Getting married to an EU citizen in the EU on a tourist visa, and staying there

Question

I'm an EU citizen living in a different EU country (French citizen in Sweden) and my girlfriend is non-EU (Russian). We are not married and have not cohabited yet.

Can we do the following?

• She comes to Sweden on a tourist visa,
• we get married under Swedish law in less than 90 days
• without leaving Sweden, she applies for a residence card and then stays here happily ever after.

As far as I can tell, this should be allowed under EU law: I have the right of residence in Sweden (I am employed), therefore my spouse has the right of residence as well, no matter when we got married and how she entered the country (Metock case).

But I cannot find any trace online of other people having done that, so I'd like to know if it actually works. What I'm mostly worried about is the initial trip, as she will only have a tourist visa (and informal proofs of our relationship) but she will not intend to leave Schengen within 90 days, and we will not be married yet. So even if what we are planning to do is technically legal, I'm not sure the border police will like this explanation and let her in...

Note: I'm not asking about coronavirus-related restrictions, she already managed to travel to Sweden for a few weeks on her tourist visa in November 2020 under the exemption for not-yet-married partners.

Answer 1

Expanding a bit on my comments (even if it's not a full answer), I think the key question here is whether marrying in Sweden is possible under short-stay rules (legally and practically). If Swedish authorities frown upon it, expect documentation you cannot have as a non-resident, impose extra checks or delays for foreigners before the marriage or require a special marriage visa, this could create difficulties (both at the relevant office and at the border). On the other hand, if marrying is possible without restrictions then there is nothing wrong about entering to do just that.

In other situations, there are multiple examples of people entering the Schengen area under short-stay rules with no intent to leave. For example, Germany or the Netherlands allow citizens of a handful of countries like the US or Australia to enter without a visa and sort out their residence afterwards. This is not grounded in EU law and quite different from your girlfriend's situation but it's an example of a legitimate reason to enter without specific plans to depart.

This goes to show that EU law (Schengen entry rules) doesn't forbid it as long as national law also allows it. It's important to understand that it doesn't mean that EU law mandates it either. In other words, EU member states are still allowed to require that third country nationals secure a long-stay visa before entering with an eye towards seeking residence. As long as your future wife isn't covered by EU freedom of movement law (which she doesn't seem to be right now), it's up to the destination country (Sweden) to set the rules.

Once you are married things are different. Your wife would then be covered by the EU freedom of movement and Sweden has to facilitate entry and residence, including by issueing a residence card if she is already living with you. To show you how strong this right is, it would apply even if she overstayed beyond the short-stay limits (and, indeed, irrespective of when and how you married, as established by the Metock case). In that case, Sweden could impose a reasonable fine but not remove her or deny you the right to live together.