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I am an American studying abroad in Germany, but I want to spend up to 90 days as a tourist in Spain following the end of my program and the expiration of my residence permit.

I entered the Schengen zone on the grounds that I have US citizenship and can therefore enter without a visa and stay in Germany for up to 90 days while applying for a residence permit. However, I do not know if the two months that it took me to officially receive my residence permit count as ~60 out of the 90 days. I do know however that time passed within the period of the res permit does not count towards the 90 days, as other posts have pointed out.

The main thing I want to know is if my residence permit retroactively covers that two-month period that passed before I officially received it (I was already applying for it upon arrival, but it got delayed and so the sticker in my passport officially says the term is March-June, even though I arrived in January). If so, I would have never started an 180 day cycle and can therefore just make a stop in the UK and get a re-entry stamp to Spain to begin my 90 days as a tourist.

marked as duplicate by JonathanReez, Ali Awan, David Richerby, JoErNanO, neubert Feb 23 '17 at 14:45

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The 180 day calculation is on the basis of a sliding window. First, ignore any days when you were in Germany on your German residence permit. Then, for each day you're in the Schengen area, look at the 179 preceding days. If you were in the Schengen area for more than 89 of those days, you've been in the Schengen area too long.

Therefore, assuming your residence permit lasted longer than 90 days, which I think it must have, you needn't worry about the time you spent in Germany before it became valid. You might have to worry about days you spent in other Schengen countries, if you did in fact do that.

Furthermore, the consensus here seems to be that you don't need to leave the Schengen area to "start" your stay as a tourist. It just starts automatically at midnight on the day after your residence permit's expiration. If I recall correctly, however, there was one person who posted saying that German authorities had said he or she would need to leave the Schengen area, so you might want to do it anyway just to be on the safe side.

A strict reading of the Schengen codes, however, supports the conclusion that you don't need to leave. The Schengen Borders Code is available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32016R0399.

By way of illustration, assume your permit expires on June 30th, having become effective on March 31st. Assume further that you didn't go to any other Schengen states during that time. On July 1st, you will look at the 180-day period that started on January 4th. Let's say you arrived on January 2nd, so you were present without a visa or permit from that day until March 30th, or 89 days. On July 1st, your total day count is 1 (for July 1st) plus 87 (for January 4th through March 30th).

With each successive day, the counted days in your current period increase, while the counted days in your prior period decreas: 2 + 86, 3 + 85, etc. But the sum is always the same: 88.

Once you reach September 26th, the beginning of the 180-day period falls during the validity of your residence permit. At that point, you stop looking at the days before it became valid, looking only at the days after it expired. On September 28th therefore, your count will be 89, and you will need to leave by September 29th.

Your dates are probably different, of course, so you may want to use the official Schengen Short-Stay calculator: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/border-crossing/schengen_calculator_en.html

  • thanks for the fast and detailed answer! I really appreciate your help. I have more points of confusion though; is there a specific part in the code that says the time spent applying for a residence permit doesn't count? I have an arrival stamp that says Jan 9 and my res permit start date says March 5, but someone told me that in the system the res permit would cover this whole period, even though the sticker does not reflect it. – maeve May 17 '16 at 21:14
  • @maeve the time you spent applying for a residence permit does count. I will edit the answer to explain why that doesn't matter. – phoog May 17 '16 at 21:16
  • also, I had believed that travel to other Schengen countries didn't count towards the 90 days. I've flown to Paris and Barcelona while on my residence permit, and have taken the bus/train to Prague and Amsterdam. my passport however only reflects the two occasions I left the Schengen zone (to Morroco and to the UK) and re-entered through Italy. It does not show when I re-entered Germany from any of these trips. – maeve May 17 '16 at 21:21
  • @maeve No, those days are the only days that do count toward the 90/180 limit while your permit is valid. There's no easy way for the authorities to know about them, so you won't get caught out unless they investigate in depth for some reason, but strictly speaking you should count any day you were in France, Spain, the Czech Republic or the Netherlands towards your 90/180 tally. – phoog May 17 '16 at 21:29
  • You are right, the German authorities interpret the Schengen Border Codex such that it requires leaving and re-entering the Schengen area so that one can stay new 90 days. However, they acknowledge that it is a rather silly formal requirement, so you can get a 90 day residence permit instead at the local authorieties. See 6.1.8.2 VwV-AufenthG. – neo May 17 '16 at 23:33

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