Can my wife legally stay in Spain after visa expires?

[addy777]

Hello to all,

Been seaching the internet to understand the residency law concerning the right for my wife to stay here in Spain without a visa while applying for residency.

I'am from the UK and my wife is a Moroccan national, with this i understand her to be an eu-family member. With the help of a lawyer i've done the residency paperwork and been to Almeria twice to become legally resident, so far all i had in reply ''we'll be in touch''

I was told, all my wife needed was a visa valid for three months to give time for the residency to be sorted out. But now we have a problem it seems, with the process taking over 2 months and still waiting to get my residency my partners visa expires in a few weeks. So that's where we are today, my paperwork is filed at Almeria. My partners ex-19 form and all the documents that go with it sit at home.

My Question is, can my wife legally stay with me in Spain after her visa expires with been a non eu-family member?

Any help or advice would be greatly apprieciated.

[John]

addy777, how are you exercising Treaty Rights in Spain? Employed? Self-employed? As a student? or Self-sufficient?

However, if you are truly exercising Treaty Rights in Spain, then your wife also has a Treaty Right to be there in Spain with you. Not only that, whilst she can apply for a Residence Card, and such a card will confirm that she has Treaty Rights, it is not compulsory for her to make such as application. The Residence Card is merely confirmatory of rights already held; it does not, for a family member such as your wife, give any additional rights.

Having said that, having confirmation that there are Treaty Rights will be useful, so that application should be made.

[addy777]

Thanks for your reply John, to be honest, may sound dumb, but first time i've heard of treaty rights.. i guess in answer it would be exercising self sufficient for now.

To explain our position further, we have moved in with my parents who own a farm in the almeria region and have already residency. Using the same lawyer i have submitted all required forms and documents, but since the new government came in everything seems to be taking longer for residency cards to be given.
Through out the process so far treaty rights hasn't been mentioned in my case for residency.
So do i take it from your reply, my wife can stay in Spain legally with me without a visa until residency is sorted? But if she leaves, then another visa is needed?
Thanks again for advice, still digesting the treaties :/

[John]

i guess in answer it would be exercising self sufficient for now.

I am not going to delve into this is detail here, this board has a search facility, but in order to exercise Treaty Rights as a self-sufficient person you not only need sufficient funds but also need to have Comprehensive Sickness Insurance ..... says the relevant EU Directive.

So whilst for three months of living in Spain it does not matter, after that you need be exercising Treaty Rights in some way in order to stay the right to stay. And if you do not have that right then neither does your wife.

we have moved in with my parents who own a farm in the almeria region and have already residency.

It sounds like your parents are self-employed and thus exercising Treaty Rights in that way. In order to avoid the need to have the comprehensive sickness insurance, don't your parents need you to do some work on the farm, even on a part-time basis?

But if she leaves, then another visa is needed?

That is right, without a Residence Card she cannot prove a right to re-enter "Schengenland", including Spain. A Schengen visa will suffice to allow her to re-enter.

[EUsmileWEallsmile]

Could this be moved the the European Section?

Spain's transposition of the directive wrt article 7.1 is considerably more favorable than other member states (unless it's changed since 2008).

http://ec.europa.eu/justice/doc_centre/ ... nce_en.pdf

[EUsmileWEallsmile]

The Spanish government has now transposed article 7 (in effect since 16th April 2012).

EU citizens are now required to be a worker, self-employed person, student or self-sufficient person in order to live legally in Spain.

Artículo 7. Residencia superior a tres meses de ciudadanos de un Estado miembro de la Unión Europea o de otro Estado parte en el Acuerdo sobre el Espacio Económico Europeo.

