Understanding the Difference Between Regular and Irregular Status in Spain
Understanding the difference between being “regularly” and “irregularly” in a country is crucial for maintaining your legal status. Hopefully you will understand the Schengen 90/180 Day Rule better after reading this post.
Being “regularly” or “irregularly” refers to the legal status of a person’s stay in the country. When you enter in Spain as a tourist, you will be allowed to stay here for 90 days. During those 90 days you will be regularly in Spain. On day 91 you will become irregular, as your tourist days in the Schengen countries are over, but you also don’t own a residency permit or a visa that would allow you to stay for longer than 3 months.
The Schengen 90/180 day rule
The Schengen Area allows a non-EU/EEA citizen to stay for a maximum of 90 days within any 180-day period. This is what people usually call the “Schengen 90/180 day rule”.
This 180-Day Period is a rolling timeframe that moves forward with each day. It’s not a fixed calendar year or any other specific period, but starts counting since the moment a non EU/EEA citizen arrives to a Schengen country.
For example, if you enter Spain on June 1st and stay for 30 days, those 30 days will count as part of the 180-day period. If you leave for the UK for 10 days and return to Spain, you continue counting your Schengen days. Your first day back in Spain from the UK will be your 31st day (of 90) in the Schengen area, leaving you with 60 days remaining. Don’t make the mistake of counting from 0 again, as you would become irregularly in Spain if you thought you still had 90 days when coming back from the UK after just 10 days.
Following this example, if you left to the UK for 90 days and you came back to Spain on day 91, your Schengen days would start counting from 0, and in this case you would have 90 days again, not 60. Of course, if you spend 60 days in Germany and 20 days in Italy before coming to Spain to apply, your Schengen days will be over soon after the moment you arrive to Spain.
Practical example of Schengen Day Calculations
It is important that you calculate properly. There are websites where you can calculate your Schengen visa days, for example visacalulator.com , to make sure you comply with the Schengen 90/180 day rule.
Let’s give you an example:
Arriving in Spain on January 1st, 2024, you stay until January 20th before leaving for the US (non-Schengen country). – 20 days
Traveling to France from February 10th to 15th, you then return to the US. – 6 days (both the arrival and departure days count).
Returning to Spain on April 1st, you are ready to apply for the Digital Nomad Visa (without a return ticket to the US, as you plan to live in Spain after approval).
In this example, you have used 25 of your 90 Schengen days. When you arrive in Spain in April, you have 64 Schengen days left before you must either leave or, if approved, stop worrying about your Schengen days in Spain.
Applying for Residency Before Becoming Irregular – why is the Schengen 90/180 day rule important when applying for a Residency Permit from within Spain?
If you are coming to Spain to apply for the Digital Nomad Visa from within Spain, It is very important to apply before becoming irregular, since this is a direct and non-appealable reason for denial. You can comply with all the requirements, but if you apply having spent too many days in the Schengen zone, you will be denied. “Non appealable” means that your denial will not really have the opportunity to become an approval. When you submit an appeal you have to submit proof that what you are saying is real, and in this case, if the reason for denying your application is that you were over your Schengen days, that’s it and you obviously cannot prove otherwise.
Take into account that not all residency permits can be applied for from within Spain, but this is a subject for another blog post.
You can apply on day 89 or 90 (not that I recommend this, but it’s an option). Doing this means you would be irregular while waiting for the Spanish administration’s answer to your application. If they approve you, you’ll be fine and the next step is to get register at the city hall and get the TIE (foreign identity card). Should your application for residency be denied, you have 15 days to leave the country.
If your 90 days in the Schengen countries are coming to an end and you are still not ready to apply (waiting for documents that you need for the application), I recommend that you leave to a non-Schengen country with enough days to come back to Spain and apply or even apply from the consulate of your residency demarcation.
Understanding Residency Limits in Other Schengen Countries
Even with an approved residency permit in Spain, you are still considered a tourist in the Schengen countries! You will be a resident in Spain, not in the rest of the Schengen countries. This means that if you want to stay in, for example, Italy, for more than 90 days, you will have to apply for a residency there.
It also means that you should still be careful with your travel plans throughout Europe. Although we don’t have border control, it is always better to comply with the law and don’t stay longer than 90 days every 180 days in the Schengen zone.
If in the future you need to apply for a long term residency permit it is easy for countries to know where you have been during the years.
In conclusion, understanding and adhering to the 90-180 days rule is essential for any non-EU/EEA citizen wishing to stay in Spain and the Schengen area. It is crucial not only for maintaining your legal status but also for avoiding any legal or administrative issues that might hinder future visits or residency in the region. Utilize tools like online visa calculators to manage your stay days effectively and plan ahead for any residency applications.
