1

And now my story, with summary at top:

DATE: 2010/11/11
OVERSTAY: 4 days (by their strange calculations)
STATUS: Caught
WHERE: EXIT Zurich -> Non-Schengen
FINE: 600 CHF
PASSPORT VIEWED: Yes
PASSPORT SCANNED: Yes
PASSPORT MARKED: No (as in, no "overstay" stamp in my passport)
PASSPORT BLOCKED: Not so far (and was told probably not)

---

I overstayed my Visa and was pulled out of line after my passport was swiped and the immigration officer stared at the computer for a number of minutes. They needed to do a worksheet to figure out my situation and finally determined that I overstayed 4 days, though their calculations don't make sense to me. According to the 'out of any 180 days' interpretation I stayed much more than 90, though according to the '180 days from any entry' interpretation, I was probably okay. Not worth fighting, unless the final ruling puts a block on my passport, the immigrations officer told me this was unlikely - allegedly the decision will eventually be mailed to me.

Some interesting points regarding the calculations:

The officer briefly showed me the worksheet he had made up, and when it was done he told me that I could re-enter the Schengen Area two days later because I would be starting a new 180 day period then. This is not supporting the notion that a "Visa trip" would work as many times as desired, just that there was an actual specific 180 day period that was about to end and be reset, as opposed to the notion of any 180 day period having no more than 90 days which would be stricter. How they decide which of my many entrances into the Schengen Area is the actual start of the 180 day period is beyond me, but my guess is that the officer chooses the first entry that is within the last 180 days.

As mentioned, the officer told me that I could re-enter two days later, and he specifically told me I could start a new 180 day period at that point and that I could specifically stay for another 90 days if desired. I found that very strange, so I verified that with him twice. Then, since I was actually coming back to Zurich in a few days, I had one of my Swiss friends call the Immigration office (unsure of the name) and verify that I could re-enter, which she did and even got me a supervisor's name and number to call if I had problems re-entering the company. I was able to re-enter the Schengen area, though I left a couple of days later as per my original plans, so who knows what would have actually happened had I stayed another 90 days.

My actual travel dates inside the Schengen area, for those of you interested in trying to reverse engineer the Schengen rules are here:

Entry Via Exit Via # days
---
2010/05/13 ZRH 2010/06/18 ZRH 36 days
2010/06/22 ZRH 2010/08/11 ARN 50 days
2010/10/07 ZRH 2010/11/11 ZRH 35 days
** Caught on EXIT above (2010/11/11) for 94 day stay **
2010/11/15 ZRH 2010/11/17 ZRH 2 days

The "# days" could be interpreted as being off by one depending on whether they are 24 hour periods or inclusive, and depending on flight times...

On a side note, I missed my flight while having to deal with the Immigration officer, and had to pay another 300 CHF to change my flight. Fortunately there was another flight that evening which I got on, otherwise I would have been in a lot of trouble, since, as mentioned, I wasn't allowed to re-enter Schengen for two days and was effectively not allowed to leave the Terminal, a'la Tom Hanks style (though this Terminal was not 24 hours). Yikes!

2

And one by herrwilkus:

DATE: 2006-2009
OVERSTAY: often
STATUS: Not caught
PASSPORT VIEWED: Rarely
PASSPORT SCANNED: ??
WHERE: Many places, including EXIT FRA

--

herrwilkus has kept details of many contacts with police as well as an exit from Frankfurt with a significant overstay, and was not caught. It seems that, at least in his case, the police were not interested in his Visa status.

Here is his original thread posting:

herrwilkus: Charmed life?

3

Good initiative.
Your post made me wonder (don't think this was the situation in your case) If the 90th stay day of period 1 was exactly the 180th day of that period, wouldn't your second 180 day period have started at the 181st day after the start of the first period ? Do you have to leave Schengen first for a 2nd period to come into effect?

4

#4: As far as I can tell (talking about my #2 post above), this is exactly the case (at least according to this officer and my immediate experience at ZRH), don't know if I had to leave, though other postings I have read seem to imply that this is the case.

