Schengen 90/180 - onus of proof. (1 Viewer)

[nicholsong]

I am starting a new thread as this only affects UK Citizens resident, but not Citizens, of EU countries.
This thread only applies to non-Shengen Citizens resident, but not Citizens of, Schengen countries.

They are permitted to stay in their host country indefinitely, but subject to 90/180 rule elsewhere in Schengen.

Those people can be controlled when crossing a Schengen border outside their host country.

When crossing internal Schengen borders there is normally no control and no evidence/ record of stay outside one's host country.

However, if one were challenged about possibly exceeding 90 days where does the burden of proof lay? On the authorities to prove one has exceeded or on the individual to disprove exceecding?

Please no guesses or assumptions, just reference to the onus of proof in individual countries.

 

[bigtwin]

gus-lopez?

Ian

 

[Carpmart]

I am starting a new thread as this only affects UK Citizens resident, but not Citizens, of EU countries.
This thread only applies to non-Shengen Citizens resident, but not Citizens of, Schengen countries.

They are permitted to stay in their host country indefinitely, but subject to 90/180 rule elsewhere in Schengen.

Those people can be controlled when crossing a Schengen border outside their host country.

When crossing internal Schengen borders there is normally no control and no evidence/ record of stay outside one's host country.

However, if one were challenged about possibly exceeding 90 days where does the burden of proof lay? On the authorities to prove one has exceeded or on the individual to disprove exceecding?

Please no guesses or assumptions, just reference to the onus of proof in individual countries.

I think you need to be able to defend yourself, so my logic is that I have to keep the evidence to prove my movements.

As the spouse of an EU Passport holder I have the right to accompany her as she roams freely through the EU, the equivalent of pre Brexit status for her and I. Had an almighty bun fight again this week with French passport at the tunnel. They refused to allow me through without stamping my passport. Marriage certificates, French version of EU Directive 2004/38 EU handily highlighted for them, they are still adamant I need a stamp.

 

[Jim]

gus-lopez?

Ian

Ian, what are you shouting Gus up for. You know he'll say if the borderforce don't believe you, beat them to death with anything to hand.

 

[bobandjanie]

I think you need to be able to defend yourself, so my logic is that I have to keep the evidence to prove my movements.

As the spouse of an EU Passport holder I have the right to accompany her as she roams freely through the EU, the equivalent of pre Brexit status for her and I. Had an almighty bun fight again this week with French passport at the tunnel. They refused to allow me through without stamping my passport. Marriage certificates, French version of EU Directive 2004/38 EU handily highlighted for them, they are still adamant I need a stamp.

I've seen this alot on Citizen Advise Spain, they have been stamping passports even though your a resident, some by accident and some by idiot's that don't know the rules.
Some people stamped out of Spain and not back in, they just say don't worry as long as you have proof of when and where you was at a given date.

Same as in your case the freedom to roam, just keep evidence you was roaming and when you cross a border try and get a stamp, taking plenty of photographs with time and location ......... together. Bob.

^{_{Subscribers  do not see these advertisements}}

 

[Ridgeway]

Here i know i could refer to the road tax on >3.5t camper as each day you are out of the country you can claim your road tax back. You do this by proving you were in XYZ location for so many days and then they reimburse you the number of days you weren’t here in CH. As the tax authorities accept this then in theory it could be used as proof of you only being out of the country for a certain number days, i know this as some crafty old Swiss camper said he was always careful of how many days he claimed back

 

[Raul]

Mobile phone as it crosses borders gets a welcome message from the network, that shows your movements.

 

[Nigel P]

I am starting a new thread as this only affects UK Citizens resident, but not Citizens, of EU countries.
This thread only applies to non-Shengen Citizens resident, but not Citizens of, Schengen countries.

They are permitted to stay in their host country indefinitely, but subject to 90/180 rule elsewhere in Schengen.

Those people can be controlled when crossing a Schengen border outside their host country.

When crossing internal Schengen borders there is normally no control and no evidence/ record of stay outside one's host country.

However, if one were challenged about possibly exceeding 90 days where does the burden of proof lay? On the authorities to prove one has exceeded or on the individual to disprove exceecding?

Please no guesses or assumptions, just reference to the onus of proof in individual countries.

“The (burden of) proof weighs on the plaintiff.”A doctrine allocating the burden of proof to the party bringing a charge or instigating a legal action.
This tends to be the doctrine adopted by the ICJ.

 

[gus-lopez]

The onus has always been on you to prove where you have been ,dates,times,etc.

Ian, what are you shouting Gus up for. You know he'll say if the borderforce don't believe you, beat them to death with anything to hand.

Only if I know categorically that i am 100% correct & therefore paying good money to someone who doesn't know the rules & laws of his job.

 

[nicholsong]

The onus has always been on you to prove where you have been ,dates,times,etc.

Only if I know categorically that i am 100% correct & therefore paying good money to someone who doesn't know the rules & laws of his job.

Nigel P and Gus Lopez seem to be of opposite opinions.

It looks as though I shall have toask the Schengen authorities what their 27 Members apply in the situation.

^{_{Subscribers  do not see these advertisements}}

 

[Badknee]

Ian, what are you shouting Gus up for. You know he'll say if the borderforce don't believe you, beat them to death with anything to hand.

