90 Days in the Schengen Area – Simply Not Enough?

Scenario

When returning from a few weeks of business travel to several EU countries, your UK employee was fined and received a re-entry ban in the Schengen Area for two years. Upon exit checks, border guards discovered he had overstayed his 90-day Schengen allowance—the reason for his sanction.

The business would need this employee to travel to other EU-based offices for business purposes in the coming months, however, this is no longer possible due to the re-entry ban issued until June 2025. Moreover, he needs to cancel his upcoming holidays in Italy, a country where he has been spending his summer holidays almost every year for the past 10 years.

Real impacts

This is not a mere theoretical scenario, but a very realistic situation. We notice that it is only now – several years after Brexit – that the end of the freedom of movement is impacting UK travellers in such a concrete manner.

Immediately after Brexit, there was a transition period until the end of 2020, exempting UK citizens from the 90-day limitation and basically maintaining the status quo on free movement rights despite the UK no longer being an EU country. Afterward, during the COVID-19 pandemic, there was very limited business travel, therefore exceeding this limitation – although already in force as of January 2021 – was practically impossible.

Currently, business and personal travel are back to normal, so those who travel frequently may find it extremely hard to remain compliant with the 90-day allowance. Even more challenging is that, unlike other citizens, such as those of the US, Australia and Canada, UK citizens are not used to monitoring the length of their stay in the EU and are likely to spend more time in the EU, also for holidays or visiting family.

What can employers do?

Raising awareness amongst the employee population and your global mobility department is crucial at this stage. Although it may seem straightforward, several aspects of this ’90-day rule’ are much more complex than they appear to be.

When every single day counts, the following questions can create some unnecessary headaches:

• What happens if my flight lands in Madrid at 11:00 pm – will this count as a full Schengen day?
• When does the calculation of the 180-day reference period start?
• How many Schengen days am I still entitled to if I already spent 75 since the beginning of the year?

Therefore, businesses could work on increasing understanding and awareness in various ways: town hall sessions with employees, FAQs, tracking tools, and trainings for global mobility teams to empower them in answering questions from employees, and more.

This will become even more important in 2024, as the external border checks of the Schengen Area are expected to be much more, if not fully, digitalised, and thus overstays will be systematically detected. This is not currently the case at all external borders, where human error during manual checks can still occur.

What if 90 days are simply not enough?

We wish this question had a simple answer. Unfortunately, this is not the case. Solutions may exist. But each case must be assessed against the individual circumstances of the traveller. The solutions may be linked to the travel patterns, the possibility of obtaining a long-stay visa, the willingness and need of obtaining a residence permit in an EU country, family ties with an EU citizen or the citizenship of the traveller as well as the destination EU country.

All of these solutions come with eligibility conditions, processing times and may have an impact on other aspects such as tax or social security. Therefore, they require careful planning and double-checking with the national authorities of the receiving country/countries.

Digital Nomad visas: a solution worth exploring?

Employees may also want to explore solutions on their own rather than employer-sponsored ones. As such, Digital Nomad visas can also be considered. These were primarily developed following the pandemic which sparked firstly an increased need for remote working and, consequently, a desire for more flexible working environments. Several EU countries have such visas in place currently. See our previous blog post here.

Whether they are a solution or not will depend primarily on the travel needs of the potential applicant. Some of these visas may come with a requirement to become a resident in the country issuing it.

Absence rules from the issuing country may also impact the decision-making regarding this immigration route. Yet, these visas exist, and they are an avenue worth exploring on a case-by-case basis. As the regulatory frameworks for Digital Nomad visas are rather new, and the practice is limited, it is possibly time for some pioneering work to explore the limits of these visas and what they can offer.

Need to know more?

Fragomen can help with tailored support for your travellers and is planning a series of blog posts and webinars to highlight compliance challenges for short-term travel to Europe. For further information please contact us at [email protected].

This blog was published on 30 June 2023, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please visit our dedicated COVID-19 site, subscribe to our alerts and follow us on LinkedIn, Twitter, Facebook and Instagram.