Now I have a EU passport as well as UK one, my UK spouse is still worried about her 90/180 day stay and she will be over by a few days towards the end of this year with our planned stays. So we checked a few weeks ago with the SEF at Faro airport and they said even when she accompanies me as an EU citizen she is limited by the 90/180 rule and has her passport stamped. I am not worried about the stamp but I think they are wrong on the 90 day rule but hard to prove it. I will go to the SEF in Faro shortly and confront them with this issue.

In the meantime, is there any couple who have had experience of any formality with PT Border Control on this issue where an EU citizen accompanies a 3rd country national eg UK and challenged the 90 day rule/having passport stamped?

I’ve quoted in a previous EES post where the EU answered me on this point ie 3rd country spouses accompanying a EU citizen are not subject the 90 day rule. Great I thought then….

However reading recently a EU directive on the EES Regulation and who it applies to has me confused now with section 3a below mentioning …’does not apply if 3rd country nationals travel with a EU citizen AND having a residence card ‘ ?

Hence my spouse has to have a PT residence card too to avoid the 90 day rule??? This additional caveat of the residence card negates the EU response I received some months back. Appreciate update from those in the know!

EU directive on the EES Regulation and who it applies to:

Article 2

Scope

1. This Regulation applies to:

(a) third-country nationals admitted for a short stay to the territory of the Member States who are subject to border checks in accordance with Regulation (EU) 2016/399 when crossing the borders at which the EES is operated; and

(b) third-country nationals, on entry to and exit from the territory of the Member States, who:

(i) are members of the family of a Union citizen to whom Directive 2004/38/EC applies or of a national of a third country enjoying the right of free movement equivalent to that of Union citizens under an agreement between the Union and its Member States, on the one hand, and a third country, on the other; and

(ii) do not hold a residence card pursuant to Directive 2004/38/EC or a residence permit pursuant to Council Regulation (EC) No 1030/2002 (32).

2. This Regulation also applies to third-country nationals whose entry for a short stay to the territory of the Member States is refused in accordance with Article 14 of Regulation (EU) 2016/399.

3. This Regulation does not apply to:

(a) third–country nationals who are members of the family of a Union citizen to whom Directive 2004/38/EC applies and who hold a residence card pursuant to that Directive, whether or not they accompany or join that Union citizen;

(b) third-country nationals who are members of the family of a national of a third country, whether or not they accompany or join that national of a third country, where:

(i) that national of a third country enjoys the right of free movement equivalent to that of Union citizens under an agreement between the Union and its Member States, on the one hand, and a third country, on the other; and

(ii) those third-country nationals hold a residence card pursuant to Directive 2004/38/EC or a residence permit pursuant to Regulation (EC) No 1030/2002;

(c) holders of residence permits referred to in point 16 of Article 2 of Regulation (EU) 2016/399 other than those covered by points (a) and (b) of this paragraph

Have you actually sent an email to Europe Direct?

If not, it would definitely be worth your writing to them for clarity giving details of your exact personal situation.

You can then print off their reply which you can produce at borders as back up.

As far as I know, the partners of EU nationals (resident in the EU or not) are not restricted to the 90/180 day travel rule. As you say, their passport will be stamped in and out but apparently that doesn't matter as long as you always travel together.

Thanks Lou71, yes I have the reply from Europe Direct as below. It clearly says my wife is not bound by the 90 day rule as long as she travels with me. However The Faro Border Control has the final say so I must get their ok that they agree. Just wondering if anyone has experience of this issue when crossing the border…positive or negative. Thx

Extract of reply from the EU:
However, if you are travelling with your spouse to a Schengen country other than that of your nationality, or your spouse is joining you in such a country, the 90/180 days limitation does not apply. Accordingly, any stays in the Schengen area together with you will not be taken into account when your spouse travels again without you. Please be aware, however, that in this case your spouse might need to have documentation to show when you were travelling together and when you were not.

Hi.. I am the spouse of an EU citizen(Portugal). I have been advised on 2 occasions(one by our Camara) that I needed to apply for residency to overide the 90 day rule. Whether they are correct ?? It beats me! I have residency which i would prefer not to have.

"However, if you are travelling with your spouse to a Schengen country other than that of your nationality, or your spouse is joining you in such a country, the 90/180 days limitation does not apply"

Re the above. I'm reading this as If you/spouse visit eg Germany and your EU citizenship is PT, then you can stay over the 90 days in Germany. I was under the impression that the rule would apply to a stay out of PT.

The EU directive above is a load of gobbledegook for the majority of people.There is so little clarity.

To OP (dont want to copy lengthy post), law on free movement is crystal clear. Dont pay attention what SEF clerk is saying, unless he/she is willing to put that in writing (you'll find they will never).
Going to SEF for answer will be waste of time.

As partner of EU citizen, and only when traveling with partner, she is covered under free movement. However, if she stays more then 90 days continuously, she must register residence with SEF.
She can leave Schengen with partner on 89th day, and re-enter Schengen next day with partner, starting new 90d residence clock.

When she travels on her own, she is under 90/180 rule. This is when problem can arise. Border guard will check all her stamps to check compliance. So if she got stamped when traveling with EU partner, that stamp will be counted next time she crosses border on her own. This serves its purpose to stop people abusing free movement without getting residence.
Solution is to never travel on her own or make sure she's been outside Schengen for min 90d. Or get residence card.

