Visa-free stay of third-country nationals and its 90-day time limit.
Perhaps you have already experienced it yourself, have an employee who has experienced it, or know someone who has experienced it: a national of a third country (i.e. a country outside the EU) who is entitled to stay in Germany or Austria without a visa, enters Germany and applies for a residence and work from within the country and is forced to leave the country after 90 days.
How can this happen? And what is the best way to deal with it?
In the following, I will explain why such situations can occur and I will give you a recommendation for action to avoid such a situation.
First of all I shed light on the background:
The visa-exempt entry of third-country nationals into the Schengen area is in principle regulated by an EU law. The length of stay for such entry is 90 days per 180 days, whereby the entire Schengen area is considered to be the applicable area.
If, as an example, after entering the country from a Non-Schengen country, a residence and work permit is applied for in Austria, it may well happen that the competent immigration authority cannot successfully complete the permit during this period – namely the 90 days. One of the most common reasons for such delays is incomplete documents that need to be submitted later.
In this case, this has very unpleasant consequences, because:
If the 90-day period expires domestically, then it means for the person concerned: travel back to your home country. Leaving the Schengen area for a Non-EU country - such as Croatia, Turkey or Great Britain - is NOT sufficient if the 90-day domestic period has already expired. I would like to emphasise this at this point: this gap in the procedure has only recently been closed and is not yet sufficiently well known. At the end of the 90-day period, third-country nationals must therefore return to their home country, from where they must then apply for a visa D to re-enter and receive the residence permit at the invitation of the immigration authorities. What this means, and what burden it represents for the persons concerned, one cannot really imagine as a consultant. I have lived through such situations together with my clients, and the emotions that come up there have made it difficult for me to let go, because sometimes it is just such "little things" – under quotation marks – such as a visa-free stay period that has expired by a few days.
An Australian couple had a special experience in this context. The husband had been sent to Austria as an expat. They had applied for an RWR card – the Austrian criteria-driven immigration format for qualified key workers – through another agency. As
a family member, his wife was entitled to a RWR card plus. My agency MOVES Consulting had been commissioned to provide support, and was supposed to take care of things like accommodation and registration.
The Australian couple wanted to go on holiday in Spain for a week to 10 days while the spouses application was being processed at the immigration office. She had explicitly asked the supervising agency before the trip, with the following words: "We are currently on visa-free status in Europe. Can we travel and are the visa-free days enough for our return and waiting for the official approval of our RWR cards?"
The agent said, "Yes, you can travel with peace of mind. you can wait for your applications to be approved, as you will be outside Austria, namely Spain.”
No sooner said than done. They travelled to Spain. 4 days
later, however, the husband received a call on his mobile phone, which read: "Your wife has to leave the Schengen area because she has used up all visa-free days."
A disaster, as you can imagine. How could this happen, after all the conscientious preparation?
In the present case, the problem arose from the fact that the supervising agency was not yet sufficiently experienced in the field of 'immigration'. The agent in question was simply not aware of the problems of the Schengen area already described.
The correct information to the couple should have been: the 90 days visa-free stay apply to the entire Schengen area. As mentioned above, applying in one EU country and then travelling to another EU country does not stop the visa-free stay.
Afterwards you are always smarter. But if it has already hit you – what can you do?
In this particular case, the husband called us and asked what to do. I said without further ado:
"If you have friends in London, then send your wife on a shopping or friends tour to the UK. The UK is not a Schengen member and your wife can pick up a Visa D at the Austrian Embassy there. I'll take care of it from Vienna" – that was my promise, and I was able to keep it. 10 days later, the wife was back in Vienna with the said visa and was able to pick up her residence card the next day.
But to come back to the practical part:
The best advice I can give you in this situation is to keep this 90-day deadline in mind as much as possible. If your deadline has not yet expired and you have at least 2 days left, then travel in time from the Schengen area to a European country – for example to Croatia, Turkey or Great Britain.
From there, as soon as you have the invitation to collect the residence permit, you can easily re-enter the Schengen area to receive your residence and work permit. As I said, this procedure only applies if the 90-day period has not yet expired.
Although you also have the hassle and hassle of an additional trip and a delayed processing of your requests, it can be a great relief – depending on which country is the country of origin of your employee – not to have to leave the continent.
for further question on this topic please write us an email to: office@moves-consulting.com