1. Todo ciudadano de un Estado miembro de la Unión Europea o de otro Estado parte en el Acuerdo sobre el Espacio Económico Europeo tiene derecho de residencia en el territorio del Estado Español por un período superior a tres meses si:

a) Es un trabajador por cuenta ajena o por cuenta propia en España, o

b) Dispone, para sí y los miembros de su familia, de recursos suficientes para no convertirse en una carga para la asistencia social en España durante su período de residencia, así como de un seguro de enfermedad que cubra todos los riesgos en España, o

c) Está matriculado en un centro público o privado, reconocido o financiado por la administración educativa competente con arreglo a la legislación aplicable, con la finalidad principal de cursar estudios, inclusive de formación profesional; y cuenta con un seguro de enfermedad que cubre todos los riesgos en España y garantiza a la autoridad nacional competente, mediante una declaración o por cualquier otro medio equivalente de su elección, que posee recursos suficientes para sí y los miembros de su familia para no convertirse en una carga para la asistencia social del Estado español durante su período de residencia, o

d) Es un miembro de la familia que acompaña a un ciudadano de la Unión Europea o de otro Estado parte en el Acuerdo sobre el Espacio Económico Europeo, o va a reunirse con él, y que cumple las condiciones contempladas en las letras a), b) o c).

[EUsmileWEallsmile]

As advised above, this is all pretty new. Health care is what has appeared to have driven the changes.

some FCO advice.

http://ukinspain.fco.gov.uk/en/help-for ... re-updates

[John]

That big block, two posts ago translates to :-

1. Every citizen of a Member State of the European Union or another State party to the Agreement on the European Economic Area have the right of residence in Spanish territory for a period exceeding three months if:

a) is a worker or self-employed in Spain, or
b) has, for himself and his family members, sufficient resources to avoid becoming a burden on social assistance in Spain during their period of residence as well as sickness insurance covering all risks in Spain or
c) Is enrolled in a public or private, accredited or financed by the education authorities under applicable law, with the main purpose to study, including vocational training, and has health insurance that covers all risks in Spain and warrant to the competent national authority, by a declaration or any other equivalent means of their choice, which has sufficient resources for themselves and family members to avoid becoming a burden on social assistance during the Spanish State their period of residence, or
d) A family member accompanying a European Union citizen or of another State party to the Agreement on the European Economic Area, or going to meet him, and that meets the conditions specified in subparagraphs a), b) or c).

-: says Google Translate, and whilst automatic translation is not always good, that translation looks quite reasonable.

So addy777, as long as you are within a, b or c, your wife will be within d.

Looks like the new Spanish Government is getting their act together.

[EUsmileWEallsmile]

That big block

Looks like the new Spanish Government is getting their act together.

Sorry! (I'd did say that it was the case in 2008.) I didn't know changes were in the offing, but decided to check today and eventually found that they had. The problem with legislation is keeping up to date.

Having read the changes, it appears to have come about due to healthcare and a desire to protect the public purse.

[EUsmileWEallsmile]

In general, if one searches for the transposition of the Spanish law, one gets the original law, but

The consolidated version of the Spanish transposition can be found here:

http://www.boe.es/aeboe/consultas/bases ... -2007-4184

The part relevant to the OP is Artículo 7, the footnote says that it been modified by royal decree 16/2012 of 20 April.

se modifica por la disposición final 5 del Real Decreto-ley 16/2012, de 20 de abril. Ref. BOE-A-2012-5403.

http://www.boe.es/boe/dias/2012/04/24/p ... 2-5403.pdf

[addy777]

Thanks for making things a lot clearer and helping make sense of all this red tape we're having to jump through to be together, i appreciate your time and effort in replies.. big Cheers your way.

Also makes me wonder how good the solicitor is dealing will my residency. Still not heard whether i have my residency either way so far :/

Another thing i'm starting to question.. My solicitor is telling me best first to get my residency(in process now) then my wife put in her form EX19 with documents at the oficina de extranjeros. But it seems all this should have been done within 3 months of her arriving in Spain, next week this will be over.
So looks like next days i'm booking my wife a flight back to Morocco before her 90 days is over without her paperwork filed at Almeria. Pfff this process really didn't go to plan, i guess it's just the wait and see game now

Many Regards
Addy

[EUsmileWEallsmile]

So looks like next days i'm booking my wife a flight back to Morocco before her 90 days is over without her paperwork filed at Almeria.

