HEALTHPLAN MAGAZINE

The 90-day rule applies to visitors to Spain from non-EU countries, including UK nationals, from January 2021. This regulation restricts the length of stay in Spain to 90 days within a 180-day period. The rule applies to non-EU nationals who require a visitor visa to enter Spain, like Russian, Chinese, or Indian citizens, and those who don't need a visa, such as visitors from Canada, Israel, the United States, or the UK.

The rule aims to control the time spent in the Schengen zone, of which Spain is a part. If someone wishes to stay longer than 90 days within 180 days in Spain, they must obtain a long-stay visa. Such a visa provides residency status for a specified period based on factors like work, research, study, or sufficient income to support expenses.

Visas that meet this requirement include the non-lucrative visa, golden visa, student visa, entrepreneur visa, digital nomad visa, and employment visa. Failure to obtain one of these visas and staying beyond the 90-day limit means the visitor is ‘overstaying’. It is important to understand the consequences of overstaying in Spain to avoid any penalties or problems during future travel.

What happens when you exceed your 90-day stay in Spain?

Overstaying your 90-day visa limit in the EU or Schengen zone, without a residency permit, makes it official that you have violated the visa regulations.

With the advent of modern technology, Spanish border guards scan passports upon entry and exit from the EU, making it nearly impossible to slip through the cracks.

The upcoming EES scheme is set to make the process even more stringent. While the EU has several penalties for overstayers, the actual enforcement varies among member states.

However, Spain has historically been one of the more lenient countries, showing flexibility with dates during the COVID-19 pandemic.

Theoretically speaking though, overstaying your 90-day visa limit in an EU country could lead to several penalties:

• Deportation - the EU countries reserve the right to deport overstayers or provide a specific timeframe to leave. However, deportation is uncommon for those not working or claiming benefits, and they are usually advised to leave as soon as possible.
• Entry ban - EU countries can impose a complete ban on re-entry for overstayers for up to three years, or even longer, in some cases. Such bans are usually imposed on people who have stayed beyond a considerable period or committed a crime during their overstay.
• Fines - In addition to other penalties, fines vary according to the country.
• Prison sentences - in rare cases, overstayers may face up to a year in prison, especially if they have worked for several months or committed any criminal offence.

Is there any flexibility?

During the COVID-19 pandemic, Spain provided some relief for third-country nationals who overstayed their 90-day limit. The state bulletin granted a brief grace period of three months during the state of alarm. Although this pandemic grace period is no longer in effect, there are still some exceptions. If you have reasonable and justified reasons for not adhering to the 90-day limit deadline, it is less likely that any harsh penalties would be applied.

Spanish lawyer, Romulo Parra, has confirmed that Spain offers visa extensions to third-country nationals who experience unforeseen circumstances such as illness or accidents. However, it is important to note that these extensions are not granted easily, and you must provide evidence to support your claim.

Despite the 90-day limit rule, Spain has earned a reputation for being relatively lenient with non-EU nationals, particularly Americans and Australians, when it comes to overstaying for a few days. However, this should not be taken as a guarantee, and it is always better to adhere to the 90-day rule to avoid any legal problems.

How to stay within the 90-day limit in Spain and avoid overstaying

To avoid accidentally overstaying your 90-day limit in Spain, it is essential to understand the Schengen rules. For example, your arrival date counts as the first day of your stay, even if you land just before midnight. Similarly, the day you leave counts as the next day if you depart anytime after midnight, even if it's in the early hours of the morning. To keep track of your permitted stay, you can use a convenient calculator that will tell you how many more days you have left in a 180-day period.

While it's essential to follow these guidelines, unforeseen events can occur, as the pandemic has taught us. Spain has shown leniency during the pandemic and has been accommodating to Britons living in Spain during the post-Brexit transition. If a situation arises where you must stay longer than the allowed 90 days, you should be honest and upfront about the situation. Punishments for overstaying are rare, and Spain is known to be less strict on precise entry and exit dates, provided you are not working, claiming benefits, or engaging in illegal activities.

However, it's essential to remember that all EU member states, including Spain, have the right to punish those who intentionally overstay their 90-day limit within the 180-day period. Such an action is considered a serious violation of the law and can result in hefty fines, expulsion, or even a prison sentence.

What are the consequences of ‘overstaying’ the 90-day period?

Article 53.1.a of Spain's Immigration Bill clearly states that staying beyond the permitted 90-day limit is a serious legal violation that carries severe consequences.

The penalties for overstaying can range from fines of 500 to 10,000 euros, and in certain cases, the offender may face expulsion from Spain or a ban from the Schengen area lasting anywhere from six months to five years.

It is important to note that the gravity of the punishment depends on the severity of the violation. Minor wrongdoings or unintentional overstays may result in a fine of less than 500 euros. On the other hand, serious breaches, such as overstaying for an extended period or violating the terms of a visa, can lead to substantial penalties ranging from 10,000 to 100,000 euros.

Visitors to Spain must adhere to the 90-day limit and follow all immigration laws to avoid these severe consequences. In recent years, Spanish courts have tended to favour imposing fines or even jail sentences on overstayers, rather than deportation. The Spanish government has also clarified that individuals who overstay their visa may be subject to either a fine or deportation, but not both.

To avoid any complications or unexpected events, it is advisable to book your return flight well before the expiration of your 90-day stay in Spain, especially if you do not intend to apply for residency in the country. This will give you some leeway in case of unforeseen circumstances such as flight cancellations or delays.