Case Study - Alleged unfair application of the Schengen stay limitations

Case Study - Alleged unfair application of the Schengen stay limitations

Published August 20, 2026

The complaint

A German citizen lodged a complaint regarding the application of the Schengen stay limitations imposed by the Maltese Immigration Police on his British spouse despite their joint travel to Malta and his status as a German and European Union citizen residing in the United Kingdom with his spouse. 

Facts and circumstances

The complaint referred to guidance given to him by the Europe Direct Contact Centre which advised that the so called 90-day within any 180-day Schengen stay limitation did not apply to family members of EU citizens when these travel together in a Schengen country other than that of the EU citizen’s nationality. The Immigration Police allegedly did not accept this standpoint.

The Immigration Police, following the Ombudsman’s enquiries, explained that UK nationals are considered third country nationals and thus subject to Schengen entry and exit rules including the 90/180-day limitation.

The Police explained that complainant’s wife could stay in Malta without a visa only if she did not exceed this period. Should she exceed this period she would require a visa unless she held a valid residence card as a family member of an EU citizen. The Police also noted the possibility of her applying for a residence card under Article 10 of Directive 2004/38/EC which would exempt her from visa requirements when accompanying the EU citizen, that is, her husband in this case.

Conclusion

The Ombudsman concluded that the Maltese Immigration Police acted correctly in advising of the consequences of exceeding the 90-day visa waiver stay limitation. UK nationals who are family members of EU citizens have the right to reside in another Member State for up to three months without formalities other than holding a valid passport or identity card, but this is subject to the requirement of an entry visa unless a valid residence card is held.