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I believe some of the immigration officers are mis-using the 90/180 day law to reject my wife's visa application for a family immigration application. They said she had no more days left when we delivered the application on the 22 March 2019 - 22/03/2019

However, they were basing it somehow on the fact that she had overstayed 4 days earlier sometime in January. However, when she left the immigration control in the country that time. They only told her she had to be careful because there could be consequences, but that they will not take measures this time, because it's minor.

Now, the lady we delivered our application to confirmed she had stayed in Schengen, for 88 days, before delivering it on the 22.03.2019 - which was correct with my calculation. However 7 months later we got the refusal of visa based on the evaluation that my wife was in the country illegally (out of days) when we delivered the application on the 22.03.2019 - for me it seemed like the lady who had done this evaluation is still using some of the old rules. Before the change in October 2013 (Oct 18th) 90 days in any 180 day period, which means it's a constant moving 180 day.

The refusal says ''XXX person overstayed on the period between 04-01-2019 (4th january) and 08-01-2019, that means she stayed illegally when she delivered her documents. But how are those in January, relevant to her being there ilegally on the 22th of March? We counted 88 days of stay from 22th of March and to 20th of September (180 days) - same as the police officer.

Am I wrong that a legal stay is calculated from the date you wish to travel to the Schengen country, and then subtract 180 and figure out your stays in between those two dates. If that ends on say example, 84, that means you can legally stay in Schengen for 6 days. (Or more considering the period is moving again while the person stays there)

So when I bought her ticket to come back again on 08.03.2019 - I needed to count back 180 days(from 08.03.2019), and see the days she had been there. (Taking the overstay in the calculation of course) - and I came to the result that she had 19 days left. (71 stays in schengen from period 08.03.19 - 09.09.19) So it was a legal travel and stay.

Considering there was no ban, or any consequence of her overstay. Is there any law or any paragraph in the Schengen agreement, that states you are unable to re-enter the Schengen for X amount of day because you overstayed? I'm certain that's up to the member states to enforce themselves.

TLDR; If they never gave her a ban, or any other message. Would calculating a legal stay on the 22.03.19 - be as uncomplicated as counting 22.03.19 - 180 days = 09.09.2018 Then count days of stay in between those 2 dates, to know how many she has left to stay in Schengen?

Summary of travel dates from comments:

  • Travel 1: 24.08.2018 - 01.10.2018
  • Travel 2: 29.10.2018 - 19.11.2018
  • Travel 3: 22.12.2018 - 26.01.2019
  • Travel 4: 08.03.2019 - 22.03.2019
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    If you want to put the dates of entry and exit into your question I will so an analysis of how long the allowed stays would be. As it is, there isn't enough information to determine whether your wife had used up her 90 days on 22 March 2019. – phoog Sep 28 at 3:13
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    Violations no matter how minor, are not subject to the 90/180 days rule. A violation is a violation, and any officer is allowed to consider all previous violations when making a decision, and it sunds like that is exactly what has happened here. – Henrik - stop hurting Monica Sep 28 at 5:25
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    If the rejection reason was that she "was in the country illegally (out of days) when we delivered the application on the 22.03.2019", then the relevant period is the 180 days ending on 22.03.2019. – Patricia Shanahan Sep 28 at 7:30
  • The point is she had used up her days before March. But the question lies on the fact that the rejection was based on illegal stay the 22 March 2019. I understand that delivering the application on the overstay period in January, would have resulted in a rejection. But as long as she was not fined or given any ban, only a warning. The question then remains, is there any rule/law that says her stay on 22 March is also deemed illegal because of an overstay period 2 months earlier? – Roland.W Sep 28 at 9:51
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    You have to list the complete travel history in the last 180 days preceding March 22, 2019 for anyone here to answer if she was staying legally on that day. Until then, I vote to close this question as unclear. It would also make it much easier to understand what you are asking about if you redact out all unnecessary information, e.g. the age of the 'lady' and your lengthy interpretation of the rules. – Tor-Einar Jarnbjo Sep 28 at 10:52
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You seem to think that visas are a right and that they have to grant you one unless there is a very specific rule that says they shouldn’t.

This is not the case. The applicant needs to establish that they will respect the rules of their visa (no work, no relying on the state, leaving in time).

By overstaying, one shows they do not respect the rules, which means they are very unlikely to grant any further visas. This will probably last at least as long as the information is available.

  • jcaron. I didn't specify. But she is from a VISA free country. She doesn't need to apply for a VISA. The countries whose citizens are not required to obtain a Schengen visa in order to enter any member country of the Schengen Area for tourism or business purposes are: She is in that list of countries. – Roland.W Sep 28 at 13:48
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    Even coming from a visa-free country, if she shows up at a Schengen member country border and the immigration officer's screen says she's violated the 90/180 day rule, she will be turned away. – David supports Monica Sep 28 at 13:55
  • That's my point.. she wasn't turned away cause when she came back on the 8th of Mars, she was within the 90/180 day rule, and passport control let her straight through. – Roland.W Sep 28 at 14:04
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    On each entry, the border officer has to make their own determination of whether the visitor should be allowed in (that applies even for visas). It is not as detailed as a visa application process, and in many cases the visitor will be more or less just waived through, but there are many cases of people from visa-free countries who are denied entry. It may be the case that the first time she came back the officer just didn’t check, while the second time they did. It may happen one didn’t think it was a big issue, while the other one did. – jcaron Sep 28 at 14:19
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    @Roland.W If your lawyer is telling you the rejection was incorrectly based, why are you seeking confirmation from a bunch of strangers on the internet? – Traveller Sep 28 at 17:46
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However, they were basing it somehow on the fact that she had overstayed 4 days earlier sometime in January. However, when she left the immigration control in the country that time. They only told her she had to be careful because there could be consequences, but that they will not take measures this time, because it's minor.

So there was an overstay in January, which was labeled "minor" by officials and did not result in a fine at the time?

There is your explanation. The previous overstay is on her record.

  • There was an overstay earlier in January, that is correct. But is there some unwritten rule somewhere saying if you overstayed X days earlier, you have to be out of the country for so-so long to wait for a new reset before you can enter again? She did leave the country once already after that period in January, and came back on 8th of March. It did not result in anything, had she gotten a ban saying you can't come back for X days, we understand. But are we wrong to assume that the overstay is deemed irrelevant considering no ban/fine was given, when she came back to visit on 08.03.2019? – Roland.W Sep 28 at 9:57
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    No, the rule is that the simple fact she overstayed, even once, even for a single day, means they can’t trust her any longer to respect the rules, and so they can reject any future applications. Remember that visas are not a right. – jcaron Sep 28 at 12:02
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    @jcaron, family unification visas may be a right, depending on the circumstances. But such an application can be made while the partner is outside the EU. – o.m. Sep 28 at 14:38

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