Schengen Convention rules - will I be kicked out?

Travel Forums Europe Schengen Convention rules - will I be kicked out?

1. Posted by malcolm2 (Budding Member 2 posts) 11y Star this if you like it!

I have seen a few replies to questions relating to entry/exit of the Schengen Area but they tend to be specific and relate to a person’s unique situation.

My question is a more general question relating to my travel plans in Europe and I was wondering if anyone can provide me with some advise.

I am an Australian, travelling around Europe as part of a 1 year holiday. I am not working in any country.

I started in Italy and stayed for 3 months (89 days, I am now in England for 2 months. I plan to travel to France (after England) for 3 months (89 days) then back to England for 1 month then back to Italy for 1 month. I will have airline tickets showing return segments. I am travelling via secondary airports in Europe.

From my understanding you have be out of the Schengen Area for 3 months (90 days) before you can go back into the Schengen Area. If this is the case then, technically, I have only been out of the Schengen Area (in England) for 2 months (60 days) before going to France. The Italian immigration stamped my passport on entry and exit so the French immigration (if they look) will see my exit date from Italy (and subsequently the Schengen Area) was less than 90 days. The French could/will? turn me away at the airport.

If the French let me stay for the 3 months then I go back to England for 1 month then go to Italy would/will the Italians stop entry as I have only been away from France for 1 month. (Assuming the French stamp my passport on entry/exit and the Italian immigration see these stamps).

I have seen a posting where someone explains that certain countries have computer data bases for travelers only ‘blacklisted’ for that country and these data bases are not linked between countries let alone a Europe wide computer linked data base for ‘normal’ travelers. So electronic passports – such as mine would not register in any countries data bases as being a ‘banned’ person.

Would the Immigration Officials be strictly ‘by the book’ in my case if they read the date stamps from other countries, even though I have return tickets, or will it be at the whim of the Official on the day?

Thoughts, comments, experiences would be appreciated.

2. Posted by t_maia (Travel Guru 3290 posts) 11y Star this if you like it!

Strictly by the book you are in violation of the Schengen rules. (As you already realised.)

Whether you will get into the Schengen area when you go to France and Italy from the UK by plane is essentially up to your luck. You could get turned away in both instaces, but they could also wave you through. The Italians can be quite anal retentive about visa violations, so you definitely run the chance of getting fined at the Italian border when you try to leave.

The absolutely best way would be to change your travel plans around that you stay for 3 months outside of Schengen before you go to France and then another 3 months before you go to Italy. Or skip the trip to Italy alltogether and go to a non-Schengen country like Poland, the Czech Republic or Switzerland.

Alternatively you could try to get a 6-months residency permit for France, which will also be valid for your one month in Italy. (So called D+C Schengen visa.) Contact the French embassy in London about the procedure for doing this. They will require proof that you have enough funds to support yourself. Tell them your travel plans, show them your tickets, explain about the Schengen problem you encountered and they should be able to help you. (If the French are uncooperative, try the Italians. But chances are high they will tell you to go back to the French.)

If all things break, "loose" your passport and apply with a fotocopy of the data page for a new one at the Australian embassy. It gets rid of embarrassing proof. Downside is that if you are suspected of getting a new passport intentionally, it will be up to you to proove that you did not violate the Schengen rules. (Which will be very hard for you to do.) In this case you will be looking at a very steep fine, not only from the Schengen officials but also from your own country for passport fraud.

Hope I helped.

[ Edit: Edited on Jan 9, 2007, at 12:43 PM by t_maia ]

3. Posted by malcolm2 (Budding Member 2 posts) 11y Star this if you like it!

Thanks for the advice t-maia. I think I'll just play it safe and not bother with the Schengen countries given it's only a couple of weeks and I have unlimited time and can amend my schedule as required. The 'lost passport' seems a bit of a hassle and I know that if you 'loose' your passport too many times the authorities might just not give you a new one! I will look at the French/Italian visas at a later date to give me more time.
Cheers M2

4. Posted by t_maia (Travel Guru 3290 posts) 11y Star this if you like it!

As for the visa - the process takes a few weeks, so don't wait too long.

Also if you don't care where you get your Schengen D+C visa from, you could go to Germany and apply for a residency permit there directly. This is sometimes a lot less hassle than going through the embassies.

The process: Take your passport and proof of sufficient funds with you to the local "Ausländerbehörde" and tell them you would like to stay in Germany for one year to "get to know the country and learn the language". They might ask where you are staying and might want to see an appartment lease, so if you have that take copies of that along. Or they want to know whether you are taking any actual language classes and where. (If the last question comes up, tell them you intend to take classes, but aren't yet.) You fill out a form and either get the "Aufenthaltserlaubnis" on the spot or come back later a few days. You have to pay a fee between 30 and 60 EUR for it. It is a big sticker that takes up about one page in your passport and will be valid for either 6 months or one year (depending upon how much the officer liked your face).

