UK CITIZEN/AUSTRALIAN WIFE WITH AUSTRALIAN PASSPORT

Question

Is it possible to travel Europe together for one year France, Germany, Italy, Spain , Portugal etc without requiring a visa for my wife?

Answer 1

It's looking like there will be a transition period until at least the end of 2020. The current UK government wants to eliminate the possibility of extending this period, but some in the EU have said that it may be unavoidable. The likelihood of going one way or the other will become more apparent later in the year.

During the transition period, free movement law will continue to apply. This means that until the transition period ends you will be able to spend as much time as you want in EU and Schengen countries (other than the UK), without having a visa for the Australian spouse, provided you comply with the requirements of the free movement directive.

That directive allows countries to impose a requirement that the non-EU spouse register by a certain time after entering the country, which may not be sooner than three months. So, as long as you don't spend more than three months in any country, you should be fine. In practice, because border crossings within the Schengen area are not recorded, it's very unlikely that you will be asked to prove that you've been in any given place for less than three months.

It's not particularly clear what will happen if you're in another EU country at the moment when the transition period ends. The provisions for this case generally concern people who have an established domicile, not longer-term visitors.

If you enter any such country after the end of the transition period, you'll almost certainly be subject to the 90/180 rule. Long-term travel in the Schengen area is somewhat problematic because there is no Schengen-wide long-term visa, but single countries won't give you a long-term visa if you're not planning to be in that country for a longer period. The best approach therefore seems to be to establish a base in a country such as France or Spain that has a visa appropriate for retirees, and travel to other EU or Schengen countries from there.

Answer 2

No, both would require some form of visa to stay a year.

Assuming that Brexit is effective to 01.02.2020, the 90/180 days rule of the Schengen Area will apply for both UK and Australian citizens.

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The assumption that the transition applies for everything is wrong.
It applies only to areas explicitly stated in the Withdrawal agreement.

In the area about Citizens rights, only the

• right to reside
• right as frontier workers

are meantioned in Article 10 (Personal Scope) of the Withdrawal Agreement.

Freedom of movement is defined in Articles 45 and 53-66 of the Treaty on the Functioning of the European Union

• 45: Freedom of movement for workers
• 53-63: Freedom of movement for goods, capital and persons

The Schengen Borders Code Article 2 defines right of free movement

• 5(a) Union Citizens and Family members
• 5(b) Agreements with 3rd countries (Article 10 (Personal Scope) of the Withdrawal Agreement)

So, when the term free movement is used:

during which free movement will still apply.

this should be understood as:

during which free movement for workers/persons, goods and capital will still apply.

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Once Union law ceases to apply to the United Kingdom (expected 01.02.2020 CET, Article 3 REGULATION (EU) 2019/592)
in Part 1 of Annex II, the following will be inserted:

“United Kingdom (excluding British nationals referred to in Part 3)”;

• thus the 90/180 days rule will apply for British citizens

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Visit Europe after Brexit - GOV.UK:

Entering other countries
Visas for short trips: you will not need one if you’re a tourist If you’re a tourist, you will not need a visa for short trips to EU countries, Iceland, Liechtenstein, Norway and Switzerland. You’ll be able to stay for up to 90 days in any 180-day period.

You may need a visa or permit to stay for longer, to work or study, or for business travel.

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Withdrawal Agreement and Political Declaration

• Published 25 November 2018

PART TWO
CITIZENS' RIGHTS
TITLE I
GENERAL PROVISIONS
...
ARTICLE 10
Personal scope 1. Without prejudice to Title III, this Part shall apply to the following persons:

(a) Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter;
(b) United Kingdom nationals who exercised their right to reside in a Member State in accordance with Union law before the end of the transition period and continue to reside there thereafter;
(c) Union citizens who exercised their right as frontier workers in the United Kingdom in accordance with Union law before the end of the transition period and continue to do so thereafter;
(d) United Kingdom nationals who exercised their right as frontier workers in one or more Member States in accordance with Union law before the end of the transition period and continue to do so thereafter;

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REGULATION (EU) 2019/592 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 10 April 2019
...
(2) Under Article 21 of the Treaty on the Functioning of the European Union (TFEU) and Directive 2004/38/EC of the European Parliament and of the Council ( 3 ), citizens of the Union have the right to move and reside freely within the territory of the Member States, including the right to enter the territory of the Member States without a visa or equivalent formalities.
(3) As a consequence of the United Kingdom's withdrawal from the Union, the Treaties and Directive 2004/38/EC, along with the right to enter the territory of the Member States without a visa or equivalent formalities, will cease to apply to nationals of the United Kingdom who are British citizens. It is therefore necessary to include the United Kingdom in one of the annexes to Regulation (EU) 2018/1806 of the European Parliament and of the Council ( 4 ). Annex I lists the third countries whose nationals are required to be in possession of a visa when crossing the external borders of the Member States and Annex II lists those third countries whose nationals are exempt from that requirement.
(15) This Regulation should enter into force on the day following that on which Union law ceases to apply to the United Kingdom.
...
Article 1
Regulation (EU) 2018/1806 is amended as follows:
...

