# Australian overstayed in the Czech Republic.



## pristuthus (Aug 9, 2018)

Hello. I've posted this elsewhere and I'm just combining my initial post and my replies, so I apologize if I repeat some things or if it's hard to follow.

I've overstayed my Schengen visa in the Czech Republic by about six months now. My wife and daughter, who are both British, are also here with me. I'm here because my wife kidnapped our daughter to be with someone she met while she was in Prague for work. Things didn't work out for her. She lost her job, and she was close to being homeless. I sent her all the money I could, which wasn't much, but in return I wanted us to move to a different country because I'd never get an English-speaking role in the Czech Republic. She agreed. I took a flight over to be a stay-at-hotel dad for three months so she could return to work and save up for our move. Not having to pay for childcare, she quickly got a job and her situation improved.

I had our flights booked to leave Prague weeks in advance, but the day before we were meant to leave, the day before my Schengen visa expired, my wife told me she changed her mind and didn't want to leave after all. Panicked and desperate, I went to the Ministry of the Interior with a poorly prepared application anyway and, as expected, it was refused on the spot. One day wasn't enough time to gather all of the necessary supporting documents. Had my wife not accepted my condition, I would have applied for a residence permit way ahead of time. I have no excuses, I was stupid to trust a cheater and a kidnapper.

I had nowhere to go, and the hotel stay drained my bank account. Since I've been here, my wife has been supporting me because I can't work. I've been trying to convince my wife that we're not gonna be able to live normal lives here due to my illegal status, but she has a friend telling her that I can become legal here. He said "they take their kids very seriously here" and that as long as our daughter is in school, I can get legalized.

When my application for a residence permit was refused, the advisor told me to take the next flight out to London before midnight. He knew I had a wife and daughter here, so I don't know why he would advise me to leave in a hurry if I'd be able to stay on the grounds of simply having a child here. I'm not as optimistic as my wife and her friend. Do I have any rights after overstaying my Schengen visa? 

I can't afford to see a lawyer, so I'm hoping there are some experts on the topic here or people who have some experience with this in any EU country. Where can I go from here? Any useful advice or information would be appreciated. Thank you to anyone who took the time to read this.


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## Bevdeforges (Nov 16, 2007)

There is an EU regulation that says that you have the right to a residence permit if you have come to an EU country to join your wife/spouse when she is legally residing there and "exercising her EU rights." 

This is the europa.eu page that discusses that: https://europa.eu/youreurope/citize...hts/non-eu-wife-husband-children/index_en.htm

The Czech Republic may or may not have a way around the fact that you've already overstayed your initial visa - but it's up to your EU (at least for the next several months) to support your application for a residence permit as her spouse.
Cheers,
Bev


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## pristuthus (Aug 9, 2018)

Thanks, Bev. Do you know of any instances of an EU country granting a residence permit to someone who overstayed their Schengen visa with a child residing there, or any instances where an overstayer was granted a permit at all? I can't post links, but I found a website that says:



> Aliens Act Amendment – what should you do before it comes into force on August 15th, 2017?
> 
> [...]
> 
> Under the new rules, if you are a non-EU family member of a Czech citizen and you are staying in the Czech Republic currently without a residence permit or on an exit order, you will not be able to apply for an application for a temporary residence in the Czech Republic anymore.. Instead, you will be obliged to travel outside of the country and apply for a Schengen visa via Embassy to enter the Czech Republic again. If this is your case, apply for the temporary residence now!


My wife isn't a Czech citizen and, also considering my illegal status, I'm wondering if that still applies to us? I'm not clear on whether "citizen" and "EU exercising treaty rights" are interchangable, and whether EU laws override national laws. It doesn't mention anything about having a child, so I'll read through the related documents today.

On the link you provided, it says:



> If you are working in another EU country, as an employee, self-employed or on a posting, your non-EU spouse, dependent children and grandchildren can stay there with you *without having to meet any other conditions*.


Does that include conditions such as successfully obtaining a visa? I know the advisor at the immigration office told me to fly out despite knowing I have a wife and child here, but I can't be certain just from that. He could've been trying to save himself from doing extra work or maybe they just don't like immigrants here.



> The Czech Republic may or may not have a way around the fact that you've already overstayed your initial visa - but it's up to your EU (at least for the next several months) to support your application for a residence permit as her spouse.


Would CZ still consider any applications I submit at this point? I feel as though I'd be immediately detained and deported if I walked into an immigration office. Is the residence permit through EU spouse still open to illegals?


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## pristuthus (Aug 9, 2018)

I don't know how to edit my last post, so I apologize for double posting. I found a thread on immigrationboards.com.



> Hi everyone,
> 
> I'm British married to non-eu.
> 
> ...


The first reply:



> Hi!
> 
> If you're married and have appropriate marriage certificate there should be no problem at all.
> She's eligible to stay with you for any time, no matter if her Schengen visa expired.
> ...


Is this accurate? Am I not actually illegal here since my wife is working?


