TL; DR (because it has become MUCH longer than I thought – sorry!): Should we be concerned that my non-European boyfriend is applying for verification of EU law ( namely Directive 2004/38 / EC and we are comfortable, it is permissible) to the IND here in the Netherlands, some time after its first 90 days in the country (with a facilitation visa technically valid until 2022, but with an expected length of stay of 90 days specified) have already passed? Thanks in advance!
Hello everyone – I've chosen to ask this question here (and also on the ImmigrationBoards website) because I've already seen a number of similar (but not identical) questions here, and a number of questions. between you really seem to know what you are. I hope you can help me with a little comfort at least. Here are some similar questions that I've already looked at:
Does an application for a residence permit authorize the passing of a Schengen visa?
What are the rules for a non-EU family member traveling with an EU citizen?
I will try to simplify as much as possible a rather complex situation. I am a British citizen and my boyfriend is Thai (we are neither married nor under any type of registered partnership, but we cohabit de facto). We live together in Thailand for almost seven years. The duration of our cohabitation is therefore sufficient for us to qualify him as a member of my family who does not belong to the European Union, in the same way as for 2004/38 / EC. are satisfied – there is no problem there.
Last September, he managed to get a free and expedited facilitation entry visa from the Netherlands Embassy in Bangkok – everything went as planned – which was a Schengen C-type visa, if I understand it Well, that's normal.
The multiple entry visa is valid until 2022 (that was unexpected!) And we arrived together in the Netherlands on March 12th of this year. I am currently pursuing the freelance writing work that I have been doing for a few years in Bangkok and my boyfriend has not worked for a while, but intends to look for work here.
We did not encounter any problems when we went through passport control at Schiphol Airport – we did not even ask a question (as opposed to 2017, when we also arrived at Schiphol, this time a tourist C-type three-month multi-entry and regular visa, delivered free of charge by the Dutch Embassy to save us time after their outsourced outsourcing processing center has spoiled our member visa application EU 2004/38 / EC, on this occasion, the immigration officer Schiphol asked some friendly questions, as expected, but still nothing extraordinary).
Since we arrived here in March, we rented an apartment (which took a lot longer than expected) and, after my check-in appointment at the common (commune) of Gemeente two weeks ago, then a home visit from two of their staff, the latter because of a problem now resolved regarding the registration of the property by our landlord at the municipality – just a few days ago, j & # 39; I received confirmation by mail that I have been successfully registered as a resident of the population register.
I've had the different interdependent phases of our "arrival bureaucracy" – as in what is required for us to both be legally and fully registered here – planned for some time, and those (renting & renting). An apartment and myself registered with the municipality) were two of the first items on my list of six. The other four are as follows (as far as I know, they are always correct, but I am very happy to be able to be told the opposite if something escapes you, or in an order that does not make sense):
register as an independent at the KvK (Chamber of Commerce); I have an appointment to make Wednesday, June 12 to come and we need the certificate of this registration for the next step;
to register with the IND (the Netherlands Immigration Agency) as a citizen of the EU in order to obtain proof of the right to residency status (usually, it would not be necessary, but alas, we need this proof for the next step so that my boyfriend can ask for similar proof of his right to residence (and in any case, with the Brexit still imminent, it might not be bad to have my proof of this right at hand.) proof of admissibility I especially need to provide the certificate of registration for worker independent and proof that my freelance work involves real work (professional accounts / monthly professional documents / letter of the accountant, etc. – I hope to be able to get it with copies of invoices sent to my clients);
ask my friend to ask the IND to "check its compliance with European Union legislation" (that is to say its eligibility under Directive 2004/38 / EC ), in order to obtain a certificate of legal residence is or comes next to the residence card the size of a credit card – correct me if I'm wrong!); to be able to make the request, he must provide proof of my right of residence, proof of my work and income (hopefully I will be able to use the same independent registration certificate, the same bills, etc. at the previous step, but if not, I have also just accepted a full – time job offer in the past few days, so I should also have a signed work contract at use it instead if necessary) and proof of our relationship and cohabitation abroad (all this has already been demonstrated in the original visa application, so hopefully we can reuse this same evidence. IND insists that our previous leases in Thailand be legalized, we may have a problem because our last owner did not cooperate on this, and my boyfriend's birth certificate is the only one something that we managed to get legalized before we left – in this situation, we might have to rely on the photos of our trip. relationship that we have also submitted with the visa application, and hope that everything will go for the better from there); and finally
ask my buddy to sign up for the local municipality, as I have already done; for that, he needs the residence card that he should have obtained at the previous stage (so he could not register with the municipality at the same time as me, because as a as a citizen of the European Union, I did not need a residence card).
