EU freedom of movement when schengen visa expires

[RachPach]

My question relates to the application of the EU freedom of movement act and the Schengen visa requirements for an Australian citizen whose spouse (me) holds an EU passport.

I am a dual Australian and UK citizen with a current UK passport. I am travelling around Europe for 7 months with my Australian husband and 2 children aged 8 and 10 years who only hold Australian passports. We reside in Australia and DO NOT hold residence cards for any European country.

My family entered the Netherlands in Late April using the Schengen visa entitlement which permits travel in the Schengen area for 90 out of 180 days. We would like to travel for longer than 90 days in the Schengen area. We are travelling by campervan across land borders and do not intend to stay in any country for more than 1 month. Most countries we would like to travel to are part of the Schengen area.

Once my family have used up their 90 days on the Schengen visa can my husband and children legally travel with me under the EU freedom of movement act without a visa?

We will leave Europe by plane later in the year and I am concerned my family will be classified as having overstayed their Schengen visa.

The German and Austrian consulates both advised that due to bilateral agreements with Australia we would be permitted to enter after the Schengen visa expired for a maximum of 90 days, but we would have to enter from a non-Schengen country. This would mean having to fly in which is not viable given we are travelling in a campervan.

Thanks in advance for any assistance.

[gokulatti]

Short answer is Yes.
Long answer is- technically you and your family members can stay in any EU member state other than UK If each stay in any member state does not exceed 3 months. The initial 3 months is unconditional. All must have a travel document and Marriage certificate + birth certificate of children (all legalized). EU free movement supersedes conventional schengen rules of 90 in 180 days. If you want more insights and the law behind it you might want to read this thread europe-immigration-forum/american-wife- ... 31500.html

[RachPach]

Thanks for your response. I have Just a few questions.When you say legalised documents what do you mean? I have full birth and marriage certificates from Australia. Is there something I need to do for them to be recognised here?

Also, how do we prove we have not overstayed the 90 day limit when there is no border control? I suspect there will be questions when we leave.
Thanks.

[gokulatti]

Thanks for your response. I have Just a few questions.When you say legalised documents what do you mean? I have full birth and marriage certificates from Australia. Is there something I need to do for them to be recognised here? you need to get them apostilled from the respective country/government.

Also, how do we prove we have not overstayed the 90 day limit when there is no border control? I suspect there will be questions when we leave. There is no 90 day limit under EU law, there is a 3 month unconditionally stay after which the EU national (you) needs to exercise treaty rights in that specific member state. If you want proof then, you can consider reporting your presence in that country (in fact you are expected to do so) and the next one and so on, where they will give you a registration certificate. Tbh, it is in essence a loop hole of the system that people sometimes use but it not illegal. Yes there might be questions not when you leave but if they travel back to schengen later, at that stage you can again show that you family falls under directive 2004/38 which the documents previously listed.

Thanks.

[RachPach]

Thanks again. Will need to get to an Australian embassy to get the documents apostilled..

[RachPach]

Hi again,
So we have a small problem. I have the original marriage certificate document but I cannot get the original birth certificates for the kids as we are overseas. I only have copies of their birth certificates so cannot get them apostilled. Does anyone have any thoughts on whether just having the apostilled marriage certificate will be enough when we leave Europe? Obviously this isn't ideal but looking for experience of others with kids.

Thanks, Rachel

[mgb]

Same surname in the passport and the passports of the kids plus copies of the birth certificates should be enough.
I guess UK passports for the kids was not a option.

[RachPach]

Thanks mgb. No, unfortunately couldn't get uk passports for the kids..

[RachPach]

An update from our experience leaving from Europe. We left through Frankfurt, Germany. I had my EU passport and handed all passports together to the immigration officer. We were not asked any questions relating to the Schengen visa or time spent in Europe and passed through immigration quickly. Thanks for your assistance with this enquiry.