Short recap: 90/180 day rule

As highlighted in our previous article Travel and Work within the Schengen Area: British citizens, British citizens can access and reside in the territory of the countries of the Schengen Area for a duration of 90 days in any 180-day period without having to apply for a short-term visa (the so-called ‘Schengen visa’ or ‘visa type C’).

In practice, the enforcement of this rule depends on data collection, data distribution and data monitoring throughout the Schengen Area.

How is travel within the Schengen Area currently monitored?

Travel documents of third-country nationals must be stamped on entry and exit. This obligation is applicable to all member states of the Schengen Area.

The entry and exit stamps are then examined by border guards, to verify, by comparing the dates of entry and exit, that the person has not exceeded the maximum duration of authorised stay within the Schengen Zone.

Although compliance with the 90/180 days rule can already be monitored today, the system is outdated and heavily reliant on human assessment.

Several systems have already been implemented in recent years to facilitate integrated border management. However, up until now, the focus of these changes has been on facilitating travel in practice while safeguarding security (e.g. eGates, matching biometric identifiers of travellers with their travel documents, etc).

It is expected that the planned introduction of an Entry/Exit System (EES) and an Electronic System of Travel Authorisation will further strengthen the ability to monitor and enforce the rules regarding travel of third-country nationals within the Schengen Area.

What will the Entry/Exit System bring to the table?

EES is currently expected to launch on a phased basis from the end of 2024, however the exact date is still to be agreed and has been pushed back previously.. It is an automatic registration system that will collect information of third-country nationals admitted for a short stay, including those who require a visa and those who are visa exempt, each time they cross an external border of the Schengen Area. Recorded information will include:

• the individual’s personal information, travel document and biometric data;

• the time and place of entry and exit; and

• previous refusals of entry including date, time, place, refusing authority and reasons for refusal.

Using up-to-date technology, EES will create a record of travel history, calculate the duration of authorised stay, flag ‘overstayers’ (i.e. travellers who have exceeded the maximum duration of their authorised stay), generate alerts when the authorised stay has expired and record refusals of entry.

EES will, in time, replace the current system of manual passport stamping and will allow for efficient and effective border management and improved detection of document and identity fraud. It is also expected to deliver better monitoring of unauthorised short stays of third-country nationals. The aim of the system is to make the external borders stronger, smarter and more secure.

What will the European Travel Information and Authorisation System (‘ETIAS’) bring to the table?

ETIAS was previously expected to be operational in November 2023. However, due to the delay in launching EES, ETIAS is currently not likely to be in effect before mid-2025 at the earliest. It is a system that will collect and screen personal information of third-country nationals who are exempt from requiring a Schengen visa.

To obtain valid travel authorisation, Schengen visa exempt third-country nationals or a third party will need to pay a travel authorisation fee and supply data in advance of any intended travel, using an online application form or electronic application, including (but not limited to):

• the individual’s personal information;

• travel document information; and

• the Member State of first intended stay.

This information will be verified and checked for hits against security watchlists and other systems to ensure that entry conditions are met prior to issuing the travel authorisation.

The travel authorisation will be issued for a period of three years or until the end of validity of the travel document registered during the application (whichever comes first) and shall be valid for entering the territory of all Member States.

After ETIAS becomes operational, the current visa exemptions will remain in force but travel for visa exempt nationals will only be possible if the individual holds a valid ETIAS travel authorisation.

An appeal process will be made available for those who wish to challenge an ETIAS travel authorisation refusal. Alternatively, they may choose to make a further application, including submitting further information/evidence on their changed circumstances or other reasons why they meet the requirements for the authorisation to be granted.

How will these systems impact business travel for British citizens?

The introduction of these systems will not alter the underlying rules regarding the duration of allowed stay within the Schengen Area for third-country nationals.

The automatic registration of data will however increase transparency and, if implemented consistently, close off any possibility of entering the Schengen Area as an overstayer or remaining within the area as an overstayer without penalty.

For British citizens and the businesses they work for, the importance of planning business travel, screening travel history and verifying the need for additional requirements in advance will increase after the implementation of EES. This is because the automated calculator which is part of the EES will inform the authorities:

• on entry, of the maximum duration of authorised stay;

• during checks or verification within the Schengen Area, of the remaining authorised stay or duration of overstay; and

• on exit, of any overstay.

As part of the rollout of EES, a third-country national will be able to consult an online tool available on the EES website to verify the maximum duration of authorised stay. This will most likely render the current Schengen Calculator obsolete and will hopefully improve user experience for travelling third-country nationals.

Lastly, ETIAS will have to be taken into consideration as an additional formality and cost to enable business travel to the Schengen Area for British citizens.

We will be discussing EES and ETIAS on 23 January 2023 in our webinar, British citizens travelling for business in the Schengen Area. For further information and to book, click here.

If you have any specific queries about travel and work within the Schengen Area, please get in touch with a member of our Immigration Team.