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Last year, I received a three-year EU Entry ban as a consequence of an overstay. At that time, my EU citizen wife and I were not yet married. However, we have since married (about 11 months ago), and we are now parents of a child who holds EU citizenship (born in the EU).

The marriage was officially registered and validated in her home EU country, so we have her home country marriage certificate, and my child's EU birth certificate identifies me as the father, which we also have.

Despite my efforts to have the ban revoked and presenting new evidence through an appeal, I regrettably have not achieved any success.

I don't need a visa for the EU. I am allowed to stay up to 90 days.

Before you judge me, it is important to understand that there were compelling reasons behind the overstay.

I am aware of directives such as 2004/38/EC, which provide provisions for entry into Schengen countries for family members of EU citizens. Additionally, the Schengen Border Codes directive 2016/399, which governs entry and exit procedures within the Schengen area, under Article 3 (b), specifically states that it does not impede the freedom of movement granted by 2004/38/EC.

Given this information, I humbly inquire whether my wife, our son, and I could possibly visit my father, who currently resides legally in Belgium, based on the provisions outlined in 2004/38/EC, which would be applicable to us if my wife and son were to travel to Belgium from their home EU country, together with me, allowing me to enter despite this ban.

I would be immensely grateful for any insights or guidance you may provide on this matter. This situation arose entirely due to force majeure.

My idea was to fly from outside the Schengen zone directly into Belgium, together with them.

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  • Is your wife Belgian?
    – phoog
    Jul 27, 2023 at 19:14
  • She isn't Belgian, from Finland.
    – Ralph
    Jul 27, 2023 at 19:20
  • Im encountering the same problem at the momment. I also overstayed EU, My fiance is EU citizen, we have to go to back to my home country together but Im afraid of a ban when exiting. Do you mind sharing the country that issued the ban? We are getting married next year but trying to speed things up and hopefully it can be end of this year, but when I leave EU next month ,we wont be legally married yet. Im worried about re-entering later. Hope you reply thanks so much
    – Rina
    Feb 15 at 9:29

1 Answer 1

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Despite my efforts to have the ban revoked and presenting new evidence through an appeal, I regrettably have not achieved any success.

The ban is probably supposed to stay in place so it can continue to apply to you if you attempt to travel to the Schengen area without your wife. It just doesn't apply to you when you travel with your wife.

(Or rather it very likely does not apply to you when you travel with her, but that depends on the specifics. If the ban is on grounds of public safety, public health, or public policy, then it can be applied to you when you travel under free movement law. From what you say that seems unlikely.)

The tricky part is going to be the administrative hurdle. If you cross the Schengen border without your wife then you may have some difficulty establishing that you are traveling to join her. More worryingly, there is a common belief that free movement rights accrue only to third-country nationals who reside in the EU. If your border guard suffers from that misconception, it could be troublesome. It would be easier, in any event, if you can arrange to have your wife travel with you and enter the Schengen area with you.

There is another wrinkle here:

if my wife and son were to travel to Belgium from their home EU country, together with me...

Since Finland and Belgium are both in the Schengen area, if you travel to Finland to join your wife then you will be attempting to invoke the free movement directive to get into Finland to join your Finnish wife. The free movement directive normally does not apply to an EU citizen's family members with respect to the EU citizen's own country of citizenship. Thus, if you show up at the Finnish passport control desk, and the officer says, "oh, there's a ban," and you say "directive 2004/38/EC," and the officer sees that your wife is Finnish, it's entirely possible that the officer will refuse to let you in because of your ban. A safer approach would be ...

to fly from outside the Schengen zone directly into Belgium, together with them.


Some further relevant information, from the Practical Handbook for Border Guards (Schengen Handbook) (PDF) (page numbers refer to the version of November 2022):

2.1.2. In the case of third-country nationals who are family members of EU, EEA and CH citizens, they have the right of residence in a Member State for a period of up to three months if they are in possession of a valid passport and are accompanying or joining the EU, EEA or CH citizen, without any limitation to 90 days in a 180-day period.

(Page 20)

2.2. A hit in the SIS or in other relevant databases is not in itself a sufficient ground to refuse entry to any persons enjoying the right of free movement under Union law (see point 8.3. of this Section on the rules applying to the refusal of entry of beneficiaries of the right of free movement under Union law).

(Page 21)

8.3. Persons enjoying the right of free movement under Union law may only be refused entry on grounds of public policy or public security as referred to under Directive 2004/38/EC, i.e. when their personal conduct represents a genuine, present, and sufficiently serious threat affecting one of the fundamental interests of society.

