TL;DR (because this has turned into a MUCH longer post than I anticipated - sorry!): should we be concerned about my non-EU boyfriend submitting an application for verification against EU law (namely directive 2004/38/EC, and for which we are otherwise comfortable he qualifies) to the IND here in the Netherlands some time after his initial 90 days in the country (on a facilitation visa technically valid until 2022, but with a supposed 90-day duration of stay specified) have already passed? Thanks in advance!
Hello everyone - I'm choosing to post this question here (and also on the ImmigrationBoards site) as I've seen a number of similar (though not identical) questions here, and a number of you seem to really know what you're talking about, so I'm hoping you'll be able to help me with a little reassurance at least. The following are a couple of the similar questions I've already reviewed:
I'll try and simplify as much as possible what is a fairly complex situation. I'm a British citizen, and my boyfriend is Thai (we're neither married nor in any form of registered partnership, but we have a de facto cohabitation). We lived together in Thailand for almost seven years, so the length of our cohabitation is sufficient for the purposes of 2004/38/EC to qualify him as my non-EU family member, and likewise all other eligibility requirements of 2004/38/EC are met - there's no issue there.
Last September he successfully obtained a free-of-charge, expedited facilitation entry visa from the Dutch Embassy in Bangkok - everything went according to plan - which was issued as a Schengen type C visa, as I understand is normal.
The multiple-entry visa is valid until 2022 (that was unexpected!), and we arrived here in the Netherlands together on 12 March this year. I am for now continuing with the self-employed freelance writing work I have done for some years in Bangkok, and my boyfriend hasn't been working for some time but intends to look for work here.
We had no issues when passing through passport control at Schiphol Airport - we weren't even asked a single question (unlike in 2017, when we also arrived into Schiphol, that time on a regular three-month, multiple-entry Schengen type C tourist visa, issued as a courtesy by the Dutch Embassy to save us time after their outsourced application centre screwed up our application for a 2004/38/EC EU Family Member visa; on that occasion, the immigration officer at Schiphol asked a few friendly questions as is to be expected, but still nothing out of the ordinary).
Since arriving here in March, we have rented an apartment (that took a considerably longer time than expected), and - following my registration appointment at the local Gemeente (municipality/town hall) a couple of weeks ago and a subsequent home visit by two of their staff, the latter owing to a now resolved problem with our landlord's registration of the property with the municipality - just a couple of days ago I received confirmation by post that I have been successfully recorded as resident in the population register.
I've had the various interdependent phases of our 'arrival bureaucracy' - as in what's required for us both to be legally and fully registered here - mapped out for some time, and those (renting an apartment, and me registering with the municipality) were two of the first items on my list of six. The remaining four are as follows (as far as I'm aware these are still correct, but I'm very happy to be told otherwise if something jumps out at you as wrong, or in an order that doesn't make sense):
register myself as self-employed with the KvK (Chamber of Commerce); I have an appointment to do so this coming Wednesday 12 June, and we need the certificate of this registration for the next step;
register myself with the IND (the Netherlands' immigration agency) as an EU citizen in order to obtain a proof of entitlement to residency status (ordinarily as an EU citizen this wouldn't be necessary, but alas we need that proof of entitlement for the next step in order for my boyfriend to be able to apply for a similar proof of his entitlement to residency (and in any case, with Brexit still looming it might be no bad thing to have my proof of entitlement on hand). To obtain my proof of entitlement I notably need to provide the self-employment registration certificate and evidence that my self-employment involves real work (business accounts/monthly business records/accountant's letter etc - I'm hoping I can get by with copies of invoices sent to my clients);
have my boyfriend apply for 'verification against EU law' (i.e. his eligibility under 2004/38/EC) with the IND, in order to obtain a certificate of lawful residence (which I assume either is or comes alongside the actual credit-card-sized residence card - please correct me if I'm wrong about that!); in order to apply for that, he notably needs to provide my own proof of entitlement to residency status as above, along with evidence of my work and income again (with any luck I can use the same self-employment registration certificate and invoices etc as in the previous step, but if not then I have also just accepted a full-time job offer in the past couple of days, so by this point I should also have a signed employment contract to use instead if need be) and evidence of our relationship and our cohabitation abroad (this was all previously evidenced in the original visa application, so hopefully we can re-use that same evidence - however, if the IND insists on our previous joint Thai tenancy agreements etc being legalised then we might have a bit of a problem, as our last landlord was uncooperative on that front, and my boyfriend's birth certificate is the only thing we managed to get legalised before leaving - in that situation we may have to rely on the photos of the course of our relationship that we also submitted with the visa application, and hope for the best from there); and finally
have my boyfriend register at the local municipality, as I already have; for this he needs the residence card he should by now have obtained in the previous step (hence he couldn't register with the municipality at the same time as me, since as an EU citizen I didn't need a residence card).
