Country #

Austria

Reference #

Enquiry #

Can you confirm that a British National who has an EU spouse and a residency permit in Austria is able to travel to other Schengen States outside Austria for more than 90 days in any 180-day period (ie exceeding their Schengen Visa free allowance). This is provided that they always travel with their EU spouse and do not spend more than 90 days in any single Schengen member state (e.g. 2 months in France, 2 months in Spain and 2 months in Portugal). I have seen references to this in section 2.1.2 (Page 20) of the latest version of the Schengen Border Guard Guide – C(2022) 759, but wonder if it has been tested in any case law yet: https://home-affairs.ec.europa.eu/system/files/2022-11/Practical%20handbook%20for%20border%20guards_en.pdf

Answer #

Please find below the reply to your enquiry. Please note that the advice given by Your Europe Advice is an independent advice and cannot be considered to be the opinion of the European Commission, of any other EU institution or its staff nor will this advice be binding upon the European Commission, any other EU or national institution.

Dear Citizen,

Many thanks for your enquiry to Your Europe Advice which we may answer as follows:

It is correct that beneficiaries of the European free movement rules, who are EU citizens as well as their non-EU family members, are not restricted to the 90-days-within-180-days rule when travelling to Schengen member states other than the member state in which they usually reside.

This is anchored in Article 2 (5) of Regulation (EU) 399/2016, according to which persons enjoying free movement are defined as EU citizens and their family members, even if the latter are non-EU citizens, who exercise their right of free movement according to Directive 2004/38/EC. According to Article 6 of the said Regulation, the 90-days-within-180-days rule only applies to third country citizens, who are (as defined in Article 2 (5)) persons not enjoying free movement according to Directive 2004/38/EC.

However, it is correct that those UK family members – like any other non-EU family member – must carry a valid passport, have a valid residence card for non-EU family members of EU citizens or a national residence permit and travel together with their EU family member.

If the EU citizen wishes to stay in the other EU member state together with their UK family member for more than three months, they need to fulfil the conditions anchored in Article 7 of Directive 2004/38/EC (i.e. being employed or self-employed or proving that they have sufficient financial means in order to not become a burden on the host member state s social security system as well as sufficient health insurance cover).

For further information on entry conditions to another EU member state we recommend that you contact the competent authorities of the member state concerned, which is usually the border police or foreigners police and/or the Ministry for Internal Affairs of the member state concerned.

Should you have any further questions in relation to your rights in the EU, please do not hesitate to contact Your Europe Advice again.