TL; DR (because this has become a MUCH longer contribution than I expected – sorry!): Should we be worried that my non-EU friend will file a request for review against EU law (namely Directive 2004/38 / EG and for whom we feel well otherwise he qualifies to the IND here in the Netherlands some time after his initial 90 days in the country (with a visa that is technically valid until 2022 but with an alleged stated stay of 90 days) have already passed? Thank you in advance!
Hello everyone, I have decided to post this question here (and also on the ImmigrationBoards website), as I have seen a number of similar (though not identical) questions here and some of you really seem to know what you are I hope you can calm me down at least a little bit. Here are some similar questions that I have already discussed:
Does a residence permit permit crossing a Schengen visa?
What are the rules for a non-EU family member traveling with an EU national?
I will try to simplify as much as possible, which is a fairly complex situation. I am a British citizen and my friend is Thai (we are neither married nor in any way in a registered partnership, but we are actually living together). We have lived together in Thailand for almost seven years so that the length of our coexistence for the purposes of 2004/38 / EC will be sufficient to qualify him as my non-EU family member and for all other eligibility requirements of 2004/38 / EC are fulfilled – there is no problem.
In September of last year, he successfully received a free, accelerated entry visa to facilitate entry from the Dutch Embassy in Bangkok – everything went according to plan – which, I understand, was issued as a Schengen Type C visa.
The multiple visa is valid until 2022 (that was unexpected!), And we arrived here on the 12th of March this year in the Netherlands. I continue my freelance freelance paperwork that I did for a few years in Bangkok, and my friend has not worked for some time, but intends to seek work here.
We had no problems when we passed the passport control at Schiphol Airport – we were not even asked a single question (unlike in 2017, when we arrived in Schiphol at that time, with a three-month Schengen type C tourist with multiple entries ) The visa was issued by the Dutch Embassy courtesy to save us time after the outsourced application center had screwed up our application for an EU family visa 2004/38 / EC. On this occasion, the immigration officer in Schiphol asked a few friendly questions, but still nothing out of the ordinary.
Since we arrived here in March, we have rented an apartment (which took much longer than expected) and – after my registration at the local government (municipality / town hall) a few weeks ago and a subsequent home visit to two of their employees, the latter due to a now solved problem in the registration of the land in the community by our landlord – only a few days ago I received a postal confirmation that I was successfully registered in the population register.
I have planned the various interdependent phases of our "arrival bureaucracy" – as both of us need to be legally and fully registered here – for some time, and these (renting an apartment and registering with the community) were two of the first points on my list of six. The remaining four are as follows (as far as I know, these are still correct, but I am very happy to be told otherwise if they are addressed incorrectly or in an order that does not make sense):
register with the KvK on my own; I have an appointment for this next Wednesday, June 12, and we need the certificate of that registration for the next step.
I am registering as an EU citizen with the Dutch Immigration Service (IND) to obtain proof of residency (this would normally not be required as an EU citizen but unfortunately we need this proof of residency permit Friend can request a similar proof of his right of residence (and in any case it is not a bad thing to have my credentials in view of the forthcoming Brexit) Proof of entitlement I must, in particular, submit the self-employment registration certificate and prove that my self-employment includes a real work (business accounts / monthly business records / accountant letter etc) .I hope i can get along with copies of bills sent to my clients);
Let my friend apply to the IND for a "review against EU law" (ie his entitlement under 2004/38 / EC) to obtain a certificate of legal residence (which I assume) is or comes next to the actual residence card in credit card format – please correct me if I'm wrong!); In particular, in order to apply, he must present my own proof of residency, as above, together with evidence of my work and income (with luck I may use the same certificate and bills for self-employment registration, etc.) in the previous step, but if not, then in the last few days I have accepted only a full-time job offer. Therefore, at this point, I should have a signed employment contract, which I can use instead, if necessary) and proof of our relationship and our coexistence abroad (all this was previously demonstrated in the original visa application, so we can hopefully reuse the same evidence. However, if the IND insists that our previous joint Thai leases, etc., be legalized, we may have a bit of a problem, as our last landlord was not cooperative in this regard and my friend's birth certificate is the only one we have before ours Legalizing departure – in this situation we may have to rely on the photos of our course relationship that we have also submitted with the visa application and hope for the best of it); and finally
Have my friend register with the local community as I have already done. For this he needs the residence card that he should have received in the previous step (therefore he could not register with the community at the same time as I, as an EU citizen, did not need a residency card).