Now comes the potential problem and my question, and the part where I am hoping for some advice, or at least a bit of reassurance:
In an ideal world (and indeed as we originally anticipated), all of the steps above would have been completed within the first three months of us arriving here, since by the letter of the law under 2004/38/EC that's the period for which my boyfriend (and I) can stay here with no other questions asked and without needing to satisfy any other criteria (e.g. the need for me to be working), meaning that it's generally expected you'll have completed at least up to step 3 (his registration with the IND) by the end of those three months.
That also coincides with the maximum 90 days (in a 180-day period) that non-EU/EEA/Swiss nationals on a short-stay Schengen visa are generally meant to stay in the Schengen area without applying for a longer-term visa/residence permit. That 90-day limit applies in general to short-stay visitors, of course, even when - as in my boyfriend's case - the visa's expiry date is actually in 2022 (giving it a roughly four-year validity period, since it was issued in 2018); like most of that length, his visa nevertheless still has a 'duration of stay' field that reads '90' [days], and ordinarily that would apply.
Evidently, all the other bureaucratic processes leading up to step 3 have in fact taken longer than expected, meaning that none of those four steps above are yet complete. Importantly, my boyfriend hasn't yet registered with the IND as per step 3 - and, here's the big one, his initial 90 consecutive days in the Schengen area (and indeed in his case in the Netherlands, since he hasn't yet been abroad since arriving) expire today (Sunday 09 June). (Last-minute to be asking for advice, I know, I know - doh!)
As I mentioned, my appointment to register as self-employed is on Wednesday 12 June (now that I've accepted a full-time job, I could have just waited for that to come through as evidence of my work, but that would have just delayed things further - and I'll still also be self-employed on the side, in any case). Fortunately, I can pay a little extra that day to come away with an extract of the certificate there and then, so there shouldn't be any more waiting around for that.
Given how contingent each of the steps are on the ones before, until now I was planning to only make the appointments with the IND once the previous steps were complete and I had the self-employment registration certificate and other documents in my hand ready to go. But given where we're at now, I'm planning to call the IND on Tuesday (they're closed for a public holiday on Monday, and an appointment for these kinds of application seems to be one of the few kinds you can't make online!) to make the appointments now, although I still don't know how long a wait there might be. (At the very least I'll be able to speak to someone there, and we should have an appointment date in the diary for submitting our applications).
My main question is this: in your knowledge and/or experience, do you think we are likely to encounter problems in submitting my boyfriend's application for verification against EU law (2004/38/EC) and issue of a certificate of lawful residence (and therefore his residence card) by virtue of him having 'overstayed' past the '90 days' by the time he visits the IND's office in person to submit his application?
Should we just wait it out and go ahead as planned, or - and I don't believe there's any other alternative here for him to apply for an (emergency) extension of his existing stay or, say, for him to be given an additional sticker in his passport to explicitly carry him over to the processing of his residence application - should we instead take the extreme alternative option and have him return to Thailand in the next day or so (before we're over the apparent three-day 'grace' period at the end of a 90-day stay, where no enforcement action seems to take place), and then presumably have to wait there for another full 90 days because of the 90/180 day rule and the need to wait for a fresh 180-day period, and only then come over and start afresh at getting the whole process wrapped up?
That last option is, of course, made all the more risky and all the less appealing by the fact that, with me being a British citizen, none of us know for sure what will happen in relation to Brexit over those coming 90 days. That means it's perfectly conceivable that, when the time comes for him to head back here, Brexit could well have already happened, in which case I would no longer be an EU citizen and he would no longer be entitled to settle here in the Netherlands as my (non-)EU family member in the way that he is now.
