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I am in a Schengen country, and I arrived via another Schengen country. I used up most of my time before arriving and this was NOT a Schengen country when I came. It became a Schengen country after I arrived. I then applied for a residency permit to stay so it would stop counting down the clock and I would not overstay in Schengen under the 90/180 rule.

In the country I am in, which is now a Schengen member state, I have a residency permit in progress, but not issued. According to the police in this country, as well as immigration, as long as an application is in progress, even if it takes months or a year, then the law of this country states that I can stay here legally as long as the application is in progress.

Here is my problem. According to the 90/180 rule in the Schengen Code,

"Periods of stay authorised under a residence permit or a long-stay visa shall not be taken into account in the calculation of the duration of stay on the territory of the Member States."

But I do not have either a residency permit nor a visa. Instead, I have legal residency under a special law for this country that allows me to stay while an application is in progress.

I want to visit another country but do not want to overstay Schengen. Even though there are no border controls, I am not willing to risk it. Instead, I need to know the law.

Did my Schengen time stop counting the moment I was allowed to stay legally under the law in this country that allows me to stay while application is in progress even though my residency is not approved yet?

Or will I have to wait for the residency application to be approved first and then wait 90 days? Which would mean I would have to wait like 6 months to re-enter Schengen instead of only 90 days like the normal rule. Hopefully the former?

Maybe this country's specific law that gives me legal residence while application is in progress actually can be considered as a sort of residence permit for Schengen purposes?

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    How many days did you use up before leaving the Schengen area for Croatia? On what day did you enter Croatia? On what day did you apply for the Croatian residence permit?
    – phoog
    Feb 7, 2023 at 0:54

1 Answer 1

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It likely does count as days spent in the Schengen area for short-stay purposes (after the country joined Schengen). Your stay in the particular member state can nonetheless remain legal.

The definition of a residence permit is rather clear, and it excludes even explicit temporary permits pending examination of a first application:

Article 2

  1. ‘residence permit’ means:

(a) all residence permits issued by the Member States according to the uniform format laid down by Council Regulation (EC) No 1030/2002 ( 3 ) and residence cards issued in accordance with Directive 2004/38/EC;

(b) all other documents issued by a Member State to third-country nationals authorising a stay on its territory that have been the subject of a notification and subsequent publication in accordance with Article 39, with the exception of:

(i) temporary permits issued pending examination of a first application for a residence permit as referred to in point (a) or an application for asylum; and

(ii) visas issued by the Member States in the uniform format laid down by Council Regulation (EC) No 1683/95 ( 4 );

The list of residence permits communicated by each member state to all member states can be found on EU website: https://home-affairs.ec.europa.eu/list-residence-permits-issued-member-states_en.

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    This is correct. Most if not all Schengen states allow applicants for first time residence permits to stay while the application is processed, but this right to stay is limited to the processing country. If other credentials for stay are expired (e.g. 90 days lapsed), the applicant is not allowed to travel to other Schengen countries while the application is processed. The right to stay while waiting for the application to be processed does also not necessarily include the right to reenter if the applicant leaves the country. Feb 7, 2023 at 11:08
  • to add to this, I have seen in some Schengen countries where there were large delays in the processing of residence permits AND the applicant needed to leave temporarily it has been possible to receive a re-entry permit/visa that would allow you to leave and then only return to that specific schengen country. I have also known of someone leave while their residence permit was still in process because they held a valid schengen visa but no re-entry permit, only to then be refused re-entry due to having appeared to have overstayed on the schengen visa with nothing to prove otherwise. Big mess.
    – Messtopher
    Feb 8, 2023 at 7:32
  • (+1) A couple of caveats: I know at least one country (i.e. France) where the residence permit you get is dated from the date you lodged the application, even if you had to wait for it many months. That means that while you are not supposed to travel while you are waiting for it, you don't have to wait to travel once you get it (that was one of the OP's question). It will cover all the wait after the fact.
    – Relaxed
    Feb 8, 2023 at 8:45
  • I also read the definition a bit differently. It's not very explicit or restrictive. You are not supposed to travel during your first application for residency or as an asylum seeker, no question about that, but adding this qualification (instead of excluding all temporary permits) leaves a lot of other scenarios and means a contrario that it is allowed to travel even with a temporary permit of some sort (as long as it's not issued to cover your first application).
    – Relaxed
    Feb 8, 2023 at 8:50

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