Important changes – Bulgaria in Schengen
How to count the allowed visa-free days after a humanitarian extension of the allowed stay has been obtained
A very interesting question was raised recently by one of our clients. He is a citizen of a country, with which Bulgaria has visa-free regime. Such countries are for example USA, Canada, UK, Israel, Australia, New Zealand, many South American countries, etc. So the question is how are the allowed visa-free days counted, especially after a prolongation of the visa-free stay? Let’s dig into the details.
Visa-free stay in Bulgaria explained
As per the Bulgarian Foreigners Law, foreigners from certain countries can stay in Bulgaria visa-free:
The stay of foreigners in the Republic of Bulgaria is based on international treaties or EU treaties with third countries on visa-free regime;Art. 22, par. 1, p. 2 of the Foreigners Law
These treaties are referred to in the Foreigners Law as well:
A visa is not required where this is provided for in Council Regulation (EC) No 539/2001, in other binding EU acts, in an international treaty to which the Republic of Bulgaria is a party or in an act of the Council of Ministers.Art. 8, par. 2 of the Foreigners Law
So far it’s only clear that citizens of the “visa-free” countries can enter Bulgaria. But for how long can they stay?
For how many days can one stay in Bulgaria visa-free
In the Bulgarian Foreigners Law, the term used to describe the 90-days (A.K.A. 90/180 rule) visa-free rule is:
But how is this period being calculated? Many foreigners are confused about the term and are often subject to penalties and even banned from entering Bulgaria. This is mainly due to the poor understanding of this legal norm, but to be honest, the Bulgarian legal texts are quite vague and subject to interpretation.
How to count the 90/180 days the wrong way
Many of our clients tend to believe that the 180-days period starts on 1st of January and runs for 180 days. Then the next period starts on 1st of July and runs for another 90 days. Others believe that the period starts at their first ever entry to Bulgaria and runs for 180 days thereafter. All this is wrong.
How to count the 90/180 days correctly
In line with the Bulgarian Schengen membership, we have to now make reference to regulation (EU) 2016/399. The 90-days rule here is explained much better than it is in the Bulgarian law:
For intended stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period, which entails considering the 180-day period preceding each day of stay, the entry conditions for third-country nationals shall be…Art. 6, par. 1 of regulation (EU) 2016/399
After careful analysis of the EU regulation, it is clear that the 90/180 days are calculated pretty much like a “moving average” or even a “Riemann integral“, where the end point is each particular day and the start point is 180 days prior to that. This is of course for those who know math. For all others, the 90-days are calculated as follows:
The calculation is made daily. For every day, we calculate how many days the foreigner has been in Bulgaria during the past 180 days. The day of arrival, as well as the day of departure, both count as a stay in Bulgaria (art. 6, par. 2 of regulation (EU) 2016/399). For the next day, a brand new calculation is made, taking in consideration that the 180-days period has moved forward by one day. In this way, at any moment, the foreigner should not have been in Bulgaria for more than 90 days during the 180 days period prior to that particular moment/day.
An example of the 90/180 rule
To illustrate how the 90/180 days work, let’s assume that Jack, an Israeli citizen is arriving in Bulgaria on 14.05.2023. As citizen of a visa-free country, Jack is subject to the 90/180 rule for visa-free stay. Jack hasn’t been to Bulgaria before, so for the sake of simplicity, we are starting clean.
When to leave?
So until when can Jack stay in Bulgaria visa-free? Calculating 90 days for each 180-days period prior to his arrival and forward (Excel is doing the math very well), it appears that Jack has to leave Bulgaria on 11.08.2023 at the latest. This is because Jack has been in Bulgaria for exactly 90 days (May 14th – August 11th) during the 180-days period 12.02.2023 – 11.08.2023.
When to return?
And now, even though Shabbat starts on 11.08.2023, as Jack is a law abiding citizen, he manages to leave Bulgaria on this last allowed day from his visa-free stay. So when can Jack return to Bulgaria again? Calculating the 90/180 days rule day by day forward in time, it appears that Jack can return to Bulgaria on 11.11.2023. Did you figure out why? This is because on this day, Jack would have been in Bulgaria for 89 days during the (moving) 180 days period prior to 11.11.2023.
When to leave again?
If Jack arrives in Bulgaria on 11.11.2023, then with every day passed, he would be adding one day to his stay, but he would be removing one day from his previous stay. In this way, he would be considered to have stayed 89 days during the moving 180 days period (every day the same). Until the 89th day of his new stay, after which he would be still adding one day, but will stop removing one day from his previous stay as the moving 180 days period will not cover his previous stay. This is the day when Jack would have to leave the country again.
Complicated? Yes. The Bulgarian border police also has difficulties with the regulations. But now that Bulgarian is in Schengen, the 90/180 regulation will be enforced in full.
What if the foreigner has obtained extension of his visa-free stay
And now let’s answer the core question and the reason for writing this article. What if the foreigner has obtained extension of his allowed visa-free stay. After he leaves Bulgaria, when can he return? How are the 90/180 days calculated? Unfortunately, the Bulgarian legislation is quite vague, so we have to analyze both the national norms, as well as the European regulations.
The Bulgarian legislation about prolongation of the visa-free stay
According to the Bulgarian law, the visa-free stay can be prolonged beyond the 90/180 rule:
The period of stay of persons who have entered the country under visa-free regime may be extended once by the services for administrative control of foreigners for humanitarian reasons related to extraordinary circumstances or in case of state interest in accordance with the procedure established by the regulations for the implementation of the law.Art. 27, par. 2 of the Foreigners Law
Quite clear, isn’t it. But does the additionally allowed term count as stay in Bulgaria? Or these “extra days” are not taken into consideration for subsequent calculations of the 90/180 rule? Unfortunately, the Bulgarian law doesn’t provide a clear answer.
The EU Regulation about prolongation of visa-free stay
The EU legislation sheds some light on the question, although not directly. The Regulation defines which stay is NOT taken into account for the calculation of the 90/180 rule:
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.Art. 6, par. 2 (second sentence) of regulation (EU) 2016/399
Bad news for many
Unfortunately for many of our clients, this means that the period of the prolongation of the visa-free is considered as stay in Bulgaria for the subsequent implementation of the 90/180 rule. This is because, the prolonged visa-free stay is neither a residence permit nor a long-stay visa.
Even worse, if the foreigner leaves Bulgaria early and wants to return prior to the expiration of his prolonged visa-free stay under art. 27, par. 2 of the Foreigners Law, even this would not be possible. This is because the said prolongation is prolongation of stay, not of entry, as foreseen in art. 6, par. 5, (c) of regulation (EU) 2016/399.
We believe that we have explained in full how the 90/180 rule is implemented. As the legal matter is quite complicated, especially after a prolongation of the visa-free stay, if you need any assistance, please don’t hesitate to contact us.