bobd22

I would agree but if there's a stamp into the country and no stamp showing one then left it would raise suspicion in my mind if I were a border official? Once suspicion is raised then I don't know what would happen, they may wave you through, they may ask you to. Step aside and make enquiries they may do that and follow up with a fine etc. Point is I don't think anyone can safely say overstay and nothing will happen. It's an individual choice and acceptance of any consequences should they arise. How many people have been penalised for overstaying from Portugal, Spain or France for instance? I am not aware of any personally.

DLC

If the non-EU partner is leaving a country via the external Schengen border, the border guard himself that's going to stamp the passport and he's going to expect to see no exit stamp. If he raises the point that the non-EU partner has overstayed, she can stay she was travelling with her EU husband and they crossed internal Schengen borders. Both are allowed to do that.

If the non-EU partner is travelling alone and overstayed, that's a problem.

It may also be a problem justifying previous visits legitimately travelling with the EU partner but at first sight look like they break the 90/180 day rule, which is why I suggested the non-EU partner bring their marriage certificate and a copy of her EU partner's passport.

Barriej

Not one person has been fined or ejected from Spain for overstaying.
Cant remember if it was here or the other place most of us post to.
Someone copied a list of the ejected from Eu countries and Spain was zero.

In the same thread I told of a couple I know who have loudly and happily flouted the 90 day rule on many occasions and then went back to the UK for their NLV appointments, nothing was said at Alicante when they were stamped out (the two stamps are on the same page and very clear, as I have seen them), the consulate took no notice of the overstay when approving the NLV, they flew back a week or so to get the visa and nothing was said then either.
At their TIE appointment yesterday, the official looked at their passports and said you overstayed.. They both replied yep and smiled.
NOTHING HAPPENED...
They will collect their TIE's in three weeks...

Make of that what you will.....

I had to listen to them both today at lunch, crowing about it, saying how stupid the system was and they didn't know why so many others did things the right way when Spain has no idea of how to apply its own laws.............
They both have NLV and have said they will continue to work in insurance sales from here to the Uk even though their TIE will state NO WORK........

bobd22

Yes I thought that was the case but wasn't certain , thanks

bobd22

I don't disagree with any of what you say. The exit border guard may though see the entry stamp without following exit stamp and ask questions. At the end of the day it's up to the OP and wife to deal with that should arise. Personally if as op says it's a few days I would adjust my plans but that just me.

missile

What a surprise ....... they work in financial "services". My wife calls them "crooks in suits"

Assanah

Can you still enjoy your vacation knowing that at the end you will be breaking the law and will face immigration? Even if it is unlikely that immigration will do anything. For me personally that would be difficult.

snikpoh

He was talking about the 90 day residency rule though not the schengen rule!

DLC

I don't see how she's breaking the law if it's a Schengen rule, is on the EU website, and in the Schengen borders handbook.

By the way, there's a poster here, Lou71 who has explained how it works for Spain (it does work).

DLC

There is no 90-day residency rule for non-EU citizens. Non-EU citizens have to stick to the Schengen 90/180 day rule, accompany their EU partner/family around the EU (where the EU members of the family will be subject to maximum 90 days visit rule per country before registering) to not be subject to the 90/180 day rule, or apply for a residency visa from outside the EU.

bobd22

I think the confusion is with the OP being a UK citizen with EU passport so the EU 90 day rule would apply? I know that's not what op is asking about but I don't see how that can be ignored? I think it's clear by letter of the rules they shouldn't be in Portugal over 90 days in one visit. If they wish to stay longer and not register is their choice.

Lou71

Register as what? A tourist?

The OP has made it clear on the Portugal thread that he does not want to be resident in Portugal, he is resident in the UK and you can only be resident in one place.

The OP and his British wife can stay longer than 90 days in the Schengen zone if they wish (in this case it happens to be Portugal but it could be anywhere within the zone) but they must always travel through the external border together and they must carry proof of their relationship. The OP's wife will always have her passport stamped but it doesn't matter as long as she is with her EU partner and can explain why she has stayed in the zone for more than 90 days.

Once the new EES system comes into force, all third country nationals will have to go through separate automated EES gates which are linked to the a central Schengen database and overstayers will automatically be registered and presumably prosecuted. Obviously EU nationals will be exempt from EES and ETIAS but once it is up and running, the partners of EU nationals who want a six month holiday in the Schengen zone can never use the EES gates and will have to go to a manual booth with supporting documentation.

EU nationals don't need to take residency if they are taking a six month holiday and travelling as tourists. It would be quite ridiculous for someone who regularly spends six months every year in an EU state (which thousands upon thousands of EU nationals do) to keep chopping and changing their residency status. Schengen rules trump residency rules and the whole idea of EES is to catch third country overstayers and make the internal Schengen borders as easy, frictionless and invisible as possible for EU nationals.

DLC

In all of my replies, I've written it with the understanding that the EU citizen is the OP as he will be travelling on his EU passport and the non-EU citizen is his wife.

The EU citizen 90-day rule is 90 day per visit. To visit Portugal for more than 90 days and follow the letter of the law, they can legitimately fly in to Portugal, stay for a while, go on a day trip to Spain, return to Portugal, and the EU citizen 90-day clock is reset to 0.

Would a border guard want to see proof? Receipts, newspapers, photo of his wife standing in front of the blue "España" sign on the border? Who knows... not that two wrongs make a right but they didn't really get bothered with British "swallows" spending the winter in Spain.

Rooftile

Thanks all for your inputs. Most informative and very clear now on the process. One Q with the EES, if anyone knows.

My wife UK 3rd country accompanies me, EU citizen into Portugal or Spain…doesn’t matter. We bypass the EES and both proceed to the manual Border Control. My wife’s passport is stamped. All’s well. She then goes back to the UK on her own a week later and has to now pass through the EES. The EES system doesn’t have a corresponding entry logged in its own database as her entry a week earlier was done manually?

Does the EES effectively ignore the lack of entry record? Surely it has to know it to calculate overstayers? Or is the manual scan and ESS scan linked somehow so the entry and exit are instantly synchronised? If they are then how is the EES exit date reconciled as she was entered under FOM rules?

Lou71

Frankly, I can't see too many people bothering to do that because it's pointless although a lot of people do it by default if they are constantly flitting between borders - in some cases, several times a day.

Nobody is checking up on the movement of EU nationals, far from it and in fact the EU Commission want to make movement between EU states as invisible as possible because freedom of movement is god.