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Here is the situation. I'm Belgian but this is about my American boyfriend. He entered Schengen on July 16, 2018 - flew into Amsterdam airport where his passport got stamped, then took a train to Belgium, where he stayed. On October 5, he obtained a student visa for Spain (type D), valid until May 31st, 2019.

He hasn't left Schengen since he arrived on July 16 and mostly stayed in Belgium (a couple of days in Germany and Czech Republic in August, a week in Spain late September) and then in Spain starting early October until late December. He came to Belgium for the Christmas holidays and only returned to Spain for one day after that. He is currently in Belgium.

Two questions:

  1. Can he legally stay in Belgium until May 31st with his Spanish visa? I found information on this only being possible for 90 days, but is this actually accurate? I don't understand how this would comply with the free travel between Schengen countries and the absence of border checks.

  2. On June 1st, does he have another 90 days in Schengen? I read everywhere that days spent under a visa are not taken into account, but what exactly does this mean? Are they to be considered like days not spent in the Schengen zone? Or are they not counted at all? Implying in the latter case that on June 1st he would only have 9 days left to spend in Schengen? (because he spent 81 days in Schengen between arriving on July 16 and getting his Spanish visa on October 5)

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  • Never ever overstay (but for good reasons, which you need to explain): it could cause a lot of trouble later, traveling in many other (and non EU) countries. And never tell other people to overstay (so you will not see such answer here, but you can get also problems yourself). -- Not being checked do not make things legal.
    – Giacomo Catenazzi
    Feb 20, 2019 at 13:51
  • Possible (part) answer here expatriates.stackexchange.com/questions/14117/…
    – Traveller
    Feb 20, 2019 at 14:15
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    @Silvergirl Did he specifically tell the Spanish Consulate that he’d be spending so much time in Belgium? They probably assumed he’d be in Spain (given that they’d just issued a study visa for Spain). I don’t mean to sound unsympathetic but it is up to the visa holder to familiarise themselves with the rules.
    – Traveller
    Feb 20, 2019 at 14:57
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    @Silvergirl This advice doesn't make sense to me, you might have met someone who wasn't that familiar with the rules or maybe there was some miscommunication. It doesn't really change your boyfriend's current situation.
    – Relaxed
    Feb 20, 2019 at 16:18
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    You can find the write up elsewhere but the gist of the 90/180 rule is: If, looking back over the previous 180 days from today, you have spent less than 90 of those days in the Schengen area then you can enter/remain in the Schengen area today. More than 90 of the past 180, you have overstayed. Time spent in a county with a "D" class visa does not count towards it. If your boyfriend has been in Belgium from October until now, he has already seriously overstayed, and any future visa will be very hard to get.
    – CMaster
    Feb 20, 2019 at 16:49

1 Answer 1

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Your boyfriend most definitely may not stay for most of the time in Belgium or use a Spanish visa to circumvent the limit on short stays in the Schengen area. Each country in the area retains the right to regulate long stays by non-EU citizens, a Spanish visa does not give you permission to live in Belgium. That much is clear, quite apart from the details of how days are counted and whether or not you're likely to be found out.

Some details on your specific questions:

  1. There is no general “free travel” for non-EU citizens, the rules are more complicated than that. And the lack of border control only means it's somewhat easier to flout the rules. Schengen countries consider this risk acceptable (borders weren't strongly enforced before either) but it does not mean your boyfriend is allowed to stay as long as he wants in Belgium on a Spanish visa.

  2. The rules are not crystal clear but not for the reason you suspect. The time spent in the Schengen area before he got a Spanish visa was long enough in the past that a new 90-day stay would be permitted. Those days need not concern him and if he had been in Spain since October, there would be no issue. The problem is that if you count all the time spent in Belgium (an interpretation a border guard is likely to take), he has already overstayed and certainly isn't allowed to stay even 9 days.

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    Just for the record, the idea was never to "use" his Spanish visa for Belgium. The original plan was that he would stay in Spain until the end of May, then move to Belgium and apply for a Belgian visa. His plan changed midway due to several circumstances, and since he's still under the Spanish visa, we haven't undertaken action yet to apply for a Belgian one since we were honestly convinced that it was not yet necessary. I literally just found out today that there might actually be a problem with that. Thank you for your very informational reply though, I appreciate it.
    – Silvergirl
    Feb 20, 2019 at 16:13
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    @Silvergirl Another issue is that if a visa is issued under specific conditions for a specific purpose, it is not obvious that the visa holder can just 'change his mind' in the middle of the period and use the rest of the visa for other things. If your boyfriend got a Spanish visa to study in Spain and he decided to quit his course, the visa may already be considered void by Spanish law.
    – Tor-Einar Jarnbjo
    Feb 20, 2019 at 18:14

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