Can I travel freely in the EU as the spouse of an EU citizen?

I am British and my wife has an EU (Irish) passport. We have a second home in France and often travel between the UK and France. I travel with a copy of Directive 2004/38/EC and our wedding certificate. If I travelled alone, would I encounter any problems?

You are correct when it comes to the Directive 2004/38/EC, which grants spouses the same freedom of movement as their EU citizen partner.

It states: “The right of all Union citizens to move and reside freely within the territory of the member states should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality.”

There are still some conditions on travelling, however, and importantly, the principle in the directive relates to travel to ‘accompany or join (ie. in an EU country where they are living)’ your EU-nationality family member. So, for example, it would not apply to you individually if you were just travelling around in the EU while your wife stayed at home in the UK.

With this proviso, as the spouse of an EU citizen with free movement rights, logically you should not be subject to the limit of 90 days in any 180-day period in the Schengen area that applies to people from ‘visa waiver’ non-EU countries as long as you are ‘accompanying or joining’ her in the EU.

In this case if you do not spend more than three months continuously in any one EU country, you should be able to travel in the EU without formalities. This includes staying in France up to three months, in which case you do not need to apply for any extra documents. Also as a British person (with a visa waiver) you do not need an entry visa for these short stays.

However, if you plan on staying longer than 90 days in France you should apply online for a residency card called carte de séjour ‘membre de la famille d’un citoyen de l’Union’ within the first three months of the stay in France. In this case as your rights come from your marriage link with an EU citizen it is firstly important that your spouse should be living legally in France beyond three months, which is not technically automatic (France generally has a flexible attitude towards residency of EU citizens).

EU rules on this include working or otherwise having sufficient means to support the basic needs of yourself and any dependent family. In the words of EU law: “Persons exercising their right of residence should not become an unreasonable burden on the social assistance system of the host member state during an initial period of residence.” The residence card will be valid for five years or however long you plan to stay in France but you must apply for it within three months of arrival.

You will not obtain it immediately but will obtain proof of having applied for it. The card is free. When you receive the card, it will clearly state that it is the residence card of an EU national family member. If you hold a residency card or card for five years or more, you may apply for a carte de séjour Directive 2004/38/CE - Séjour permanent - Toutes activités professionnelles. This will give you most of the same rights as an EU national.

Rules on moving to an EU country which is the country of the nationality of your spouse are different but do not apply to you.

Please note that with regard to the new EES digital borders system close family (spouse, Pacs or civil partner, children under 21 or who are dependents, dependent parents or grandparents) of an EU citizen who is exercising their EU free movement rights to visit France or another EU country will be registered in EES, but specifically as a ‘family member’ and they will not be subject to an automatic 90/180 days calculator.

The system will not flag up if they stay in an EU country (or wider Schengen area) with their EU family member beyond 90 days, however, they do have to apply for a residency permit if staying in any one EU country for more than three months. Their data will only be stored for a year.

With regard to Etias, family of EU citizens ‘exercising free movement’ will be subject to ‘family member’ rules exempting them from the fee.