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Old 23.03.2021, 12:30
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Spouse: EU/Schengen citizen working in other country - overstaying tourist?

Hi there,
We are a married Danish couple. I am a Swiss resident, B-permit, working and living in Switzerland. My spouse is employed 50% in Denmark and is currently a Danish resident.

When she is with me in Switzerland, she is here as a tourist. But as it has turned out, she would sometimes like to stay more than 90 days in a 180 days period, when her work back in Denmark allows for it.

I got in touch with the Cantonal immigration office, and they basically said that either she has to become a resident (with all that it implies: social insurance - not only health insurance but that the Danish employer will pay into the Swiss system, not staying here less than 6 months per year, etc), or come as a tourist. There is nothing in between. The lady at the office also said that since we are a married couple, she thinks that she should be here with me and that I should support here. The conversation kind of stagnated after that.

Obviously, she will not quit her job in Denmark to come and be supported by me in Switzerland. It's 2021, not 1970. Neither will the company she is working for have anything to do with Switzerland - they are afraid of tax related issues if they have Swiss residents as employees (I have heard this from other companies as well, and whether or not it is true does not matter for our situation).

So my main question is: any inputs how to deal with this in practice?

- Is there another permit or way to solve this - suggestions?
- What happens if you overstay the allowed tourist-period (given that they find out)?
- What happens in practice if she becomes a resident (B-permit) and then simply go and work in Denmark, without de-registering from Denmark?

Happy for inputs, it feels kind of hopeless to solve this properly!
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Old 23.03.2021, 12:50
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Re: Spouse: EU/Schengen citizen working in other country - overstaying tourist?

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- Is there another permit or way to solve this - suggestions?
- What happens if you overstay the allowed tourist-period (given that they find out)?
- What happens in practice if she becomes a resident (B-permit) and then simply go and work in Denmark, without de-registering from Denmark?

1 Not as far as I know

2 Depends on the nationality of your partner

3 Double taxation and double social security to figure out, who pays what where and how much (have a look at tax treaty agreements) and issues with the company, as you mentioned they do not agree to her working here?
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Old 23.03.2021, 12:55
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Re: Spouse: EU/Schengen citizen working in other country - overstaying tourist?

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1 Not as far as I know

2 Depends on the nationality of your partner

3 Double taxation and double social security to figure out, who pays what where and how much (have a look at tax treaty agreements) and issues with the company, as you mentioned they do not agree to her working here?
2. Danish
3. They are aware and agree - but they don't want to have Swiss residents employed (i.e. they will not pay into the Swiss social insurance system and let her pay Swiss taxes). For clarity: she is working in Denmark, not remotely, but she can concentrate her 50% employment to intense working periods.
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Old 23.03.2021, 12:57
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Re: Spouse: EU/Schengen citizen working in other country - overstaying tourist?

Is she staying more than 90 days in a row? Or doing several visits which will add up to more than 90 days? If its the second, honestly I don't think there is much chance of anyone ever finding out, there are not really any checks within the Schengen zone and I wouldn't worry. (in fact if it's the second I don't think it's an issue at all, the issue is only really if she wants to stay more than 90 days in a row).
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Old 23.03.2021, 13:02
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Re: Spouse: EU/Schengen citizen working in other country - overstaying tourist?

Ask me no questions and I’ll tell you no lies.

I don’t think there is anyway to regularise the situation. But on the other hand as long as she acts like a tourist it is unlikely anyone will come breaking down your front door to drag her off to the frontier.

Keeping a permanent residency in Denmark and records of time spent there will certainly act in your favour. Should anyone ask.

There are so many ‘sans-papiers’ in this country that the authorities tolerate.
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Old 23.03.2021, 13:04
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Re: Spouse: EU/Schengen citizen working in other country - overstaying tourist?

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Is she staying more than 90 days in a row? Or doing several visits which will add up to more than 90 days? If its the second, honestly I don't think there is much chance of anyone ever finding out, there are not really any checks within the Schengen zone and I wouldn't worry. (in fact if it's the second I don't think it's an issue at all, the issue is only really if she wants to stay more than 90 days in a row).
No, never more than 90 days in a row. Only more than 90 days within a 180 day period. When I have searched around at the forum for answers to this question, I have read the statement "ever heard of Swiss neighbours?".

We would also like to try to do things properly, it feels a bit weird that she will
have to break the rules, despite being self-supported and having no claims on Swiss society more than physically being here.
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Old 23.03.2021, 13:06
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Re: Spouse: EU/Schengen citizen working in other country - overstaying tourist?

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No, never more than 90 days in a row. Only more than 90 days within a 180 day period. When I have searched around at the forum for answers to this question, I have read the statement "ever heard of Swiss neighbours?".

We would also like to try to do things properly, it feels a bit weird that she will
have to break the rules, despite being self-supported and having no claims on Swiss society more than physically being here.
I think a Swiss residents permit is the only way to be here properly.
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Old 23.03.2021, 13:07
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Re: Spouse: EU/Schengen citizen working in other country - overstaying tourist?

Overstay can lead to a ten year ban from entering the country.

Tom
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Old 23.03.2021, 13:16
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Re: Spouse: EU/Schengen citizen working in other country - overstaying tourist?

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Overstay can lead to a ten year ban from entering the country.

Tom
Well, that kind of rules out that option then.

If we turn it around: what would happen if she becomes a Swiss resident (which she can become easily, if I understood the lady at the Cantonal office correctly) and "understays" her Swiss residency (i.e. spends less than 6 months here in a year)? She just loose her B-permit and that's that? Or can this also lead to long term problems?
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Old 23.03.2021, 13:19
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Re: Spouse: EU/Schengen citizen working in other country - overstaying tourist?