This residency permit allows you to travel in the rest of the schengen countries for 90 days out of 180 - but in reality this is never checked, as border controls have been abolished and nobody in Schengen except the Germans cares about how many days an Aussie with a German residency permit spents outside Germany in other countries. The Germans care because the residency permit becomes invalid if you have been away from Germany for longer than 180 days.

If during your stay you find a job as an English teacher at a private language school, it is fairly easy to get a work permit for this kind of work in Germany.

One note though - I think it goes without question that you actually need to reside in Germany for at least a few weeks. You will also need to register your stay with the local authorities (at Einwohnermeldeamt or Bürgeramt or Bürgerbüro - simply fill out a form that states where you stay and sign it, this is something everybody in Germany has to do) before you go to Ausländerbehörde.

[ Edit: Edited on Jan 14, 2007, at 10:22 AM by t_maia ]

5. Posted by robertobcn (Budding Member 16 posts) 11y Star this if you like it!

hey there...

let me add a little something here: according to my lawyer (I'm chilean residing in Spain, so I have a lawyer for all this immigration things ) the trick of going out for a couple of months outside Schengen countries is not good enough -at least when entering to europe via Spain-, and you'd need to go back to your residence country instead.

Anyhow, you are correct about the non-centralized database for travellers, it doesn't exist unless you are officially deported (in which the case is that europol will have your data, but don't worry cos this is quite unlikely, specially being aussie... sad, but looks do count).

And last, "loosing" your passport is something that happens, so if you must come back, I wouldn't discard this possibility either (although, do not loose your passport every 3 months, that's suspicious in any country).

Have a nice trip!!! ;)


6. Posted by t_maia (Travel Guru 3290 posts) 11y Star this if you like it!

Quoting robertobcn

according to my lawyer the trick of going out for a couple of months outside Schengen countries is not good enough -at least when entering to europe via Spain-, and you'd need to go back to your residence country instead.

I would be interested in reading the article in the Schengen treaty that states that. (Please ask your lawyer, will you? Giving me an online link to a Spanish foreigners law code would also be very nice.) Spain has of course the right to set up its own local laws anyway it wants within the limits of the Schengen treaty. But it cannot decree that if you fly first into Spain, wait a few months and then go to France that your stay in France will be illegal. It also should not have the right to negate the general "90 days out of aperiod of 180 days" rule.

7. Posted by rdunbar24 (First Time Poster 1 posts) 11y Star this if you like it!

I entered the Schengen countries by way of Germany on 4 Nov 2006. Two weeks later I came to Austria, and I have been here in Vienna ever since living with my Austrian boyfriend. In the past week we have decided to get married. I have been without a visa by way of the Visa Waiver Program, as I am a US citizen. My problem is, my legal 90 day stay within the Schengen will be up in just two weeks. This is obviously not enough time to apply for and recieve a visa. Nor is it enough time to collect eveything required to for me to get married.
1) If I overstay my 90 days, will the magistrate still allow us to marry?
2) If they do allow us to marry, will I be allowed to stay while trying to obtain a residency permit/visa or whatever I need to be here legally?
3) We have spoken to several people within the Austrian government in our search for information, and several of the officials have told us that there was some sort of memo sent out last summer stating that only in the case of US citizens [b](and a select few other countries)[/b], leaving Austria and the Schengen territory, by going to Bratislava, Slovakia for example, and coming back in (even in just a short period of time) would allow that US citizen to stay for another 90 days without a visa. This is only pertaining to Austria they said, not the entire Schengen. Unfortunately, the only people we have spoken to also say that they are not officially in charge of these matters, but they have seen the memo. They also said that the people who are in charge of this are "not fond" of the memo. They then connected us to the office who is in charge and they told us they have never heard of this memo and got our phone number and said they would call if they found anything out. Are they just playing games with us and ignoring laws? The other office told us this exists! What is going on?

8. Posted by t_maia (Travel Guru 3290 posts) 11y Star this if you like it!

Are they just playing games with us and ignoring laws? The other office told us this exists! What is going on?

LOL, doesn't that ever sound familar to me! I work in immigration in Germany, not Austria, so I can only guess. But the structures are similar and for me it sounds like the Austrian Feds are running interference with the local authorities and the state authorities.

If nothing works out with the Austrian government, cross the border to Germany on the last day of your legal stay in the Schengen area and apply for a German "Aufenthaltserlaubnis".
Get a "Fiktionsbescheinigung" while they process your papers for Germany. This will make your stay in Germany legal. Once you got German "Aufenthaltserlaubnis", go to the Austrian authorities and apply for residency permit there and get your marriage papers in order.

With German "Aufenthaltserlaubnis" you wll be allowed to stay for 90 days out of a 180 day period in the other Schengen countries - lots of time to process the Austrian papers!