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I am a Brazilian national and overstayed my tourist visa in Switzerland because I was waiting for a residence permit. I first arrived on the 14th of June (through Amsterdam) invited by a Swiss University to study in one of their research institutes for two months. As I'm allowed to stay in the Schengen area for up to 90 days, I didn't get any visa. I left on the 15th of August (through Paris).

During this two month period, the institute offered me the opportunity of working with them from September 1st until December 23rd, and they told me they'd take care of my work permit from Switzerland, and I didn't have to do anything in Brazil. So after spending two weeks in Brazil, I went back to Switzerland on the 1st of September.

During my immigration in Frankfurt, the officer asked for my return ticket, as I still didn't have it, I showed my invite from the University, and my work contract, and then he let me go.

In August, with absolutely no knowledge on how to hire non-Europeans, the university started to apply for my visa. After many twists and turns, my permit was denied with the excuse that my employer didn't comply with all the requirements (proving no Swiss or European citizen could do my job working in a Brazilian-Swiss research institute) and I received a letter saying I should leave Switzerland until the 14th of November, and once here, I should send an e-mail to the cantonal immigration office to prove I left in time.

In Munich, when returning home, the officer took his time to understand what had happened looking through my documents, and then stamped my passport with no further marks or warnings.

After all of this I overstayed my tourist visa by 48 days.

When can I return to Switzerland?

I would like to go for the holidays to see my boyfriend (German living in Switzerland) before going back to law school in January. I would like to go from the 15th of December until the 3rd of January.

When I asked the cantonal immigration office while doing my "de-registration", they told me I was allowed back once my 180 days (counting from my first entry in June) were over, for more 90 days.

Does this make sense?

"Losing" my passport and getting a new one with no stamps could be an alternative to avoid questions regarding my stamps?

  • Dec 15 is after the 180 day mark, so technically you should be ok. They might ask you about the stamps but that in itself doesn't necessarily mean you will be denied entry. – blackbird Nov 18 '15 at 20:00
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Normally, the rule is based on a sliding 180-day window: for every day you are in Schengen, considering the previous 179 days, you are allowed to have been in Schengen for no more than 89 of those days. I don't know how your past overstay would affect this. Probably the days between your application and its denial do not count. If they did, though, the advice you got from the cantonal office would be incorrect for citizens of most countries. As a Brazilian, however, you are subject to special rules.

The current 90/180 rule is a change that took effect in October 2013. The old rule was that there was a 180-day period that began whenever you entered the Schengen area unless it was during a 180-day period that already started because of a previous entry.

For Brazilians, and citizens of 6 other countries, the old rule still applies. From the USER MANUAL FOR THE SHORT-STAY "SCHENGEN" CALCULATOR:

Please note that the change does not apply to the visa waiver agreements concluded between the EU and Antigua and Barbuda, The Bahamas, Barbados, Brazil, Saint Kitts and Nevis, Mauritius, and Seychelles where the old definition ("3 months during a 6 months period following the date of first entry") continues to apply. For citizens of these 7 third countries the calculator is not recommended to be used.

Source: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/border-crossing/docs/short_stay_schengen_calculator_user_manual_en.pdf

Therefore, any entry on or after December 11 will start a new 180-day period for you. You should be fine.

  • Thanks for the enlightening answer!! But just to be sure, my previous overstay wouldn't be a factor for the calculation or some problem now? – Andreiaoliveira Nov 18 '15 at 21:31
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    @Andreiaoliveira It would not affect the calculation. Someone might try to raise a problem about it; nobody can guarantee that they wouldn't. As long as you can document that you were acting in good faith, applying for a long-term permit, etc., you should be okay. If you have the cantonal immigration's response in writing, that you are allowed back after the 1st 180 days expires, so much the better. But I am speaking on general principles now. I don't have knowledge of what others in your situation have experienced. – phoog Nov 18 '15 at 22:31
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    @Andreiaoliveira I would add that this means you can engineer a 179-day stay in the Schengen area if you want. You would do this by entering the Schengen area for one day, 91 days before you want your longer stay to begin. – phoog Nov 22 '15 at 4:38
  • Before doing my own research, posting here, and finding out Brazil falls on an exception, I called Switzerland's embassy in Brazil as well as Germany's (where I usually go through immigration) and both told be the "any 180 day" rule, they even mentioned how people used to engineer longer stays, to use your expression, and the change aimed to avoid such thing. I emailed the girl I had spoken to in the cantonal immigration office to confirm the information. After she didn't reply for a couple of days, I called her and she said she needed some time to give me a well informed answer. – Andreiaoliveira Nov 24 '15 at 15:34
  • (...) She finally replied with the general rule, saying I should count back from my return on the 3rd/JAN to see if I'd exceed the 90 days within 180. My point is, I started to notice this exception may not be as widely knows as I'd hope, and the chances of they still considering me as an overstayer and not allowing me to cross are somehow high. So I decided it would maybe be better to change my strategy and just issue for a new passport with no stamps to be questioned about, since the SA still doesn't have and entry/exit database. What do you think? – Andreiaoliveira Nov 24 '15 at 15:35
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Andreia, yes, the officers are commonly not well informed. I've already got different informations from different officers in Schengen countries, which contradict each other. But as mentioned, we, Brasilian nationals, are part of the exception for the new rule, so you should be authorised to re-enter on or after Dec/11 having then a new 180-day period. The best is to print out that manual provided by the EU official website, and also give the link to the officer to check by himself in case he doesnt believe you. Well, it's already January, so how was your trip? Did you have problems to follow the old rule?

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