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## Bevdeforges (Nov 16, 2007)

The problem here is that immigration law and procedure is something for the national governments to control - not the EU. The individual governments are obliged to provide a simplified process for non-EU national family members to join their EU spouses in an EU country (other than the spouse's country of origin) - but the EU does not say just how "simplified" that process has to be.

Basically, I think the guy who told you to leave the Schengen area and then return was probably legitimately trying to help you out. Normally, to "join your EU spouse" you must register for a residence permit within the first 2 to 3 months of entering the country. If you leave now and return, you'll get a new stamp in your passport and, for purposes of registering in the Czech Republic, you can just show them that you have "just" arrived. You'll have to provide all the usual sorts of identifying documents, proof of your marriage and your wife may need to show that she is legally settled in the country (job, residence, etc.) but it should go pretty smoothly.

If your wife were a Czech citizen, you'd have to meet all the usual requirements for a "spouse visa" and yes, they would have the right to reject your application for any number of reasons. As long as she is a citizen of any other EU country, you can use the "simplified process" that the EU talks about. But obviously, you should get on it, as the closer it gets to Brexit, the more likely there will be questions and delays if she's a UK national.
Cheers,
Bev


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## pristuthus (Aug 9, 2018)

Thanks for your help. I have some more questions and I hope I don't come across as being stubborn or thinking I know better. I just want to make sure I don't end up being separated from my daughter for another year.

It might help if you can see the thread, too. If you Google "Residence card for non eu spouse Overstay", it's the first result. The replies are generally positive, but obviously I'd value your knowledge on the issue. There's mention of a Directive 2004/38/EC, is that something you're familiar with? The original document is a little confusing for me, so I found it summarized on Wikipedia.



> The right of free movement is granted automatically when the requirements are fulfilled, and it is not subject to an administrative act. However, member states may require the EEA citizen and family members to register with the relevant authorities.


Basically what you said. This user goes over that too, but he says the punishment for a violation is just a fine.



> A family member of a eu citizen can not technically overstay a visa if accompany the eu citizen.
> Due to the directive the family member need only a entry visa. The stay itself is covered from the directive.
> It is easier to prove the right of stay with a valid visa but that is it.
> If a member state want a application for a residence card for a stay longer 3 month to fail to do that can only be sanctioned with a small fine.


Say the residence permit is mandatory in CZ, is that information correct or can I be issued a more severe punishment (an entry ban, large fine, detainment, mark in my record, etc.) if I get caught or try to leave the Schengen zone?


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## Bevdeforges (Nov 16, 2007)

pristuthus said:


> Say the residence permit is mandatory in CZ, is that information correct or can I be issued a more severe punishment (an entry ban, large fine, detainment, mark in my record, etc.) if I get caught or try to leave the Schengen zone?


Unfortunately I have no idea what the rules are for this in CZ. In France (where I am) I know of cases where the local prefecture will NOT issue a residence permit to a non-EU family member if they have not applied for it within the first 3 months of the stay. No real fine or penalty - but they simply won't issue the card. The only real option is to leave the Schengen area (fortunately the UK is handy in this regard) and re-enter with a new entry stamp then go immediately to the proper authority and request your residence permit as a "new arrival."

It's also pretty rare that they check your passport all that carefully on exit from the country to see when you entered (as long as you're headed for a non-Schengen country). Again, I don't know how exit procedures go in the Czech Republic airports.

You'll have to judge for yourself what the folks in that other forum are advising you to do. Maybe you could ask your wife to ask about the penalties for applying for a residence permit on a spent visa and see what they tell her. But at this point I think your best option is to leave Schengen for a few weeks. You may have to feign innocence at the airport on departure if they do note the absence of an exit stamp. Or find another way to leave the Schengen Zone - bus, train or car. There are very few border checks between Schengen states these days.
Cheers,
Bev


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## pristuthus (Aug 9, 2018)

I asked my wife to speak to the police for me, but I don't know if she did. Whenever I asked her for an update, she told me she didn't have time to make an appointment. That went on for a month, so I stopped asking months ago. I didn't have much luck on the other forum, but searching for "immigration forums" turns up immigrationboards, so I might try there next. I think I'll try seeking free legal counseling, is that advisable?

I've visited Prague once before and they pulled me aside at passport control on my way out. They thought I overstayed, but I was free to go after a short wait. I'm not too keen on exiting from here, but my financial situation doesn't afford me much flexibility. Do you have any advice on where I should exit from if/when I do leave? If I can convince my wife to stick to our agreement, would it be safe for us to fly to Ireland and try to obtain a residence permit there? I had Ireland in mind as a compromise when I was thinking English-speaking country. With regards to penalties, is it generally safer to fly out from the country where you got your entry stamp or another country? Thanks a lot, really.


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## Bevdeforges (Nov 16, 2007)

The big risk on relocating with the family to another EU country is that quite a few countries require that the EU national partner be "established" in that country before they can request a residence permit for the non-EU spouse. What that generally means is that they need to have a place to live and some means of financial support - usually a job or pension of some sort.

If they are that strict about control at the airports there, you may do better to consider traveling by road or rail.

Sorry I can't be of more help than that, but I have absolutely no experience with the Czech Republic. 
Cheers,
Bev


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