5

There is some confusion about the 90/180 day rule due to the fact that orginally the Schengen agreement stated in Article 20:

"Aliens not subject to a visa requirement may move freely within the territories of the Contracting Parties for a maximum period of three months during the six months following the date of first entry"

This agreement has since been superceded by Council regulation 562/2006 when the Schengen agreement became part of the European Union treaties. The new version reads (in article 5) :

"For stays not exceeding three months per six-month period, the entry conditions for third-country nationals shall be the following:"

This regulation no longer has a reference to the "first entry", which means that you now have a sliding scale, and you now have to look at he last 180 days.

Since European Union regulations are notoriously complex and there aren't always up to date versions available (you usually have to take the first version and then work yourself through subsequent amendments) border police may not always completely understand the current state of the law.

However generally speaking the following is true:

• 1) You may stay up to a total three months in a six-month period (usually interpreted to mean 90 out of 180 days)
• 2) In respect to short term visits, the Schengen member states function as a unified immigration area. This means that moving amongst the member states is similar e.g. to moving from one US state to another.
• 3) Long term visas are separate from stays under the Schengen system and time spent in a particular member country whilst holding a national visa does not count towards your 90 day quota.
• 4) A national visa permits travel for a maximum of 90 days per semester to other Schengen countries.
• 5) If you stay longer than 90 days then you are overstaying. Currently overstayers from countries not requiring visas often - but not always - slip through as SIS II is not yet operational and border police often cannot be bothered to match up all the different entry & exit stamps. If and when SIS II does operate, an overstay will almost certainly be detected.
• 6) Regardless of these rules, there is no right to enter the Schengen countries unless you hold a passport of an EU or EEA/Swiss country. If border police have reasonable suspicion to believe that you are circumventing or abusing the system they have the right to refuse you entry.

6

Thanks for sharing your story, daveola, and kudos for posting your experiences in an impartial way.

7

Thanks for the post Daveola, and a quick arrrrrrggghh for you at how frustrating that must have been! I'll be interested to read more stories on this topic too.

8

That's actually 37 days. (First and last days count)

again 51 days not 50.

= 36 days


That means your combined stay was 124 days and not 94 !! 4 days would be just a bit over but 124 days is more than just a small overstay.

9

This may be a special case due to the complexity of the Schengen Agreement. There are two legal documents that are the basis for the 3 month/6 month rule. One is the Schengen Agreement and the other one is the EU regulation 562/2206 which incorporated Schengen rules into the European Union. Now - EU regulation only apply to EU member states and only to some extent to countries associated to the European Union by other treaties. So this may be a case where Switzerland is still going by the original wording of the agreement (which mentions the date of first entry) as opposed to the newer EU regulation that doesn't.
That would mean that the rules for stays in Iceland, Norway, Switzerland (and by extension Liechtenstein) would be slightly different than those in the rest of the Schengen zone. That would be a bit contrary to the concept of a acquis communitaire, so I'm not 100% sure that this is not just a mistake by a local official.

Wording Schengen Agreement :"Aliens not subject to a visa requirement may move freely within the territories of the Contracting Parties for a maximum period of three months during the six months following the date of first entry"

Wording EC 562/2006 : "For stays not exceeding three months per six-month period,
the entry conditions for third-country nationals shall be the following:"

10

Okay : I double checked this and (at least for EU) countries the policy is definately that the clock is not reset. This was decided by the European Court of Justice in 2006.
In short: a Romanian citizen (Romanian was not yet part of the EU) stayed just under 90 days in August-November and November to January. He re-entered in March claiming that the clock had been reset as more than 6 months had passed since August 8. He was arrested and deported by French police. The ECJ decided against him. The legal language is very complicated so I'm not posting it here, but in essence the court decided that the clock is not re-set and that any stay within the last 6 months counts towards your 3 month allowance. There is a bit of wiggle room since the decision talks only about subsequent re-entries, which in theory could be interpreted as meaning that you would not have to count days stayed within the Schengen zone as long as the date of entry on that trip was longer than 6 months ago.
I.e. :