Now comes the potential problem and my question, and the part for which I hope some advice, or at least some comfort:
In an ideal world (and as originally planned), all of the above steps would have been completed within the first three months of our arrival, as, under the 2004/38 / EC law, it is the period for which my boyfriend (and me) can stay here without asking any other questions and without having to meet any other criteria (for example, the need I'm working on), which means that it's usually provided for that you will have completed at least until step 3 (its registration with the IND) at the end of these three months.
This also coincides with the maximum period of 90 days (over a period of 180 days) according to which non-EU / EEA / Swiss nationals from third countries who are not members of the EU / EEA / Short-term Schengen visas are generally supposed to stay in the Schengen area without applying for a longer-term visa / residence permit. This 90-day limit generally applies to short-term visitors, of course, even when – as in the case of my boyfriend – the expiry date of the visa is in fact set at 2022 (ie validity period of about four years, since it was issued 2018); like most of this duration, his visa has a field "length of stay" which reads "90" [days], and normally it would apply.
Clearly, all the other bureaucratic processes leading to step 3 have actually taken longer than expected, which means that none of the four steps above is yet complete. It is important to note that my boyfriend has not yet registered with the IND in accordance with step 3 – and here is the most important: his first 90 consecutive days in the Schengen area (and even in the case from the Netherlands, since their arrival) expire today (Sunday 09 June). (Last minute to ask for advice, I know, I know – doh!)
As I said, I registered as a self-employed worker on Wednesday, June 12 (now that I have accepted a full-time job, I could have waited for it to appear as proof of my work, but it would have I'm just delaying things – and I'll always be so independent, anyway. Fortunately, I can pay a little more for that day to get the certificate immediately, so there should be no more waiting for that.
Given the degree of subordination of each of the previous steps, I had so far scheduled the appointments with the IND once the previous steps were completed and I had in hand the Independent Registration Certificate and other documents. . But considering where we are, I plan to call the IND Tuesday (they are closed for a Monday holiday and an appointment for this type of application seems to be one of the rare types that you can "not do online!" to make appointments now, although I still do not know how long there might be waiting. (At least, I'll be able to talk to someone on the spot, and we should have a date of appointment in the agenda to submit our requests).
My main question is as follows: to your knowledge and / or experience, do you think that we may encounter problems when submitting my boyfriend's request for verification against EU law (2004 / 38 / EC) and the issuance of a certificate of legal residence (and thus his residence permit) under the fact that he "exceeded" the 90 days spent when he went to the office IND in person to apply?
Should we just wait and go ahead as planned, or – and I do not think there is another possibility for him to request an (urgent) extension of his current stay or, for example, to give him a other A sticker in his passport explicitly states this in the processing of his application for residence – should we instead choose the extreme alternative option and return it to Thailand in a day or two (before we have exceeded the grace period? apparent three days' period at the end of a 90-day stay, where no enforcement action seems to be taking place), and then probably have to wait another 90 days because of the rule 90/180 days and the need to wait for a new 180-day period, and only then come and start to complete the entire process?
The latter option is, of course, all the more risky and unattractive because, being a British citizen, no one of us knows for sure what will happen to Brexit in the future. Next 90 days. This means that it is perfectly conceivable that when the time comes for him to come back here, the Brexit could have already happened. In this case, I would no longer be a citizen of the EU and he would no longer have the right to settle here in the Netherlands. member of my (non) European family as he does now.
Clearly, I would prefer that we both stay here until everything is settled, but I obviously do not want him to encounter any immigration problems when leaving the country. " Schengen area, now or in the future, or even worse to come back in.