Now come the potential problem and my question and the part to which I am seeking some advice or at least a little confirmation:
In an ideal world (and indeed, as we had originally expected), all of the above steps would have been completed within the first three months of our arrival here, as this is the period for which this is the case under the 2004/38 EC legislation My friend (and I) can stay here without asking any further questions and without fulfilling other criteria (eg the need for me to work). This means that it is generally expected that you have completed at least Step 3 (its registration with the IND) until the end of these three months.
This also corresponds to the maximum period of 90 days (in a 180-day period) during which non-EU / EEA / Swiss nationals with a Schengen short-stay visa should generally remain in the Schengen area without applying for a longer-term visa , Residency permit. This period of 90 days is, of course, generally applicable to short stays, even if the visa, as in the case of my friend, actually expires in 2022 (which is approximately four years since it was issued in 2022) 2018); Like most of this length, his visa still has a "length of stay" field, which is "90". [days]and usually that would be true.
Obviously, all the other bureaucratic procedures that led to Step 3 took longer than expected, meaning that none of the four steps above are yet complete. Importantly, my friend is not yet registered with the IND in step 3 – and here's the big, his first 90 consecutive days in the Schengen area (and in his case in the Netherlands, since he was not) abroad since Arrival) expire today (Sunday, June 09). (Last minute to ask advice, I know, I know – doh!)
As already mentioned, my appointment as a self-employed person on Wednesday, 12 June (since I had now accepted a full-time job, I could only have waited for this to come through as proof of my work, but that would have been the case) Delayed things further – and I will definitely be on my own). Fortunately, I can pay a little more on that day to get an extract of the certificate there, so there should be no more waiting time.
Given the fact that the individual steps are dependent on the previous steps, I have so far planned to agree the dates with the IND only when the previous steps were completed and I received the certificate of self-employment registration and other documents in the Hand had to get started. But since we're here, I plan to call the IND on Tuesday (closed on Monday for a holiday, and an appointment for this type of application seems to be one of the few you can). t make it online!) to make the appointments now, although I still do not know how long it could take. (At least I can talk to someone there, and we should have an appointment to submit our applications in the diary.)
My main question is: Do you think that your knowledge and / or experience may cause problems in filing my friend 's application for review under EU law (2004/38 / EC) and issuing a residence permit (and)? therefore his residence card) because he has passed the last 90 days when he personally visits the office of the IND to file his application?
Let's just wait and go ahead as planned, or – and I think there's no other alternative here to apply for an (emergency) extension of his existing stay or to give him an extra sticker in his passport to express him Instead, we should choose the ultimate alternative and have him return to Thailand the next day or so (before we are over the apparent three-day deadline). & # 39; Period at the end of a 90-day stay, in apparently no enforcement action was taken) and then presumably because of the 90/180 day rule and the need to wait for a new one, another full 90 days wait 180-day period, and then just come and start over to complete the whole process?
Of course, this last option is all the riskier and less attractive than being a British citizen and none of us knows exactly what's going to happen in terms of Brexit over the next 90 days. That is, it is quite conceivable that Brexit might have already arrived by the time he has to return here. In that case, I would no longer be an EU citizen and he would no longer have the right to settle here in the Netherlands as my (non-) EU family member as he is now.
