Schengen 90/180 day rule with 4 day overstay
I believe some of the immigration officers are mis-using the 90/180 day law to reject my wife's visa application for a family immigration application. They said she had no more days left when we delivered the application on the 22 March 2019 - 22/03/2019
However, they were basing it somehow on the fact that she had overstayed 4 days earlier sometime in January. However, when she left the immigration control in the country that time. They only told her she had to be careful because there could be consequences, but that they will not take measures this time, because it's minor.
Now, the lady we delivered our application to confirmed she had stayed in Schengen, for 88 days, before delivering it on the 22.03.2019 - which was correct with my calculation. However 7 months later we got the refusal of visa based on the evaluation that my wife was in the country illegally (out of days) when we delivered the application on the 22.03.2019 - for me it seemed like the lady who had done this evaluation is still using some of the old rules. Before the change in October 2013 (Oct 18th) 90 days in any 180 day period, which means it's a constant moving 180 day.
The refusal says ''XXX person overstayed on the period between 04-01-2019 (4th january) and 08-01-2019, that means she stayed illegally when she delivered her documents. But how are those in January, relevant to her being there ilegally on the 22th of March? We counted 88 days of stay from 22th of March and to 20th of September (180 days) - same as the police officer.
Am I wrong that a legal stay is calculated from the date you wish to travel to the Schengen country, and then subtract 180 and figure out your stays in between those two dates. If that ends on say example, 84, that means you can legally stay in Schengen for 6 days. (Or more considering the period is moving again while the person stays there)
So when I bought her ticket to come back again on 08.03.2019 - I needed to count back 180 days(from 08.03.2019), and see the days she had been there. (Taking the overstay in the calculation of course) - and I came to the result that she had 19 days left. (71 stays in schengen from period 08.03.19 - 09.09.19) So it was a legal travel and stay.
Considering there was no ban, or any consequence of her overstay. Is there any law or any paragraph in the Schengen agreement, that states you are unable to re-enter the Schengen for X amount of day because you overstayed? I'm certain that's up to the member states to enforce themselves.
TLDR; If they never gave her a ban, or any other message. Would calculating a legal stay on the 22.03.19 - be as uncomplicated as counting 22.03.19 - 180 days = 09.09.2018 Then count days of stay in between those 2 dates, to know how many she has left to stay in Schengen?
Summary of travel dates from comments:
- Travel 1: 24.08.2018 - 01.10.2018
- Travel 2: 29.10.2018 - 19.11.2018
- Travel 3: 22.12.2018 - 26.01.2019
- Travel 4: 08.03.2019 - 22.03.2019
Best Answer
You seem to think that visas are a right and that they have to grant you one unless there is a very specific rule that says they shouldn’t.
This is not the case. The applicant needs to establish that they will respect the rules of their visa (no work, no relying on the state, leaving in time).
By overstaying, one shows they do not respect the rules, which means they are very unlikely to grant any further visas. This will probably last at least as long as the information is available.
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What happens if you overstay Schengen 90 days?
The Schengen law states that you can't stay in the Area for more than 90 days. If you do, you're subject to a fine and possibly deportation and being banned from re-entering the Schengen Area. How that rule is enforced, though, varies greatly from one country to another.When can I return to Schengen after 90 days?
Furthermore, once you've used up your quota of 90 days, you cannot return to Schengen until 90 more days have passed. For example, if you enter Spain on January 1st and spend 90 days in the country until June 30th, you cannot return to Spain until at least the end of September.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 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.✈️ The 90 180 DAY RULE (Everything You Need to Know when Traveling to the Schengen Area)
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Answer 2
However, they were basing it somehow on the fact that she had overstayed 4 days earlier sometime in January. However, when she left the immigration control in the country that time. They only told her she had to be careful because there could be consequences, but that they will not take measures this time, because it's minor.
So there was an overstay in January, which was labeled "minor" by officials and did not result in a fine at the time?
There is your explanation. The previous overstay is on her record.
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