8

My girlfriend is a Mexican passport holder.

She studied in Netherlands for her masters and she possesses a residence card/permit from The Netherlands (the expiry date on the card says 1st Dec. 2016).

She is living with me at the moment in Berlin and already has her tickets to fly back to Mexico on 30th Nov. 2016 (1 day before the "expiry date" on her Dutch residence card).

She received an email yesterday (2nd Nov. 2016) from her University in Netherlands that because she's not a student at the University anymore, her status has been informed to the IND (Immigration and Naturalization service of Netherlands) and that her residence card is invalid from 1st Sept. 2016 (we both graduated in Aug./Sep. 2016) doesn't matter what "expiry date" is mentioned on her residence card. So technically she's been living illegally since past two months in Berlin with me!

My question is: would there be an issue when she'll go through border/passport control in Berlin (on 30th Nov. 2016)?

I understand that Mexican nationals enjoy 90 days in 6 months tourist stay in Schengen but this period doesn't automatically start after your long-term residence permit or visa expires. So is it necessary that she leaves Schengen area (to lets say UK) and enter again as a tourist before her flight out of Berlin.

Edit 1: Fast forward to 30th Nov. 2016 Girlfriend was able to exit Germany without any hassle. The passport control officer put an exit stamp on her passport but then the flight was cancelled. She stayed one more night in a hotel and finally took off from Köln on 1st Dec. 2016 at 23.30 (30 minutes before the expiry of her RP). Also learned that passport control is flexible in these matters. They told her that they'd have let her fly if the flight was cancelled again for next day (when her RP would have been "visually" invalid.)

JonathanReez
  • 83,545
  • 81
  • 372
  • 721
Abhijeet
  • 91
  • 5
  • Did the authorities say it's valid until (through) 1 Sep or 31 Aug? Because if it's 31 Aug, she's exiting on day 91...I think. – mkennedy Nov 04 '16 at 14:11
  • @mkennedy, My thoughts exactly. Anyhow, this is the email she received:

    Dear xxxxxx,

    This email concerns your residence permit for the Netherlands. We have informed the IND that you are no longer a student of xxxxxx xxxxx as from 01-09-2016.

    This means that your residence permit for the Netherlands is no longer valid as from 01-09-2016 no matter what the expiry date on your residence permit card is.

    In case you wish to return to the Netherlands, you need to apply for a new entry visa and or residence permit ..........(....).........

     – Abhijeet Nov 07 '16 at 15:22
  • Possible duplicate of How to switch from Resident to Tourist status in the Schengen area? – JonathanReez Feb 17 '17 at 15:06

1 Answers1

8

I understand that Mexican nationals enjoy 90 days in 6 months tourist stay in Schengen but this period doesn't automatically start after your long-term residence permit or visa expires

You are incorrect, there's no need to reenter the Schengen area after the expiration of one's national visa. According to the Schengen Border 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.

So your girlfriend's status as a citizen of an Annex II country would trigger immediately after her residency permit expires. She is therefore free to stay in the Schengen area for 90 days after September 1st.

My question is: Would there be an issue when she'll go through border/passport control in Berlin (on 30th Nov. 2016)?

No, there won't be a problem at the border crossing. Just make sure that your girlfriend presents her residency permit to verify her former status as a long-term resident.

JonathanReez
  • 83,545
  • 81
  • 372
  • 721
  • 5
    Dutch law actually requires her to leave the Schengen area within a certain time after the permit ceases to be valid. The question here is therefore whether the Germans will enforce that, and whether they'll even know that the permit has been withdrawn. If the answer to both questions is yes, she could have problems. – phoog Nov 03 '16 at 13:35
  • @phoog does the Dutch law apply to Annex II individuals or holders of other Schengen visas? E.g. it's possible to hold two Schengen residency permits simultaneously. – JonathanReez Nov 03 '16 at 13:38
  • 2
    It applies to annex II individuals. I don't know about holders of other residence permits. I doubt the law would hold up in court, but I also doubt anyone would want to go to the trouble of challenging it. – phoog Nov 03 '16 at 13:50
  • @phoog I don't think other Schengen members can enforce immigration laws beyond what's written in the Schengen border codex. Since OP's GF is leaving from Germany it would therefore be a moot point anyway. – JonathanReez Nov 03 '16 at 13:57
  • @phoog do you happen to know this "certain time after the permit ceases to be valid" time frame. She just received communication from the University yesterday about something that came into effect two months ago!! – Abhijeet Nov 03 '16 at 14:14
  • Your answer gave me some optimism @JonathanReez. Thank you.

    She did ask the Mexican embassy in Berlin if she can keep living in Berlin with me after her "1st Dec 2016" deadline finishes but the embassy told her that she'll have to exit schengen and enter again. This communication happened in October because she wanted to cancel her 30th Nov. tickets and live a bit longer and travel with me for the New year holidays but now apparently her permit is invalid from a back-date so she'll fly out as planned!

     – Abhijeet Nov 03 '16 at 14:20
  • 2
    @Abhijeet I wouldn't take the word of the Mexican embassy on Schengen questions, even Schengen consulate employees are often incompetent when it comes to specific nuances of the system. In any case your GF should be fine. – JonathanReez Nov 03 '16 at 14:28
  • Perfect. Thank you for your answer @JonathanReez When I go back home this evening I'll have some peace of mind. – Abhijeet Nov 03 '16 at 14:34
  • 2
    Jonathan, @phoog is right about leaving the zone – Gayot Fow Nov 03 '16 at 16:56
  • @GayotFow please add your own answer and I'll delete mine – JonathanReez Nov 03 '16 at 17:39
  • No, yours is fine except for the leaving the zone part. – Gayot Fow Nov 03 '16 at 17:48
  • Update on the situation:

    Girlfriend is about to board the plane as I type. The passport control officer didn't check the validity of permit from Netherlands. They even refused to stamp the exit (which is weird) stating that the permit is (on card) valid till tomorrow. She anyhow requested them to put an exit stamp. No hassle.

    @jonathanReez was right. Her "visibly valid" residence permit was more than enough.

    Should I update the situation in the question?

     – Abhijeet Nov 30 '16 at 12:44
  • 1
    @Abhijeet certainly. Comments tend to get cleaned up from time to time. – JonathanReez Nov 30 '16 at 13:09
  • This answer is just wrong. At least for Germany. I had a similar case and contacted the responsible authorities. They explicitely stated that overstaying any kind of visa is illegal and one should either apply for an extension or leave the Schenguen area and reenter for the 90 days tourist status to apply. – Mehdi Jan 20 '19 at 15:02