Of course my strong preference would be for us to stay here now until everything is settled, but of course I do not want him encountering immigration problems now or in the future when leaving the Schengen area, or worse, when we come back in.
(Second thought: In view of the 2004/38 / EC, the family member seems to be entitled to spend together with the EU citizen up to three months in any Schengen state, before a request for a residence permit, etc. must be made the time that they can spend throughout Schengen space (at least based on the interpretation in SuperRoo's answer here and in phoog's answer here), provided they move enough (ie they do not stay longer than three months) and are when traveling with the EU citizen, could it also be worth traveling to another Schengen state for a short time, crossing the border into Belgium – or, theoretically, saying that we did? – and then to the Netherlands to return to where we left off (does it make sense to technically meet the requirements of the rules, is it worth considering, unnecessary or unhelpful?)
Here is my personal point of view: I increasingly doubt this, given the gravity of the situation, but I still do not believe that the 90/180 day rule applies to family members outside the EU (assuming they are traveling) or resident in the EU EU). Here and here @phoog explains in detail and with respect to certain parts of Directive 2004/38 / EC that the 90-day deadline for (non-) EU family members does not apply because they are not considered as third-country nationals. Nationals of the country for this purpose. That makes perfect sense to me (and I also noticed while writing that if the 90-day deadline were indeed to apply, there would certainly be a gap between family members who have three months to ask no questions at all a specific Schengen country (as well as their EU relative) and allegedly only 90 days in the Schengen area (or entry stamps for non-visa nationals) – provided that 90 days are usually less than three months, it seems just not fit.
@phoog also points out that the free movement of the family member together with the EU citizen results from Directive 2004/38 / EC and not from a visa (which merely provides proof of entry) or a residence card (which in turn is easier) the existing right to free movement, as it actually does, and without which the right still exists in full).
However, this separate answer is one of a number that takes a slightly different view, suggesting that the 90/180 day rule will still apply unless and until the family member has received a residence card.
I have sent a request to the Consular Contact Center of the Dutch Government, which I have found very helpful in the past (and which, above all, reacts rather quickly), and they have advised:
"If I understand that correctly, you would like to know if your partner with a Schengen short-stay visa can stay in the Schengen area for more than 90 days.
I'm afraid your friend can not stay longer than 90 days in the Schengen area with a visa. Please note that this type of visa is only valid for short stays (maximum of 90 days within a period of 180 days). I would advise him to leave the Schengen area before the 90-day deadline. If this is not the case, it is overwhelmed, which can lead to a warning of the Schengen Information System. "
However, in light of the above, I find it increasingly unlikely that what you have told me is true (I wonder if the consular officer of the consular center may not fully acknowledge the rights granted to the family member until 2004). / 38 / EC, with or without visa OR residence card, and the effects that may actually result in "crossing" in this case).
In addition, numerous contributions such as this have highlighted that Directive 2004/38 / EC also states that family members who fail to meet their obligations, for example, as in this case, should register with the IND on time, should only produce reasonable results and non-discriminatory Sanctions ". (@phoog points out here as well.) The IND's own website even states (albeit in connection with a slightly different topic, but still related to "overcrowding" or "illegal" residence in the Netherlands) that the Application of The ban on returning to the Netherlands, for example, does not apply to EU / EEA citizens and their family members.
(Nevertheless, the person in the consular center points to the risk of a Schengen Information System alert if my friend remains "overly".)
Even if my friend exceeds the original 90-day period by a few days (or even longer) (that is, even if they interpret him as I do not)) before he finally submits his application to the IND can submit, it sounds like the worst he / she gets in the application is a slap on the wrist and maybe a fine – or maybe, if we're lucky, not even that.
I think writing everything down in such a long, long post (sorry!) Has helped me to calm down a bit – but I'm still a bit torn, which I can do best, especially if someone in the past has had experiences with it or something similar. Should I be worried? Or am I not worried about anything? What are your thoughts? Thank you in advance – and thank you so much for reading!