Thanks. Seems a lazy reply from the authorities. It’s obvious that with residency the 90 day rule is exempted. But the issue is when travelling/joining a EU spouse. Net on the face of it, PT state that to stay together, the EU spouse is bound by the 90 day rule too and has to leave the EU after 90 days. That’s discriminatory for sure. No mention of this from the EU. Need to escalate this with the EU.

I disagree. EU directive/laws are clear to anyone who wants to read them.

You (and many other) are mixing up EU residency law(part of free movement) with Schengen rule for non-EU nationals.

As non-EU national, one is limited to 90/180d stay in Schengen.
As EU-national or his/her family member (if accompanied), all are required to register for residency if staying in any EU state continuously for more then 90d. Or leave before 90d comes up. Simple.

If you stay more then 90d in DE with PT partner, you both must register for residency or leave. It has nothing to do with PT.

Just like toots sweet post, both are confusing Schngen rule 90/180d with 90d requirement to register as resident if staying as EU or EU national family member.

EU spouse doesnt have to leave EU after 90d if she/he register as resident. Dont confuse Schengen rule with free movement directive, they both mention 90d, but for completely different scenarios.

I agree with the last two posts. To stay for more than 90 days, spouse/legal partner must register for residence, even when in citizen's company in citizen's country.

P.S. OP doesn't state nationality of his second passport. Unless it is a Portuguese one, he also has to register presence if in Portugal >90 days.

Thanks EUflag. 2 q’s.

a. As partner of EU citizen, and only when traveling with partner, she is covered under free movement.

So how do I as a EU spouse with her (without residency) do I tackle Border Control at Faro airport and say she has freedom of movement because she is with me? I don’t want to have a standing argument with SEF at Faro airport. I know who will win without some pre-planning.

b. So if she got stamped when traveling with EU partner, that stamp will be counted next time she crosses border on her own. This serves its purpose to stop people abusing free movement without getting residence.

​​​​​​⠀‹Not sure what this means…’will be counted’…against which count? So assuming the 90 day is exempted when travelling with me, say she comes to PT with me on 1 July, then on 7 July she goes back to the UK on her own for 2 days and comes back to PT to join me, I would assume that 1-7 July her PT stay is not counted towards her 90 days as she is with me, neither does the 2 days in the UK and neither does the time after when she arrived back to the PT to join me ie freedom of movement for her is allowing her to join me in PT? Notwithstanding how do the Border Control know that she is joining me when she returns as I could have left PT in the meantime? So I guess you are saying that when she leaves on her own on 7 July ie without me, the fact that she entered with me on the 1 July is ignored and reverts to having entered on the 1 July on her own and the 90 day clock starts 1 July. Net for the exemption of the 90 day rule to work she has to always enter and leave with me without breaks of her own travel out from PT. Having said this, not sure how this caveat stops the abusement of FOM?

Thanks for the last 2 posts. I am not sure why you think I am giving a confused account. I completely understand the Schengen vs FOM rules. I am not concerned with the latter as I know we will never stay for a 90 day continuous period and hence never need to register. My ONLY concern is with my wife’s Schengen stay ie the 90/180 day rule when she tips over by a few days and how this rule is exempted when travelling with me - pls see the first line of my opening message.

For clarity, under Schengen, PT state a 3rd country national needs both a EU spouse travelling with them AND being resident to be exempt from the 90/180 day rule (FOM state the EU person has to register after 90 days continuous stay). My issue is why PT state she needs to have residency too and the EU does not mention this at all, just that she travels with me. I need clarity from anyone on this point ONLY as well as those who have dealt with Border Control with this exemption situation.

EUFlag. Await your reply.

GrahamF. My second passport is Polish.

I'm afraid we get bogged down with this residency nonsense all the time on here.
If an EU national wishes to have a 6 month holiday in another EU state, they are not required to take permanent residency after 3 months because they are on holiday and going home in 3 months' time. Rumour has it (although I have yet to meet an EU national who has actually done it) EU nationals are supposed to toddle off to the authorities, fill out a form (which I have yet to see) and register as tourists after 3 months. I ran this past my Portuguese lawyer and she wondered what the hell I was talking about.

So don't get bogged down with that. You are an EU national and your non EU partner is exempt from the 90/180 travel rule. You might just have to make sure you carry as much supporting documentation as possible, never travel individually and take a chance.

a. You must have marriage cert with you to prove she is your wife. NONE at EU border can deny you (as EU national) and your family free movement!!!
Due to language barrier, its easy to misunderstood 90d rule. Could been just a reminder from border guard that she's free from 90/180 rule only when crossing border with you.

b. As I stated before, your wife has free movement only when crossing border with you. Any other time, she's under Schengen rules. If she exits Schengen on her own and without residence card, her stay is added to 90/180d rule, plus new stamp. She has free movement only & only when crossing border with you as EU national.

If you want to learn technicality details, search web for Schengen Border Code & EU free movement rights.

Lesson #1. In PT gov officials (inc border guard), have habit to make up things as they go, as cover-up for lack of knowledge of poor job training.

EU directive is EU law and PT cant attach/change any conditions. Have a read on here and follow all links,
https://commission.europa.eu/strateg...d-residence_en

Not so sure about that, this statement is part of a reply I received from Europe Direct a couple of years ago -

(ii) For stays longer than 90 days in any 180-day period the national legislation of each Schengen State will apply, meaning that you need to check in advance whether you will need an entry visa for the countries concerned;