(Secondary Thought: Given that 2004/38 / EC seems to allow the family member to spend up to three months in a particular Schengen state / state with the EU national before having to apply for a card etc., but apparently this does not limit the time they can devote to the whole Schengen area (at least on the basis of the interpretation given in the SuperRoo response here and that of phoog here), provided that they move sufficiently (that is to say not staying more than three months) and traveling with the European national, it would be worthwhile to return briefly to another Schengen State for example on the other side of the Belgian border – or, theoretically, simply saying that is the case – and then return to the Netherlands to resume our path, having technically satisfied the requirements does it make sense? Is it worth it? "To be considered, useless or useless?"
Personally, here is what I think: I doubt more and more the seriousness of the situation, but I still do not believe that the 90/180 day rule applies to family members of non-member countries. European Union (provided they travel). or residing with the EU national). @phoog usefully explains here and here, in some detail and with regard to some parts of 2004/38 / EC, how the 90-day deadline does not apply to family members (no) of the EU because they are not considered as "third parties". This seems logical to me (and I also thought, writing that if the 90-day limit actually applied, there would surely be a difference between family members. who have spent three months without any question a particular Schengen country (just like their EU parent) and yet supposed to be able to stay in the Schengen area only for 90 days, depending on their visa (or their stamp of origin). For third country nationals) – knowing that 90 days is usually a little less than three months, this just does not seem to fit.
@phoog also points out that the freedom of movement of the family member and the EU citizen derives from Directive 2004/38 / EC rather than from any visa (which is merely a means of demonstrating his eligibility for entry into the EU). the country) or his / her residence card (which, once again, makes it more convenient to highlight the existing right to free movement rather than actually creating it, and without which the right still exists in its entirety ).
This separate answer, however, is part of a number that takes a slightly different view, suggesting that the 90/180 day rule always applies unless and until the member of the family has obtained a residence permit.
I sent a request to this effect to the consular contact center of the Dutch government, which I found very useful in the past (and which, more important than anything, is relatively quick to answer), and they advised :
"If I understand correctly, you want to know if your partner can stay more than 90 days in the Schengen area with a short-term Schengen visa.
I'm afraid your boyfriend can not stay in the Schengen area more than 90 days with a facilitation visa. Please note that this type of visa only applies to short stays (maximum of 90 days over a period of 180 days). I would advise him to leave the Schengen area before the end of the 90 day period. Otherwise, it stays too long, which can lead to an alert Schengen Information System. & # 39;
However, in light of all the above, what they have said to me now seems to me less and less likely (I wonder if the staff member of the Consular Contact Center appreciates perhaps not quite the rights conferred on the family member by 2004. / 38 / EC, with or without a visa or residence permit, and the implications for a "prolongation of the duration" being effectively possible in that case).
In addition, many articles such as this one have also highlighted that 2004/38 / EC also indicated that family members who did not comply with the obligation to register, for example, with the IND, as in this case, should only result in and non-discriminatory sanctions ". (@phoog also points out this remark here.) The IND website even states (although pertaining to a slightly different subject, but still in the context of "staying too long" or being " illegally "in the Netherlands), that the application of prohibition of return to the Netherlands (for example)" does not apply to citizens of the EU / EEA and their family members ".
(Despite this, the consular contact center person reports the risk of a Schengen Information System alert if my boyfriend "spends too much time".)
Therefore, even if my boyfriend "stays too long" (that is, even if they interpret it that way, which does not seem to me at all as it should be), the initial period of 90 days of a few more days (or even longer). Before he can finally submit his candidacy to the IND, it seems that the worst he will get by posting is a slap on the wrist and maybe a fine – or maybe, if we're lucky, not even that.
I think putting all this in writing in an article as long and long (sorry!) Has already somewhat reassured me – but I'm still a little torn as to the best thing to do, so I'd appreciate really any advice that someone could give. especially if someone has ever had experience with this or something similar in the past. Should I be concerned? Or am I worried about anything? What are your thoughts? A huge thank you in advance – and thank you for reading so far!