Jag frågade ditt Europa-råd via EG: s webbplats . De svarade (betonar min):
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 Sir,
Thank you for your enquiry.
You are right in pointing out that in accordance with Directive 2004/38/EC, you, as an EU citizen, have the right to travel freely within the territory of the Member States. You only need to have your valid passport or ID card with you. You may stay in another EU country for a period up to three months without having to comply with any further conditions or formalities. This right is also granted to your family members who are not EU nationals themselves and accompany or join you in the host country. Some EU countries require you and your non-EU spouse and children to report your presence to the relevant authorities within a reasonable period of time after arrival.
Meanwhile, if you intend to stay in another EU country for more than three months, you have to comply with further requirements. You can stay in another EU country for a period exceeding three months if (1) you are going to be working or (2) studying or (3) you are self-sufficient (i.e. you and your family members have sufficient resources not to become an unreasonable burden on the social assistance system of the host Member State during your period of residence and have adequate health insurance cover valid in the host country). In case you wish to stay in an EU country other than that of which you are a national for a period longer than three months, you may be required to apply for a registration certificate, and your non-EU national family members will be issued with a residence card clearly mentioning that it has been issued for a family member of an EU citizen.
We understand from your enquiry that you are a UK citizen meanwhile your spouse and minor child are Australian citizens and currently none of you resides in an EU country. Your question relates to whether your family members are required a visa to travel and stay in the Schengen zone for a period of approximately six months.
Pursuant to Article 5(2) of Directive 2004/38/EC, non-EU family members of an EU citizen may be required to have an entry visa in accordance with Regulation 539/2001, or with national law in the case of the UK and Ireland. Regulation 539/2001 lists countries whose nationals are subject to visa and also countries whose nationals are exempt from the visa requirement. In accordance with the provisions of the Regulation, nationals of Australia are exempt from the visa requirement for stay of no more than 90 days in any 180-day period.
Directive 2004/38/EC represents a lex specialis with regard to the Schengen Visa Code (Regulation 810/2009) which means that the Visa Code fully applies where the Directive does not provide an explicit rule.
With regard to right of entry for non-EU family members, the Directive clearly states that Member States may impose the visa obligation on non-EU family members in accordance with Regulation 539/2001, but their visas must be issued under facilitated conditions (namely free of charge and on the basis of an accelerated procedure). As the Schengen Visa Code only establishes the procedures and conditions for issuing visas for short stays in and transit through the territories of EU countries, an entry visa only entitles the non-EU family member to stay for up to 90 days in an EU country. After the first three months, a residence card for a family member of an EU citizen must be applied for. Then this residence card will ensure that the holder can travel freely within the EU together with his/her EU national family member and can stay in another Member State (different from the country which issued the residence card) for up to 90 days.
Although your family members are not visa nationals with regard to Regulation 539/2001, they can only stay in the Schengen zone for up to 90 days without having to comply with further administrative requirements. After three months of stay they have to register for residency in an EU country. The Directive does not overrule the Regulation 539/2001 and the Schengen Visa Code with this regard. (Otherwise it would constitute unlawful discrimination against family members of EU citizens who come from a third country whose nationals are subject to visa.)
Alternatively, your family members may apply for a long-term visa in a Schengen Member State (for example for a long-term visitor s visa), but long-term visas are always issued under national law. As a general rule, a third-country national holding a valid long-stay visa issued by a Schengen state may travel and stay in the territory of other Schengen states no more than 90 days in any 180-day period. For further information, we advise you to contact the embassy/consulate of the country you will be staying in for most of the travelling days (called as the main destination).
We hope this serves to clarify the issues raised in your query and thank you again for getting in touch with Your Europe Advice.
Medan det är negativt, tyder detta svar inte på att vistelsen längre än 90 dagar är ett allvarligt brott, bara att det inte går att fullgöra ett administrativt krav (även i vilket land det inte kan säga).
Det verkar som en slump att det kan vara en lösning på att ansöka om påföljande 90-dagars visum (som en person från en viseringstillstånd skulle kunna göra).
(Jag fick det här svaret innan jag lämnade Schengen-zonen som beskrivs i mitt andra svar här, men vi bestämde oss för att inte fördröja vår utgång baserat på den.)
