September 10, 2013

On June 26, 2013 the European Union adopted a regulation implementing several amendments to the Convention implementing the Schengen Agreement (June 14, 1985), the Regulation (EC) No 562/2006 (March 15, 2006) which established a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), as well as several other Regulations concerning the Schengen Area.

Most noteworthy are the new definition of the authorized short-term stay for third-country nationals, and new passport validity requirements for third-party nationals traveling throughout the Schengen Area.

What’s Changed?

Definition of authorized length of short- term stays

The Schengen Agreement had previously defined the maximum period of stay within the Schengen area in two ways:

1. for visa waiver nationals, the maximum period of stay was limited to “three months during the six months following the date of first entry”, and

2. for visa holders, the maximum period of stay was defined as “neither the length of a continuous visit nor the total length of successive visits exceeds three months in any half year, from the date of first entry”. Additionally, the Schengen Borders Code referred to the allowed period of stay as “not exceeding three months per six-month period”.

After the Amendment was implemented, however, the Convention now defines the allowed stay for third-country nationals as:

“90 days in any 180-day period”.

More specifically, the Amendment to the Schengen Borders Code itself now clarifies the meaning of this change even further, defining the allowed period of stay as:

“a duration of no more than 90 days in any 180-day period, which entails considering the 180-day period preceding each day of stay”.

In other words, the 180 day period will now be measured on a rolling basis: the 180 days immediately “preceding each day of stay”.

Why the Change?

The old, open-ended definition caused significant confusion and differing interpretations from frequent travelers, different countries, and even different border control officials within a country. For third-country nationals entering the Schengen area for the first time, or for multiple times within a first 180 day period the rules clearly defined how long they were allowed to stay (90 days in total). However, this definition was open to various interpretations for situations where a third-country national would be frequently traveling over a period longer than 180 days. For example:

  • Should subsequent 180 day periods start each half year calculated from the very first date of entry, or would a new 180 day period start the first date of entry after the previous 180 days has passed?
  • Would it be allowed, for example, to stay for 5 days initially, then another 85 days just before the end of the 180 day period, and again for 90 days immediately after the end of the first 180 days (in the new 180 day period)?

This problem has been recognized by the EU and the new regulation therefore states in consideration 9 of its preamble that “there is a need to amend the rules dealing with the calculation of the authorised length of short- term stays in the Union. Clear, simple and harmonised rules in all legal acts dealing with this issue would benefit both travellers as well as border and visa authorities.”

With this new regulation, the definition of the “90 days within 180 days” has indeed been more clearly defined, with no room for misinterpretation.

Required travel document validity

In addition, the required validity of the document authorizing a person to cross the border (usually passport) has also been redefined. Previously the only official requirement according to the Schengen Borders Code was for the document to be valid. After the implemented amendments this has been changed to a minimum required validity of three months beyond the intended duration of stay, which is in line with the minimum validity of the passport that was usually already requested for Schengen visa applications. In addition the travel document is now required to have been issued within the previous 10 years.

ACTION ITEMS FOR EMPLOYERS

Employers and their business travelers should be aware of the new definition of the “90 days in any 180 day period” and plan business visits to the Schengen Area accordingly. Please feel free to reach out to your Pro-Link GLOBAL Immigration Specialist for further clarification of this new rule.

Employees with passports expiring within 6 months of their planned entry date to the Schengen Area should immediately proceed with renewing their passport. Similarly, any traveler with a passport issued more than 10 years ago should apply for a new passport as well before travelling. Pro-Link GLOBAL can assist with passport applications for US nationals living in the USA.

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Caveat Lector | Warning to Reader

This is provided as informational only and does not substitute for actual legal advice based on the specific circumstances of a matter. Readers are reminded that Immigration laws are fluid and can change a moment’s notice without any warning. Please reach out to your local Pro-Link GLOBAL specialist should you require any additional clarification. This alert was prepared by Pro-Link GLOBAL’s Knowledge Management team.

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