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Legal situation of a non-EU resident overstaying the Schengen zone after marrying an EU national

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jgoddard
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Mexico

Legal situation of a non-EU resident overstaying the Schengen zone after marrying an EU national

Post by jgoddard » Thu Sep 19, 2019 9:52 am

Hello everyone!

I'm a non-EU citizen (Mexican) getting married with my EU (Portuguese) girlfriend in a couple of weeks (in Denmark). We are getting married in my day 89 of my Schengen stay. After that, I'll be coming back with her to Berlin (which is where we will live) and I'm applying for the residency permit, but the appointments are being really hard to get (which won't stop us from trying until we get it).

I have a couple of questions regarding this and it would be wonderful if you can share any insights.

1) Will I be an illegal immigrant even if we are legally married for overstaying the 90/180 period? Or do the freedom of movement/3 months apply after the 1st day we get married regardless of my previous 90/180 period? (source of the 3 months: https://europa.eu/youreurope/citizens/r ... dex_en.htm)

2) We need to make a trip to the US for work purposes in October. Is it possible that I have problems either when going out or when getting back into a Schengen country because of this overstay, even if I'm leaving and entering with my EU spouse?

Thank you for any insights in advance!

Alex

ibwe
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Tanzania

Re: Legal situation of a non-EU resident overstaying the Schengen zone after marrying an EU national

Post by ibwe » Thu Sep 19, 2019 1:01 pm

jgoddard wrote:
Thu Sep 19, 2019 9:52 am
Hello everyone!

I'm a non-EU citizen (Mexican) getting married with my EU (Portuguese) girlfriend in a couple of weeks (in Denmark). We are getting married in my day 89 of my Schengen stay. After that, I'll be coming back with her to Berlin (which is where we will live) and I'm applying for the residency permit, but the appointments are being really hard to get (which won't stop us from trying until we get it).

I have a couple of questions regarding this and it would be wonderful if you can share any insights.

1) Will I be an illegal immigrant even if we are legally married for overstaying the 90/180 period? Or do the freedom of movement/3 months apply after the 1st day we get married regardless of my previous 90/180 period? (source of the 3 months: https://europa.eu/youreurope/citizens/r ... dex_en.htm)

2) We need to make a trip to the US for work purposes in October. Is it possible that I have problems either when going out or when getting back into a Schengen country because of this overstay, even if I'm leaving and entering with my EU spouse?

Thank you for any insights in advance!

Alex
Hi!
This is just my opinion and should be taken with a grain of salt. You should check with an immigration lawyer or relevant immigration authorities in Denmark or Germany for credible information. I will only focus my answer to your "two" questions.
1) Yes! If you have overstayed.
"A non-EU national who stays in the Schengen area beyond 90 days (without a residence permit or
long-stay visa) is illegally present, which can result in a re-entry ban to the Schengen area. Working
in the Schengen area without a work permit is also illegal (even if less than 90 days) and can
likewise result in a re-entry ban to the Schengen area. Depending on the Member State
administrative penalties may also apply"
This is from question 14 of this document. So the best way is not to overstay.
However, if you can be able to get your residency permit application received by the 90th day (hopeful it is a working day), they you can surely relax as your application is being processed. I am also assuming you already know what documents to submit in Germany for your residency as a family member of Germany citizen.
If you are married to an EEA/EU citizen you have free movement rights in EU (but not the original country of EEA/EU citizen). All you need to do is to register your marriage and apply for residency with proper documentation that meets a set of requirements.

2)Regardless, if you have overstayed your stay and they happen to check, you might be denied entry. This is assuming that you do not have a residency certificate on hand at the time of entering Germany from outside Schengen area. For what its worth, Germany border authorities are very thorough.

jgoddard
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Re: Legal situation of a non-EU resident overstaying the Schengen zone after marrying an EU national

Post by jgoddard » Fri Sep 20, 2019 2:25 pm

Thank you so much for your reply ibwe!

I was able to get an appointment to get a Residency Permit in Berlin, we're already setup with all the papers (we'll even get our Danish marriage certificate apostilled in case it's necessary).

The date I have for the Residency Permit appointment is 2 weeks after we get married, which is 12 days after my 90/180 period. Do you think this could be problematic to get the residency permit?

And thanks for the tip! We're definitely not going out or entering back from Germany, we would do it from either Portugal or Spain so we can speak the local's authorities languages in any case.

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ALKB
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Re: Legal situation of a non-EU resident overstaying the Schengen zone after marrying an EU national

Post by ALKB » Fri Sep 20, 2019 4:06 pm

jgoddard wrote:
Fri Sep 20, 2019 2:25 pm

The date I have for the Residency Permit appointment is 2 weeks after we get married, which is 12 days after my 90/180 period. Do you think this could be problematic to get the residency permit?

Is your EU spouse exercising treaty rights?
I am not a regulated immigration advisor. I am offering an opinion and not advice.

jgoddard
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Joined: Thu Sep 19, 2019 9:21 am
Mexico

Re: Legal situation of a non-EU resident overstaying the Schengen zone after marrying an EU national

Post by jgoddard » Sat Sep 21, 2019 8:59 am

ALKB wrote:
Fri Sep 20, 2019 4:06 pm
jgoddard wrote:
Fri Sep 20, 2019 2:25 pm

The date I have for the Residency Permit appointment is 2 weeks after we get married, which is 12 days after my 90/180 period. Do you think this could be problematic to get the residency permit?