And the Voters in GE, in March, approved 50m in funding (similar to Covid assistance) for ‘sans papiers’.

I seriously doubt that an EU national, who never stays more than 90 days at a time, would ever raise interest of the authorities.

You are meeting the intent of the regulations, if not the letter. Even with Swiss neighbours you should be OK
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Old 23.03.2021, 13:22
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Re: Spouse: EU/Schengen citizen working in other country - overstaying tourist?

I have searched and can not find any rule about Schengen citizens being limited to 90 in 180 days in other Schengen countries..... there just is no limit as far as I can see. Yes I've found the rule that if you stay for more than 90 days in one go in one country, you must register as resident... but i can't see anything that would stop you having a 2 week holiday in Switzerland every month for example. Happy (well not happy) to be proved wrong if someone can post a link.
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Old 23.03.2021, 13:32
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Re: Spouse: EU/Schengen citizen working in other country - overstaying tourist?

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I have searched and can not find any rule about Schengen citizens being limited to 90 in 180 days in other Schengen countries..... there just is no limit as far as I can see. Yes I've found the rule that if you stay for more than 90 days in one go in one country, you must register as resident... but i can't see anything that would stop you having a 2 week holiday in Switzerland every month for example. Happy (well not happy) to be proved wrong if someone can post a link.
Wow, okay, that would of course be great. I did some googling: I may have wrongly interpreted "Holders [of a Schengen visa] are permitted to stay for a maximum of 90 days in any 180-day period" as applying also to Schengen citizens. I can't find any information about Schengen citizens.

What's clear is that it is max 90 days per go, and as said, this is no problem.
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Old 23.03.2021, 13:36
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Re: Spouse: EU/Schengen citizen working in other country - overstaying tourist?

@OP,


I think the only way for her to be legal here more than 90 days per year (in one go) is to ask for a residence permit, which will be tied to yours.

As for her working in Denmark you'll probably have to fill in two tax forms (for each country). Or if it's taxed at source in DK only here in CH.
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Old 23.03.2021, 14:00
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Re: Spouse: EU/Schengen citizen working in other country - overstaying tourist?

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I have searched and can not find any rule about Schengen citizens being limited to 90 in 180 days in other Schengen countries..... there just is no limit as far as I can see. Yes I've found the rule that if you stay for more than 90 days in one go in one country, you must register as resident... but i can't see anything that would stop you having a 2 week holiday in Switzerland every month for example. Happy (well not happy) to be proved wrong if someone can post a link.
Found information at the Danish embassy in Bern: "as an EU citizen, you have the right to stay in Switzerland for up to 90 days within a six month period. Thereafter, you need a residence permit. This is case also if you stay more than 90 days within a six month period".
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Old 23.03.2021, 14:05
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Re: Spouse: EU/Schengen citizen working in other country - overstaying tourist?

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@OP,


I think the only way for her to be legal here more than 90 days per year (in one go) is to ask for a residence permit, which will be tied to yours.

As for her working in Denmark you'll probably have to fill in two tax forms (for each country). Or if it's taxed at source in DK only here in CH.
Yes, this is probably the case. However, one problem with becoming a resident (as the lady at the Cantonal office clearly pointed out) is that she will then have to stay at least 6 months per year in Switzerland. This might not be the case.

Legally, she isn't really a Swiss resident. She does not live here. Her home and her work is in Denmark. But during some 180 day periods, she might want to spend more than 90 days in Switzerland.

Concrete example is during summer: she will not have to work in Denmark from May through August and would like to spend the time here. This does not mean she is moving here - apartment and work will still be in Denmark.

I have kind of come to realize that this is simply not possible given how the system is set up. Maybe we'll just have to accept that.
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Old 23.03.2021, 14:16
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Re: Spouse: EU/Schengen citizen working in other country - overstaying tourist?

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I have searched and can not find any rule about Schengen citizens being limited to 90 in 180 days in other Schengen countries..... there just is no limit as far as I can see. Yes I've found the rule that if you stay for more than 90 days in one go in one country, you must register as resident... but i can't see anything that would stop you having a 2 week holiday in Switzerland every month for example. Happy (well not happy) to be proved wrong if someone can post a link.
Here it is clearly written:
https://www.sem.admin.ch/sem/en/home...-schengen.html
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Old 23.03.2021, 14:29
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Re: Spouse: EU/Schengen citizen working in other country - overstaying tourist?

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It’s not clearly written though is it? “The entry into Switzerland or a country within the Schengen area” I read that as applying to people coming from outside Schengen... not those residing within it. Nowhere does it mention Schengen citizens.
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Old 23.03.2021, 14:31
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Re: Spouse: EU/Schengen citizen working in other country - overstaying tourist?

If you look at the short stay calculator it says “ This calculator is used for third-state nationals within the Schengen Area, regardless of their visa obligation status.” https://www.sem.admin.ch/sem/en/home...tsrechner.html
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Old 23.03.2021, 14:44
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Re: Spouse: EU/Schengen citizen working in other country - overstaying tourist?

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If you look at the short stay calculator it says “ This calculator is used for third-state nationals within the Schengen Area, regardless of their visa obligation status.” https://www.sem.admin.ch/sem/en/home...tsrechner.html
Yes, true, I also realized this but couldn't remove my post

But it is reasonable to expect that the statement at the Danish embassy's website applies to Danish citizens, and hence Schengen citizens...
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Old 23.03.2021, 15:06
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Re: Spouse: EU/Schengen citizen working in other country - overstaying tourist?

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Yes, true, I also realized this but couldn't remove my post

But it is reasonable to expect that the statement at the Danish embassy's website applies to Danish citizens, and hence Schengen citizens...
Have you checked what the Swiss embassy in Copenhagen says?
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