Schengen Overstay
Mar 2nd, 2014, 01:36 PM
#1
Original Poster
Join Date: Mar 2014
Posts: 2
Likes: 0
Received 0 Likes
on
0 Posts
Schengen Overstay
I'd love some advice and insight from some other seasoned travelers on a situation that just happened. Here's the summary and all input is welcome.
I arrived in Germany back in September, went to Poland after a few weeks and stayed with my Polish girlfriend there for the remainder of my 90 days on the tourist visa. I knew the US and Poland had a bilateral trade agreement that allowed US citizens to leave and reenter every 90 days and stay within Poland without having to get a formal visa because I had done that about 5 years ago. Before coming to Europe I verified with the Polish Embassy and our embassy in Warsaw that the agreement was still in place and that it was still possible to do what I'd done before.
So, in November I crossed into Ostrava before the first 90 on the Schengen tourist expired, came back to Poland and stayed a couple more months and was getting ready to apply for a residence permit as we had decided to make things between us wedding bells permanent.
During a random conversation with another expat there just a few weeks ago, I was informed that the treaty had been changed and Americans now needed to leave Schengen every 90 days and that simply crossing into Germany, CR, or Slovakia no longer qualified.
Immediately after hearing this I contacted the immigration office via email, the Polish Embassy in the US (it was after hours in Warsaw and I wanted an immediate answer), and an immigration attorney there to verify what the current rules were and to make sure I was straight with the law. I made no effort to hide or run, used my real name, and was straightforward. I have an email chain a mile long on this, including the original emails I'd sent/received before I arrived in Europe.
They confirmed the treaty had been modified and that I was now officially an "illegal immigrant" and would have to leave as my November trip had been within Schengen and not outside of Schengen which would still allow the 90 day leave/reenter. Also, the treaty does still supercede the standard 90/180 for Schengen.
So, I booked a ticket to the states for the next week and informed them of this fact. They wrote back and I was informed that there may be a fine and a 2 year Schengen ban would be applied at the airport. Upon departure from the airport the customs officer looked over my passport, scanned it, I answered her questions, showed her my receipts from Ostrava, got a regular stamp and a thanks for visiting, please come back soon. No remarks about overstay, no forms to fill out, no little red ban stamp, no fine, no problems whatsoever.
Of course, I want to go back as soon as possible. However, I'm not sure if there's anything in SIS II, or VIS that would prohibit reentry. I never intended to break the law and 22 years of traveling/living abroad this is the first time I've ever run afoul of the law in a foreign country. Ok, I once smoked a cigarette on a Japanese sidewalk, but other than that, squeaky clean.
My questions are: It's only been about a week.
If I request my SIS II record, will anything show up yet? Is the system updated automatically on departure? How about my VIS record?
How long does it take to process an SIS II record request?
I don't want to raise any more red flags in Poland than I already have, so would it be best to request an SIS II record from Germany instead?
What about the national records? Does anyone know if I can access my Polish immigration record and how to go about that? (I've asked my attorney, but haven't heard back yet.) If I can get back, my first stop will be to the immigration office for that residence permit if everything is clear.
Anyone with insight or suggestions?
I arrived in Germany back in September, went to Poland after a few weeks and stayed with my Polish girlfriend there for the remainder of my 90 days on the tourist visa. I knew the US and Poland had a bilateral trade agreement that allowed US citizens to leave and reenter every 90 days and stay within Poland without having to get a formal visa because I had done that about 5 years ago. Before coming to Europe I verified with the Polish Embassy and our embassy in Warsaw that the agreement was still in place and that it was still possible to do what I'd done before.
So, in November I crossed into Ostrava before the first 90 on the Schengen tourist expired, came back to Poland and stayed a couple more months and was getting ready to apply for a residence permit as we had decided to make things between us wedding bells permanent.
During a random conversation with another expat there just a few weeks ago, I was informed that the treaty had been changed and Americans now needed to leave Schengen every 90 days and that simply crossing into Germany, CR, or Slovakia no longer qualified.
Immediately after hearing this I contacted the immigration office via email, the Polish Embassy in the US (it was after hours in Warsaw and I wanted an immediate answer), and an immigration attorney there to verify what the current rules were and to make sure I was straight with the law. I made no effort to hide or run, used my real name, and was straightforward. I have an email chain a mile long on this, including the original emails I'd sent/received before I arrived in Europe.
They confirmed the treaty had been modified and that I was now officially an "illegal immigrant" and would have to leave as my November trip had been within Schengen and not outside of Schengen which would still allow the 90 day leave/reenter. Also, the treaty does still supercede the standard 90/180 for Schengen.
So, I booked a ticket to the states for the next week and informed them of this fact. They wrote back and I was informed that there may be a fine and a 2 year Schengen ban would be applied at the airport. Upon departure from the airport the customs officer looked over my passport, scanned it, I answered her questions, showed her my receipts from Ostrava, got a regular stamp and a thanks for visiting, please come back soon. No remarks about overstay, no forms to fill out, no little red ban stamp, no fine, no problems whatsoever.
Of course, I want to go back as soon as possible. However, I'm not sure if there's anything in SIS II, or VIS that would prohibit reentry. I never intended to break the law and 22 years of traveling/living abroad this is the first time I've ever run afoul of the law in a foreign country. Ok, I once smoked a cigarette on a Japanese sidewalk, but other than that, squeaky clean.