Is your EU spouse exercising treaty rights?
No, she is a Portuguese national with a residency in Berlin (as a freelancer).

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ALKB
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Re: Legal situation of a non-EU resident overstaying the Schengen zone after marrying an EU national

Post by ALKB » Sat Sep 21, 2019 11:26 am

jgoddard wrote:
Sat Sep 21, 2019 8:59 am
ALKB wrote:
Fri Sep 20, 2019 4:06 pm
jgoddard wrote:
Fri Sep 20, 2019 2:25 pm

The date I have for the Residency Permit appointment is 2 weeks after we get married, which is 12 days after my 90/180 period. Do you think this could be problematic to get the residency permit?

Is your EU spouse exercising treaty rights?
No, she is a Portuguese national with a residency in Berlin (as a freelancer).
So she is exercising treaty rights as self employed?

Has she registered her business with the relevant authorities?

Does she have health insurance?
I am not a regulated immigration advisor. I am offering an opinion and not advice.

jgoddard
Newly Registered
Posts: 5
Joined: Thu Sep 19, 2019 9:21 am
Mexico

Re: Legal situation of a non-EU resident overstaying the Schengen zone after marrying an EU national

Post by jgoddard » Sat Sep 21, 2019 6:16 pm

ALKB wrote:
Sat Sep 21, 2019 11:26 am
jgoddard wrote:
Sat Sep 21, 2019 8:59 am
ALKB wrote:
Fri Sep 20, 2019 4:06 pm
jgoddard wrote:
Fri Sep 20, 2019 2:25 pm

The date I have for the Residency Permit appointment is 2 weeks after we get married, which is 12 days after my 90/180 period. Do you think this could be problematic to get the residency permit?

Is your EU spouse exercising treaty rights?
No, she is a Portuguese national with a residency in Berlin (as a freelancer).
So she is exercising treaty rights as self employed?

Has she registered her business with the relevant authorities?

Does she have health insurance?

Thanks for your reply ALKB! Oh, sorry, now I see what you mean with treaty rights, yes, she is exercising those as self employed, she has a business registered in Germany, pays taxes here, she also has German health insurance and will add me to her to it as her dependent as soon as we have the marriage certificate.

User avatar
ALKB
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Posts: 474
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Location: Berlin
Germany

Re: Legal situation of a non-EU resident overstaying the Schengen zone after marrying an EU national

Post by ALKB » Sun Sep 22, 2019 1:02 pm

jgoddard wrote:
Sat Sep 21, 2019 6:16 pm
ALKB wrote:
Sat Sep 21, 2019 11:26 am
jgoddard wrote:
Sat Sep 21, 2019 8:59 am
ALKB wrote:
Fri Sep 20, 2019 4:06 pm


Is your EU spouse exercising treaty rights?
No, she is a Portuguese national with a residency in Berlin (as a freelancer).
So she is exercising treaty rights as self employed?

Has she registered her business with the relevant authorities?

Does she have health insurance?

Thanks for your reply ALKB! Oh, sorry, now I see what you mean with treaty rights, yes, she is exercising those as self employed, she has a business registered in Germany, pays taxes here, she also has German health insurance and will add me to her to it as her dependent as soon as we have the marriage certificate.
Yes exercising EU treaty rights = being employed, self-employed, a full time student or self-sufficient.

As long as your EU spouse is exercising treaty rights, you have the right to stay with her, work, etc. Your rights to live and work in an EU country other than Portugal hinge on her a) living in that country and b) exercising treaty rights. If she leaves or stops exercising treaty rights, your rights cease. In theory, a residence card is just documentary proof of an existing right and are not legally obliged to get one. In practice, you really need that card, especially if you want to find work.

Looks like you are all set - unless her self-employment is only marginal and doesn't pay living expenses.
I am not a regulated immigration advisor. I am offering an opinion and not advice.

jgoddard
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Posts: 5
Joined: Thu Sep 19, 2019 9:21 am
Mexico

Re: Legal situation of a non-EU resident overstaying the Schengen zone after marrying an EU national

Post by jgoddard » Mon Sep 23, 2019 9:51 am

ALKB wrote:
Sun Sep 22, 2019 1:02 pm
jgoddard wrote:
Sat Sep 21, 2019 6:16 pm
ALKB wrote:
Sat Sep 21, 2019 11:26 am
jgoddard wrote:
Sat Sep 21, 2019 8:59 am


No, she is a Portuguese national with a residency in Berlin (as a freelancer).
So she is exercising treaty rights as self employed?

Has she registered her business with the relevant authorities?

Does she have health insurance?

Thanks for your reply ALKB! Oh, sorry, now I see what you mean with treaty rights, yes, she is exercising those as self employed, she has a business registered in Germany, pays taxes here, she also has German health insurance and will add me to her to it as her dependent as soon as we have the marriage certificate.
Yes exercising EU treaty rights = being employed, self-employed, a full time student or self-sufficient.

As long as your EU spouse is exercising treaty rights, you have the right to stay with her, work, etc. Your rights to live and work in an EU country other than Portugal hinge on her a) living in that country and b) exercising treaty rights. If she leaves or stops exercising treaty rights, your rights cease. In theory, a residence card is just documentary proof of an existing right and are not legally obliged to get one. In practice, you really need that card, especially if you want to find work.

Looks like you are all set - unless her self-employment is only marginal and doesn't pay living expenses.
Thank you very much for your help ALKB! This has been really enlightening.

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