In which way is a D-visa in a Schengen country not taken into account for the 90/180 days rule?
Here is the situation. I'm Belgian but this is about my American boyfriend. He entered Schengen on July 16, 2018 - flew into Amsterdam airport where his passport got stamped, then took a train to Belgium, where he stayed. On October 5, he obtained a student visa for Spain (type D), valid until May 31st, 2019.
He hasn't left Schengen since he arrived on July 16 and mostly stayed in Belgium (a couple of days in Germany and Czech Republic in August, a week in Spain late September) and then in Spain starting early October until late December. He came to Belgium for the Christmas holidays and only returned to Spain for one day after that. He is currently in Belgium.
Two questions:
Can he legally stay in Belgium until May 31st with his Spanish visa? I found information on this only being possible for 90 days, but is this actually accurate? I don't understand how this would comply with the free travel between Schengen countries and the absence of border checks.
On June 1st, does he have another 90 days in Schengen? I read everywhere that days spent under a visa are not taken into account, but what exactly does this mean? Are they to be considered like days not spent in the Schengen zone? Or are they not counted at all? Implying in the latter case that on June 1st he would only have 9 days left to spend in Schengen? (because he spent 81 days in Schengen between arriving on July 16 and getting his Spanish visa on October 5)
Best Answer
Your boyfriend most definitely may not stay for most of the time in Belgium or use a Spanish visa to circumvent the limit on short stays in the Schengen area. Each country in the area retains the right to regulate long stays by non-EU citizens, a Spanish visa does not give you permission to live in Belgium. That much is clear, quite apart from the details of how days are counted and whether or not you're likely to be found out.
Some details on your specific questions:
There is no general “free travel” for non-EU citizens, the rules are more complicated than that. And the lack of border control only means it's somewhat easier to flout the rules. Schengen countries consider this risk acceptable (borders weren't strongly enforced before either) but it does not mean your boyfriend is allowed to stay as long as he wants in Belgium on a Spanish visa.
The rules are not crystal clear but not for the reason you suspect. The time spent in the Schengen area before he got a Spanish visa was long enough in the past that a new 90-day stay would be permitted. Those days need not concern him and if he had been in Spain since October, there would be no issue. The problem is that if you count all the time spent in Belgium (an interpretation a border guard is likely to take), he has already overstayed and certainly isn't allowed to stay even 9 days.
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What happens if you stay more than 90 days in Europe?
A non-EU national who stays in the Schengen area beyond 90 days (without a residence permit or long-stay visa) is illegally present, which can result in a re-entry ban to the Schengen area.How does the 90 day Schengen rule work?
What is the Schengen 90/180 rule? Under the terms of Schengen, non-EEA nationals cannot spend more than a total of 90 days within a total period of 180 days without a visa. Furthermore, once you've used up your quota of 90 days, you cannot return to Schengen until 90 more days have passed.How do you get around the 90 day rule Schengen?
Well, you can tour around different Schengen member states like France, Spain, or Germany and by the time you hit your 90-day limit, go and hop over to a non-Schengen European country like Croatia, UK, North Macedonia, or Turkey to wait until you hit the 181st day so that you can come back to the Schengen Area again.How can I stay in Europe after 90 days?
Ways To Stay In Europe For More Than 90 DaysTHE SCHENGEN ZONE TRAVEL EXPLAINED - DIGITAL NOMAD TV
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