8.3.1. Consequently, even an alert in the SIS cannot be considered, in itself, as a sufficient ground for automatically refusing the entry of these persons; in such a case, the border guard must always make a thorough assessment of the situation and assess it in the light of the principles referred to in point 8.3. of this Section. If the alert has been entered by another Schengen State, the border guard must take immediate contact, via the SIRENE Bureau network, by contacting the national SIRENE Bureau, with the responsible authorities of the Schengen State that has entered the alert. The latter must check, in particular, the reason(s) why the alert was inserted and whether these reasons are still valid. This information must be transmitted without any delay to the authorities of the requesting Schengen State. The border guards may, by any other available means, and where applicable, contact authorities of another Schengen State which issued the residence card to verify its validity.

The alert on refusal of entry will contain some information that might help to determine the reasons why the alert was enterred. The alert will contain information on whether the decision for refusal of entry and stay is based on:

(1) a previous conviction as referred to in Article 24(2), point (a), of Regulation 2018/1861 ; or

(2) a serious security threat as referred to in Article 24(2), point (b), of Regulation 2018/1861; or

(3) circumvention of Union or national law on entry and stay as referred to in Article 24(2), point (c), of Regulation 2018/1861; or

(4) an entry ban as referred to in Article 24(1), point (b), of Regulation 2018/1861 ; or

(5) a restrictive measure referred to in Article 25 of Regulation 2018/1861.

In addition, it is possible to indicate in the alert itself the type of offence, when refusal of entry alerts are related criminal offences. It is also possible for the issuing Schengen State to indicate in the alert whether the person concerned is a family member of a citizen of the Union or other person who is a beneficiary of the right of free movement.

However, the issuing Schengen State should still be always consulted in case when there is a hit on third-country national who is a beneficiary of a right of free movement. On the basis of the information received, the competent authorities will make an assessment based on the criteria explained in point 8.3 of this Section. On that basis, the border guard will admit or refuse entry to the person in question.

If it is not possible to obtain the information within a reasonable delay, the person in question must be allowed to enter the territory. In this case, the border guards, as well as the other competent national authorities, can make the necessary verifications after the person entered the territory and take, where necessary, the appropriate measures afterwards.

The action listed in Point 8.3.1 of this Section is without prejudice to other actions to be performed as a consequence of a SIS alert, such as the arrest of the person, the adoption of protection measures, information on lost and stolen documents etc. In case such consultation reveals a SIS alert on the need to seize a document, it has to be seized immediately and the SIRENE Bureau must be contacted for further information without any delay.

(Pages 85-86)

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  • Thank you for your response. My ban is only due to my overstay. My plan was to have my wife fly to London and meet me there. From there, we would then take a flight to Belgium together, for us to exercise the rights under 2004/38/EC. Am I right I'd not be detained or risking that? In case the border guard is not aware of the directive, I could print out and highlight all the relevant law points for reference? With regards to Finland, I was aware Finland is not a viable option for our plans, and my wife and I would not be exercising our rights under directive 2004/38/EC.
    – Ralph
    Jul 28, 2023 at 0:42
  • Forgive my lack of knowledge, but I'm curious to know how you are so well-informed about these details. Do you have a law degree or a particular expertise in this area? I ask out of curiosity because I want to ensure that I won't be at a high risk of being detained or facing any legal complications. I hope you don't mind me asking, and thank you.
    – Ralph
    Jul 28, 2023 at 0:45
  • @Ralph "In case the border guard is not aware of the directive": they surely all are, but having a printout or a summary of the relevant points will help you when you are presenting your argument, if you indeed have to do so. My knowledge on these matters began with some research I did for my parents, an EU/non-EU couple who were spending 4 months a year in France for some time. Subsequent to that I've been following the topic fairly closely for the last 10 years or so. I am not a lawyer. If you want legal advice you should consult one.
    – phoog
    Jul 30, 2023 at 10:02
  • @Ralph a lawyer will need to know a few things you haven't told us, such as the country that issued your ban and the specific legislative provision under which you were banned. A lawyer may also have more practical knowledge concerning the administrative details around your situation, namely entering the Schengen area under 2004/38/EC as the subject of a ban for a prior overstay that was not connected with 2004/38/EC. You might spend a few hundred euros on a lawyer, but the peace of mind might be worth it, and you'll have a clear course of action if your entry is challenged.
    – phoog
    Jul 30, 2023 at 10:03
  • @Ralph I've added some relevant portions from the Schengen border guards' handbook. This may help you decide whether engaging a lawyer is justified. It also suggests that you may be subject to some delay when you enter while the border guard checks with the country that issued the ban.
    – phoog
    Jul 30, 2023 at 10:26

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