My questions are: It's only been about a week.
If I request my SIS II record, will anything show up yet? Is the system updated automatically on departure? How about my VIS record?
How long does it take to process an SIS II record request?
I don't want to raise any more red flags in Poland than I already have, so would it be best to request an SIS II record from Germany instead?
What about the national records? Does anyone know if I can access my Polish immigration record and how to go about that? (I've asked my attorney, but haven't heard back yet.) If I can get back, my first stop will be to the immigration office for that residence permit if everything is clear.
Anyone with insight or suggestions?
Mar 2nd, 2014, 02:02 PM
#2
Join Date: Oct 2013
Posts: 1,086
Likes: 0
Received 0 Likes
on
0 Posts
Since you are planning to marry, you cannot afford to get this wrong. With that in mind, a travel forum visited primarily by tourists is not the place to be asking this kind of question.
You need to talk to a lawyer familiar with Polish Immigration law, no one else.
You need to talk to a lawyer familiar with Polish Immigration law, no one else.
Mar 2nd, 2014, 02:23 PM
#3
Join Date: Jan 2003
Posts: 4,416
Likes: 0
Received 0 Likes
on
0 Posts
You may like to know that there is a well-known EU regulation that states that those who are illegally in an EU state cannot be denied EU rights simply because of their illegality. So even an illegal overstayer, when they establish EU rights by marrying an EU citizen, cannot be denied those rights, for example, by having their residence permit denied or deported. The rule works differently if you try to live in the country where your partner is a citizen of.
But having those rights and enforcing them are a different matter.
It's still a complicated situation so I agree you should get proper legal advice about your position.
But having those rights and enforcing them are a different matter.
It's still a complicated situation so I agree you should get proper legal advice about your position.
Mar 2nd, 2014, 04:38 PM
#5
Original Poster
Join Date: Mar 2014
Posts: 2
Likes: 0
Received 0 Likes
on
0 Posts
Definitely going to talk to my lawyer tomorrow, just trying to get a jump on things because if I can get back by Friday, I'd sure like to.
Has anyone ever pulled their SIS II records? I know you can, I'm just curious how long it takes to do it and whether certain countries are faster at providing it than others.
Has anyone ever pulled their SIS II records? I know you can, I'm just curious how long it takes to do it and whether certain countries are faster at providing it than others.
Mar 2nd, 2014, 06:19 PM
#6
Join Date: Mar 2011
Posts: 1,294
Likes: 0
Received 0 Likes
on
0 Posts
Are you sure it's possible to pull up your SIS II record?
I read a few months back that Schengen has wanted to establish a comprehensive database of people's comings and goings using SIS II (so that it could be matched based upon scanning passports at the borders), but they are still far from that. What I read is that they are still struggling to get their database of convicted criminals established. I believe it still has to be the border agent who goes through the passport and determines from the stamps how long any individual has been in Schengen in the last 180 days, let alone the distant past. I go 5 times a year to Europe, and sometimes pop over to the UK, so I get a lot of stamps. I'm always under 90 within 180 in Schengen, but figure it would take a border agent twenty minutes at the very least to put all the dates together and add it all up.
I read a few months back that Schengen has wanted to establish a comprehensive database of people's comings and goings using SIS II (so that it could be matched based upon scanning passports at the borders), but they are still far from that. What I read is that they are still struggling to get their database of convicted criminals established. I believe it still has to be the border agent who goes through the passport and determines from the stamps how long any individual has been in Schengen in the last 180 days, let alone the distant past. I go 5 times a year to Europe, and sometimes pop over to the UK, so I get a lot of stamps. I'm always under 90 within 180 in Schengen, but figure it would take a border agent twenty minutes at the very least to put all the dates together and add it all up.
Mar 2nd, 2014, 11:26 PM
#7
Join Date: Jan 2003
Posts: 4,416
Likes: 0
Received 0 Likes
on
0 Posts
Yes, you are right. Schengen Information System (I or II) is far from a comprehensive database of tracking passengers' movement in and out of the area. The logistics are enormous with 26 countries, and Schengen Information System remains a passive system just flagging up when a personal document about whom an alert has been issued by a member state is inputted (usually by scanning). An alert is usually issued only for fugitives from justice, known immigration offenders (e.g. deportees), stolen or lost IDs, drug traffickers etc.
Yes, counting stamps and calculating the days in and out of Schengen is currently the only way to establish compliance with 90-in-180 days rule. I've heard of a Polish official doing just that to a young US traveller, and I can imagine Swiss or German border guards doing the same as they are know for thoroughness. Some countries still maintain a national database of tracking movements, and if you overstay just within one Schengen state, you can be detected on exiting (Germany, Netherlands etc).
Yes, counting stamps and calculating the days in and out of Schengen is currently the only way to establish compliance with 90-in-180 days rule. I've heard of a Polish official doing just that to a young US traveller, and I can imagine Swiss or German border guards doing the same as they are know for thoroughness. Some countries still maintain a national database of tracking movements, and if you overstay just within one Schengen state, you can be detected on exiting (Germany, Netherlands etc).
Thread
Original Poster
Forum
Replies
Last Post
gparismactim
Europe
6
Dec 22nd, 2013 11:54 AM