UPDATE
Jag frågade igen en annan fråga om huruvida vi skulle få få tillbaka eller beviljade viseringar. Betona igen min.
Under the current EU Schengen rules, Australian nationals are exempt from visas for short stays of up to three months (90 days) in the Schengen area.
For short stays, your wife and children are entitled to spend up to 90 days in one or more of the Schengen countries over a 180-day period that begins with the date of their first entry into the Schengen area. This limit applies to all non-EU citizens, including those who are family members of EU citizens.
The 90-day limit on short stays applies to stays in the Schengen area as a whole, not to individual countries. The limit is not applied so that a visitor can spend 90 days in each country. Instead, the limit is applied so that a visitor can only spend 90 day in the Schengen area as a whole.
Unfortunately, there is no possibility to obtain an extension to a short-stay in the Schengen area, except on humanitarian grounds.
You should also know that the above rules only apply to Schengen countries. Therefore the above rules do not apply to the following EU countries: the UK and Ireland, as well as Bulgaria, Croatia, Cyprus and Romania which are not yet full members of the Schengen area.
For the UK, your wife and children would be permitted to stay up to 6 months in a year without the need for a visa. Australian nationals are exempt from the need for a visa for such short visits, as confirmed here: https://www.gov.uk/check-uk-visa/y/australia/tourism
For the other EU countries outside the Schengen area, your wife and children would be allowed to stay up to 3 months without the need for a visa.
This means regrettably that, if your wife and children wishes to stay in other countries in the Schengen area for over three months, they will need a residence card issued by the national authorities or apply for a long-term visa (category D).
At this stage, your wife and children s options are the following:
(1) Stay in Schengen countries for 90 days, then leave the Schengen area after having spent 90 days there and remain outside for another 90 days (in other words until the end of the 180-period that is used to calculate the 90-day permitted length of stay in the Schengen area). During this time, you and your wife and children could go to stay in the United Kingdom, Ireland, Bulgaria, Croatia, Cyprus or Romania, as these countries do not form part of the Schengen area; or
(2) apply for a long-term visa for the countries where you intend to visit and spend more than 90 days (your wife and children would need to apply at the relevant embassy in the country where he presently resides), or
(3) apply for a residence card as the family members of an EU citizen in an EU country when you know you will intend on staying more than three months there – this would then enable your wife and children to remain with you in that EU country beyond 90 days and travel to other Schengen countries for up to 90 days. However, it will require you and your wife and children to stay in that EU country during the time your family is awaiting the residence card, which can take up to six months.
In answer to your specific questions:
- Should my family travelling with me be automatically granted entry to Greece, despite this immediately resulting in an excess of 90 days in 180 days within the Schengen zone, as under the EU Directive 2004/38/EC and the Schengen Border Code they appear to enjoy the same free movement rights when travelling with me?
No, they have no such automatic right and are likely to be refused entry if they try to enter the Schengen area after their 90-day entitlement has expired.
- If not, although Australians usually need no visa, should my family be granted a visa for such travel as a family member of an EU citizen, requiring only proof of the relationship and a passport, free of charge, as specified by Directive 2004/38/EC?
As we explained above, they would either have to apply for a long-stay visa which is not governed by EU rules or a residence card for family members.
- If not, on what legal basis could the visa be denied?
It would depend on whether they applied for a visa or residence card. Applications for residence cards can only be denied if 1) you as the EU sponsor do not have a right of residence 2) your family members used fraud or are abusing the rules 3) your family members are a threat to public policy or public security. Visa applications can also be denied if you do not meet the specific conditions applicable to that category of visa.
- In case we are granted entry that immediately results in excess of 90-in-180 days in the Schengen zone, should we then expect to be able to leave Greece (and the Schengen zone) a month later without mishap at the border?
Probably not as your family runs the risk of having an expulsion decision and travel ban imposed against them.
We hope this answers your query.
Från min läsning av EG-artiklarna instämmer jag fullständigt med andra kommentarer här, att 90-dagarsgränsen inte ska gälla, och min familj när jag reser med mig ingår inte i definitionen av "tredjelandsmedborgare". Men med tanke på upprepade negativa svar från gränspolisen och den här tjänsten är vår entusiasm för att testa detta avtagande. Det är olyckligt att det enda sättet att ta reda på säkert har en sådan oproportionerligt hög kostnad för ett negativt svar.