I don't have a lot of time just now, but don't do that!

If you are worried about exceeding the 90 days. You could both spend a little time in France or Portugal and reset the clock. Freedom of movement applies to all EU states. You can have up to three months in each without registering!

[EUsmileWEallsmile]

Basically, your wife's application should have gone in at the same time as yours, but it's not the end of the world.

She could at most be subject to a small fine, but if she leaves and re-enters Spain she her three months start again.

[John]

addy777, your wife has a 3-month Schengen visa?

If the answer to that is yes, EUsmileWEallsmile, why would leaving one Schengen country and entering another Schengen country, before returning to the original Schengen country, help in this situation?

Surely she would need to leave "Schengenland", and then return to "Schengenland" in order to stop the clock.

[EUsmileWEallsmile]

addy777, your wife has a 3-month Schengen visa?

If the answer to that is yes, EUsmileWEallsmile, why would leaving one Schengen country and entering another Schengen country, before returning to the original Schengen country, help in this situation?

Surely she would need to leave "Schengenland", and then return to "Schengenland" in order to stop the clock.

The directive 2004/38/EC applies in each member state individually, whether in Schengen or not. In general, a non-EU family member who is a visa national enters with a Schengen visa and applies for a residence card within three months. Failure to apply for the residence card on time could lead to a fine, but will not affect the actual application (ie it can't be denied for failure to apply on time).

If the OP and his wife go to any other member state and re-enter Spain, one could argue that the three-month window starts afresh. No fine can now be imposed.

The fact that her Schengen visa will have expired might cause her difficulty if she left the zone and tried to re-enter - especially be air. Of course if she gets to a border she can enter under article 5.4 (aka MRAX) without a valid visa.

I hope this makes sense. The short answer is that no need to decamp back to her home country, but if that's what she prefers to do, she can of course.

[EUsmileWEallsmile]

... i guess in answer it would be exercising self sufficient for now...

For the OP, this would appear to be what you need to pursue. For this you will need to have sickness insurance for you and your wife.

[EUsmileWEallsmile]

To set the context, a fine for failing to comply with the Spanish regulations would be of the order of Eu300.

RD 240/2007 only foresees sanctions for the failure to request the
registration certificate and residence card. The fine imposed is 300EUR.

Page 132 of this (as of 2008)

http://ec.europa.eu/justice/doc_centre/ ... nce_en.pdf

[addy777]

My wife has a visa valid till the 20th July, so was a six month Shengen.
The 90 day stay will be up end of this week, because not much difference in a flight or drive to france or going back to see her family in Maroc we booked the flight to Casablanca today.

Still not sure whether to use the remaining month on visa to re-enter after a week to Spain in the hope my residency request is accepted and try to file her documents before the 20th July whilst visa is valid.

Or, because my residency could be rejected due to the new rules brought in recently. My wife applies for new visa when i know i'm resident here, which could be pfffff who knows when....

We are under the impression i need my residency first before my wife can get the right to re-unite/ family union. So that's the reason for waiting this long to submit her ex19 form to the oficina E.

Thanks again for words of wisdom, much food for thought going on here.. For sure i'm going to be looking hard at treaty rights to see which is best to help my situation.. humm, teach me for been close to nomad for over 15 years :/

[EUsmileWEallsmile]

My wife has a visa valid till the 20th July, so was a six month Shengen.

Great, so she can leave and re-enter before it expires and apply for RC when she returns. Enjoy trip to Casablanca.

She is the spouse of an EU citizen, do not get hung up on the 90 days business for tourists.

[EUsmileWEallsmile]

Or, because my residency could be rejected due to the new rules brought in recently.

Your residency will not be rejected if you are self-sufficient. You need to work on what is required in terms of health insurance. Your wife's residence follows automatically as long as you are legally resident.

Prior to three months you are by definition legally resident in any member state.

[EUsmileWEallsmile]

We are under the impression i need my residency first before my wife can get the right to re-unite/ family union. So that's the reason for waiting this long to submit her ex19 form to the oficina E.