Clearly, my strong preference would be for us both to stay here now until everything is sorted, but obviously I also don't want him to encounter any immigration problems on departure from the Schengen area now or in the future, or worse still when coming back in.
(Side thought: given 2004/38/EC seems to entitle the family member to spend up to three months in one/each particular Schengen state together with the EU national before needing to apply for a residence card etc, yet apparently doesn't limit the amount of time that they can spend in the Schengen area as a whole (at least based on the interpretation in SuperRoo's answer here and in phoog's answer here) provided they are moving around enough (i.e. not staying anywhere longer than three months) and are travelling with the EU national, could it even be worth us popping briefly to another Schengen state, say across the border to Belgium - or theoretically even just saying that we have? - and then coming back to the Netherlands to pick up where we left off, having technically fulfilled the requirements of the rules? Does that make sense? Is it worth considering, unnecessary, or unhelpful?)
Here's my take, personally: I'm increasingly doubting myself on this in the face of the gravity of the situation, but I still don't believe that the 90/180 day rule applies to non-EU family members (provided they are travelling or residing with the EU national). @phoog helpfully explains here and here, in some detail and in terms of specific parts of 2004/38/EC, how the 90-day limit doesn't apply to (non-)EU family members because they are not considered 'third-country nationals' for this purpose. That makes total sense to me (and it also occurred to me while writing this that, if the 90-day limit did actually apply, there would surely be a discrepancy between family members having three months of totally-no-questions-asked time in a particular Schengen country (just as their EU relative does) and yet supposedly only being allowed to remain in the Schengen area for 90 days of that as per their visa (or immigration stamp in the case of non-visa nationals) - given that 90 days is usually just less than three months, that just doesn't seem to square up.
@phoog also points out that the family member's freedom of movement together with the EU national is derived from directive 2004/38/EC, rather than from any visa (which is just a means of demonstrating eligibility to enter the country) or residence card (which, again, just more conveniently evidences the already existing right to free movement, rather than actually creating it, and without which the right still exists in full).
This separate answer, however, is one of a number that take a slightly different view, suggesting that the 90/180 day rule still applies unless and until the family member has obtained a residence card.
I sent a query along these lines to the Dutch government's consular contact centre, who I have found very helpful in the past (and who most importantly of all are relatively quick to respond), and they advised:
'If I understand correctly, you want to know if your partner can stay longer than 90 days in the Schengen area on a short-stay (facilitating) Schengen visa.
I am afraid your boyfriend cannot stay within the Schengen area over 90 days on a facilitating visa. Please note that this type of visa is for short-stays only (maximum of 90 days within a period of 180 days). I would advise him to leave the Schengen area before the 90 day period has ended. If not, he is overstaying which may lead to a Schengen Information System alert.'
However, in light of all the above, what they have told me now strikes me as increasingly unlikely to be true (I am wondering if the consular contact centre staff member perhaps just doesn't quite appreciate the rights inferred on the family member by 2004/38/EC, with or without a visa OR residence card, and the implications that has for 'overstaying' actually being possible in this case).
In addition, numerous posts like this one have also highlighted that 2004/38/EC also states that family members who fail to comply with obligations to, for instance, register with the IND on time as in this case, should only result in 'proportionate and non-discriminatory sanctions'. (@phoog also points this out here.) The IND's own web site even states (albeit in connection with a slightly different topic, but still in the context of 'overstaying' or being in the Netherlands 'illegally'), that the application of bans on returning to the Netherlands (for instance) 'does not apply to EU/EEA citizens and their family members'.
(In spite of this, the person from the consular contact centre points out the risk of a Schengen Information System alert if my boyfriend 'overstays'.)
Therefore, even if my boyfriend does 'overstay' (that is, even if they do interpret it that way, which it doesn't look to me like they should) the original 90-day period by a few more days (or even longer) before finally being able to submit his application to the IND, it sounds like the worst he/we will get when applying is a slap on the wrist and perhaps a fine - or maybe, if we're lucky, not even that.
I think putting it all down in writing in such a long, long post (sorry!) has helped reassure me somewhat already - but I'm still somewhat torn as to what best to do, so I'd really appreciate any advice anyone might have, particularly if anyone has had experience of this or something similar in the past. Should I be concerned? Or am I worrying about nothing? What are your thoughts? Huge thanks in advance - and thanks for even reading this far!