Entry Jan 1 Exit Mar 30
-->No re-entry until July 1, no stay beyond Sep 30

Entry Jan 1 Exit Jan 10
Entry Apr 1 Exit Jun 20
-->No re-entry until July 1, no stay beyond July 10

The court decision leaves a little bit wiggle room, as it talks only about dates of entry, so in theory:

Entry Jan 1 Exit Jan 2
Entry Jan 3 Exit Mar 30
-->No re-entry until July 1
If entry July 1 then, no stay beyond Jul 3
If entry July 3, then no stay beyond Oct 3

The last one is only a theoretical right and should not necessarily be tested in practice as many countries specifically do not allow this and simply look back at the last 180 days. Plus since the court did not take into consideration the new wording of EC 256/2006 which was subsequently passed and no longer refers to the date of first entry, it is highly likely that you wouldn't get by with the last scenario today (at least in EU countries).

11

For daveola above this means that the if the Swiss (correctly?) still apply the old Schengen agreement text, that indeed on Nov 15 he was elligible for re-entry, as the stay starting from May 13 had "expired". However the maximum stay was definately not 90 days as the June 22 and July 10 entries still count, thus the maximum allowed stay was 3 days, which was exactly what he stayed.

12

Thanks for looking all that up, george5. I'm sure this is a very helpful piece of information for future reference. Maybe you could x-post it on the FAQ thread?

13

Interesting replies. I guess it gives far more evidence to my presumption that the Swiss officer was wrong, though he was backed up by his superior.

And yes, I am confused about how they calculated the 94 days. I see many interpretations of the 180 days, whether we are talking about any 180 days, or if we are considering any trips that began more than 180 days prior are 'expired'.. I have a feeling that there are two questions:

1) What the correct legal intrepretation of the 90/180 days is (which george5 has enlightened considerably)
2) What the legal intrepretation of the 90/180 days will be to the officer that looks at your passport when you enter.

And question #2 may be confused further by the possibility that the non-EU countries that are in Schengen might further have their own interpretations. That worries me further since I was planning to fly in to France in the next month or so, and was figuring that they would be less 'rule intense' as the Swiss, but

What's weird is that while I travel regularly to Europe, I spend less than half of my life in Schengen countries, which passes the spirit of the 90/180 days limitiations, but because of timing of some trips, I'm now dealing with all this nonsense and trying to figure out if I'm a criminal according to some rules that are unclear and are enforced with wildly different interpretations. What a nightmare. Is there a chance that the Schengen agreement will change or become clearer? (crosses fingers)

14

In #6 george5 says:

"5) If you stay longer than 90 days then you are overstaying."

Yes, but which 90 days in which 180 days?? :-|

"Currently overstayers from countries not requiring visas often - but not always - slip through as SIS II is not yet operational and border police often cannot be bothered to match up all the different entry & exit stamps. If and when SIS II does operate, an overstay will almost certainly be detected."

Just to be clear about my original post - what was surprising was that the officer was immediately interested in my passport after swiping it through his computer. The officials decided that I had overstayed before they ever looked through the stamps in my overflowing passport (if they ever did actually look at the stamps). He just stared at the computer after swiping my passport.

That implies pretty strongly that it's all computerized, which I think is a recent development, and I'm thinking that lots of people who were getting through no problem are going to start having problems, perhaps depending on where they enter/exit Europe. It could just be that they had the entry/exit dates based on the fact that I usually fly in and out of Switzerland, except for the flight out of ARN... Hrm.

The reason I started this thread was to find out where and how Schengen was being implemented in various countries. I suspect that this has changed recently, so I'm hoping to get some recent entry/exit stories from people who have stayed in Europe for extended periods of time that may be considered 'overstay' by some definitions and not by others.