This is misplaced advice. It is true that her application depends on yours, but that does not mean that it should not be made at the same time. There may be some confusion following from the very liberal rules allowed before April to the more restrictive (though still not unreasonable) rules allowed under the directive.

[levi13]

Hello to all,

Been seaching the internet to understand the residency law concerning the right for my wife to stay here in Spain without a visa while applying for residency.

I'am from the UK and my wife is a Moroccan national, with this i understand her to be an eu-family member. With the help of a lawyer i've done the residency paperwork and been to Almeria twice to become legally resident, so far all i had in reply ''we'll be in touch''

I was told, all my wife needed was a visa valid for three months to give time for the residency to be sorted out. But now we have a problem it seems, with the process taking over 2 months and still waiting to get my residency my partners visa expires in a few weeks. So that's where we are today, my paperwork is filed at Almeria. My partners ex-19 form and all the documents that go with it sit at home.

My Question is, can my wife legally stay with me in Spain after her visa expires with been a non eu-family member?

Any help or advice would be greatly apprieciated.

Hello.....Your situation is very much the same as what i have just been through.I am an British citizen living in Spain for the past 6 years and i am married to a Ukrianian National.
We also have just applied for residencia for my wife in Spain.She is from the Ukraine and arrived here with only a 45 day Schengen visa from Poland.We applied the 1st of March 2012 and 3 weeks ago we were told by our lawyer that we had been accepted and all is ok.We have to go to Alicante to give her fingerprints on the 19th of July also.
With regards to your question, a colour stamped copy of the EX-19 form was given to us by our lawyer which we were told was to be used as a legal document to show we had applied for the residencia.My wife carries this everywhere with her just incase she needs to provide any I.D.etc.Your lawyer can also check daily online the status of your application.Your wife cannot legally work until she has her residencia card,the EX-19 can only be used to show that she her situation is Spain.
Good luck and i hope this helps a little

[John]

that is very helpful but as regards :-

Your wife cannot legally work until she has her residencia card

-: under the terms of the EU Directive, she can work, but proving it is another matter. So in practice, I agree, she will need to wait until she gets her residence card.

But if she did work she would would not be breaking the law.

[addy777]

Thanks for posting info on your situation levi13, your case does sound similar to mine for sure. But sounds like you already had residency in Spain before your wife applied for hers? i guess this made a big difference in the decision to accept her application.
I think i did find the website where you can obtain the status of a residency application online but i'm sure i read it's not available for EU nationals, they need to phone or email the office where they applied. With been in spanish and not translatable due to security reasons i didn't understand all i must admit.
https://sede.mpt.gob.es/frontend/portad ... /infoext2/
Good to hear your wife had a positive outcome, this helps to know they haven't tightened up all together at least..
Best of luck for future your way too levi13

[levi13]

Thanks for posting info on your situation levi13, your case does sound similar to mine for sure. But sounds like you already had residency in Spain before your wife applied for hers? i guess this made a big difference in the decision to accept her application.
I think i did find the website where you can obtain the status of a residency application online but i'm sure i read it's not available for EU nationals, they need to phone or email the office where they applied. With been in spanish and not translatable due to security reasons i didn't understand all i must admit.
https://sede.mpt.gob.es/frontend/portad ... /infoext2/
Good to hear your wife had a positive outcome, this helps to know they haven't tightened up all together at least..
Best of luck for future your way too levi13

I have had my Spanish Residencia for many years now.Im not sure what advise you have been given but it is very easy to get and can be obtained in less than 1 day depending on where you live.As an EU citizen you can get your residencia without any problems at all from your local town hall,you do not need a lawyer to do this,it helps if you can speak spanish though.
Your lawyer should have explained this all to you.You will also need your N.I.E number,your padron and your medical card,this can all be obtained in 1 day,you will not get your medical card until you start paying into the spanish social system.There hve been alot of changes here since April but the basics remain the same just a few small changes.