propping up the economy, particularly in winter.

The final solution may be somewhere in between what British citizens enjoy now and what the rest of the world have to comply with.

Who knows what the final result will be and it is a time of great uncertainty for British passport holders wanting to spend large chunks of time abroad.

My advice, get the hell over here before it all turns to custard.

There may be some grace period before restrictions kick in but who knows what is really going to happen and when.

Document Links

Here are the links to the most important documents referenced plus some others I haven’t mentioned but gives you some more background.  I have highlighted parts of the relevant sections in some documents.

Directive 2004/38/EC

Schengen Handbook

Schengen Border Code – Regulation 399-2016

New Zealand Bilateral Agreements with:

  • France
  • Germany
  • Greece
  • Italy
  • Austria
  • Netherlands
  • Hungary
  • Norway
  • Spain
  • Belgium
  • Sweden
  • Switzerland

Freedom to move and live in Europe – A guide to your rights as an EU citizen

The RIght of Union Citizens and their family members to move and reside freely within the Union

Response from Your Europe Advice questions re Schengen