(2) in Part 1 of Annex II, the following is inserted: ‘United Kingdom (excluding British nationals as referred to in Part 3)’;
(3) the title of Part 3 of Annex II is replaced by the following: ‘BRITISH NATIONALS WHO ARE NOT BRITISH CITIZENS’;

...
Article 2
Where the United Kingdom introduces a visa requirement for nationals of at least one Member State, the reciprocity mechanism provided for in Article 7 of Regulation (EU) 2018/1806 shall apply. The European Parliament, the Council, the Commission and the Member States shall act without delay in applying the reciprocity mechanism.
Article 3
This Regulation shall enter into force on the day following that on which Union law ceases to apply to the United Kingdom.

The term: Union law ceases to apply to the United Kingdom is understood as the date the United Kingdom leaves the European Union and not the end of the transition period.

The term is used in Brexit: What did you agree with the UK today?
(using the date before the last extension)

In case there is no extension of the Article 50 period, Union law ceases to apply to the UK on 31 October.

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Directive 2004/38/EC
on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States
...
Article 2 Definitions For the purposes of this Directive: 1. ‘Union citizen’ means any person having the nationality of a Member State;

...
CHAPTER II RIGHT OF EXIT AND ENTRY
...
Article 5 Right of entry
1. Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport.

No entry visa or equivalent formality may be imposed on Union citizens.
...
CHAPTER III RIGHT OF RESIDENCE
Article 6 Right of residence for up to three months
1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.

...
Article 7 Right of residence for more than three months 1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
(a) are workers or self-employed persons in the host Member State; or

...

Since Article 10 (Personal Scope) of the Withdrawal Agreement defines only

• right to reside and frontier workers

as those effected by the Citizens Rights portion of the Withdrawal Agreement

• Article 6 (short term) will no longer apply
  (visitors do not reside, they only visit)
• Article 7 (long term) will still apply
  (as stipulated in the Withdrawal Agreement)

starting 01.02.2020 when UK-Citizens no longer are EU-Citizens (Union Citizens).

The The status of UK citizens in the EU after Brexit - Leiden Law Blog (07.02.2019) commentary also deals with:

• Article 6 (Proposed visa-free travel)
• Article 7 (What about residence?)

and comes to the same conclusion.

After Brexit the UK will no longer be a Member State of the EU. Therefore Directive 2004/38/EC will no longer apply. Brexit will transform UK nationals from EU citizens to third-country nationals. Third-country nationals are treated differently to EU citizens, both in terms of entry into the Schengen area and residence in the EU for more than 90 days.
...
As EU citizens, UK nationals always derived the right of residence for a period longer than 90 days from Article 7 of Directive 2004/38/EC and, after legal residence for longer than 5 years, EU citizens even have the right of permanent residence in another Member State. However, that Directive only applies to EU citizens. After Brexit, UK nationals will be third-country nationals.

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Treaty on the Functioning of the European Union
PART TWO
NON-DISCRIMINATION AND CITIZENSHIP OF THE UNION
Article 20 (ex Article 17 TEC)
1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

(a) the right to move and reside freely within the territory of the Member States;
(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.

These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.
Article 21 (ex Article 18 TEC) 1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. 2. If action by the Union should prove necessary to attain this objective and the Treaties have not provided the necessary powers, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. 3. For the same purposes as those referred to in paragraph 1 and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament.

PART THREE: UNION POLICIES AND INTERNAL ACTIONS
TITLE IV: FREE MOVEMENT OF PERSONS, SERVICES AND CAPITAL
Article 45 (ex Article 39 TEC) 1. Freedom of movement for workers shall be secured within the Union. 2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.
4. The provisions of this Article shall not apply to employment in the public service.

...

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Schengen Borders Code
Article 2
Definitions
For the purposes of this Regulation the following definitions apply:
...
5. ‘persons enjoying the right of free movement under Union law’ mean

(a) Union citizens within the meaning of Article 20(1) TFEU, and third-country nationals who are members of the family of a Union citizen exercising his or her right to free movement to whom Directive 2004/38/EC of the European Parliament and of the Council ( 1 ) applies;
(b) third-country nationals and their family members, whatever their nationality, who, under agreements between the Union and its Member States, on the one hand, and those third countries, on the other hand, enjoy rights of free movement equivalent to those of Union citizens;

...

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Sources:

• Visit Europe after Brexit - GOV.UK
• Withdrawal Agreement and Political Declaration - GOV.UK
• REGULATION (EU) 2019/592 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 10 April 2019
  • REGULATION (EU) 2019/592 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 10 April 2019 (PDF)
• Directive 2004/38/EC
• Brexit: What did you agree with the UK today?
• The status of UK citizens in the EU after Brexit - Leiden Law Blog
• European Commission - Questions and Answers on the United Kingdom's withdrawal (24 January 2020)
• Treaty on the Functioning of the European Union
  • Article 20 - (Citizenship of the Union)
  • Article 21 (Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States)
    • Article 45 (Freedom of movement for workers)
• Schengen Borders Code - Article 2(5)