Or nuke ‘em, he does like to nuke people

 

[Ingwe]

This is quite a tricky one, especially for lawyers. As there seems to be no common policy for penalties for overstaying between the Schengen countries, the actual penalty will depend on the country seeking to impose the penalty. Therefore the legal system of that country will determine who bears the burden of establishing the overstay. And strictly, that burden is practically confined to court proceedings.

The general position, as most British lawyers will recognise, is that he who asserts must prove. But this general rule has been reversed in some instances, for example, in sex discrimination cases where the burden has shifted requiring employers to establish that they don’t discriminate rather than the aggrieved employee needing to demonstrate discrimination.

So you arrive at Calais, the smiling gendarme puts your passport under the scanner and says “you have been in France for more than 90 days, monsieur”, nervously edging his hand down to his holstered Glock 9mm. “Prove it, you assert, boldly”. He points out the stamps in your passport and demonstrates by the use of his Carrefour diary, that more than 90 days has elapsed since you entered France or indeed another Schengen. “There you are rosbiff. €198 please or you will arrested” “And that doesn’t include the penalty for the streaky bacon and cheddar you smuggled in three months and a day ago. That’s extra!”
I reckon, in that scenario, arguing the toss as to who bears the burden of establishing the overstay will vary depending on the different assertions. If you say the gendarme’s mistaken, you will need to prove this. One thing that seems certain, from the link, is that every overstay is noticed even though the penalty varies between member states.

What Are the Consequences of Overstaying in the Schengen Area?

Getting a Schengen Visa is never easy. There are a lot of documents you will need to collect and requirements you must meet. There is the interview and then the wait for visa processing. However, once you get the visa, you feel rewarded and convinced everything was worth it. To many, the 90-day...

www.schengenvisainfo.com

Let’s hope that there is ultimately some clarity on this matter before long. I expect an E.U. Directive at some point.

 

[Nigel P]

Nigel P and Gus Lopez seem to be of opposite opinions.

It looks as though I shall have toask the Schengen authorities what their 27 Members apply in the situation.

Rather than expressing an opinion I was referring to the general stance taken by the International Court of Justice, such an example as attached:

Burden and Standard of Proof
In allocating the burden of proof, the Court follows the basic rule of actori
incumbit probatio: that the party putting forth a claim is required to establish the
requisite elements of law and fact. This may be rendered more difficult, in those
cases brought before the Court by Special Agreement, by the absence of an
identifiable plaintiff/defendant relationship, but the basic approach remains that
each party bears the burden of proving the facts on which it relies in making its
case. In the Minquiers and Ecrehos case,1 for example, the Special Agreement
between France and the United Kingdom asked the Court to determine which
country had sovereignty over certain rocks and islets. The Special Agreement
further provided that the written proceedings be “without prejudice to any
question of the burden of proof”.2 In its judgment the Court held that as both
parties claimed sovereignty, each was required to “prove its alleged title and the
facts upon which it relies.”3 Judge Levi Carneiro elaborated on this basic rule in
his separate opinion, stating that “it is for the Party interested in restricting the
application of an established rule or of a recognized fact to prove that such a
restriction is valid.”

 

[nicholsong]

This is quite a tricky one, especially for lawyers. As there seems to be no common policy for penalties for overstaying between the Schengen countries, the actual penalty will depend on the country seeking to impose the penalty. Therefore the legal system of that country will determine who bears the burden of establishing the overstay. And strictly, that burden is practically confined to court proceedings.

The general position, as most British lawyers will recognise, is that he who asserts must prove. But this general rule has been reversed in some instances, for example, in sex discrimination cases where the burden has shifted requiring employers to establish that they don’t discriminate rather than the aggrieved employee needing to demonstrate discrimination.

So you arrive at Calais, the smiling gendarme puts your passport under the scanner and says “you have been in France for more than 90 days, monsieur”, nervously edging his hand down to his holstered Glock 9mm. “Prove it, you assert, boldly”. He points out the stamps in your passport and demonstrates by the use of his Carrefour diary, that more than 90 days has elapsed since you entered France or indeed another Schengen. “There you are rosbiff. €198 please or you will arrested” “And that doesn’t include the penalty for the streaky bacon and cheddar you smuggled in three months and a day ago. That’s extra!”
I reckon, in that scenario, arguing the toss as to who bears the burden of establishing the overstay will vary depending on the different assertions. If you say the gendarme’s mistaken, you will need to prove this. One thing that seems certain, from the link, is that every overstay is noticed even though the penalty varies between member states.

What Are the Consequences of Overstaying in the Schengen Area?

Getting a Schengen Visa is never easy. There are a lot of documents you will need to collect and requirements you must meet. There is the interview and then the wait for visa processing. However, once you get the visa, you feel rewarded and convinced everything was worth it. To many, the 90-day...

www.schengenvisainfo.com

Let’s hope that there is ultimately some clarity on this matter before long. I expect an E.U. Directive at some point.

Ingwe

You chose to give an example of somebody at Calais, an external Schengeen border, with stamps in the passport.

.If you re-read my OP iI was referring only to non-EU Citizens, but EU residents, travelling within Schengen but exceeding their permitted 90/180 days outside their host country, without any stamps in passports.

 

[Ingwe]

Ingwe

You chose to give an example of somebody at Calais, an external Schengeen border, with stamps in the passport.

.If you re-read my OP iI was referring only to non-EU Citizens, but EU residents, travelling within Schengen but exceeding their permitted 90/180 days outside their host country, without any stamps in passports.

True I did give an example as described. But in what way does the general point I make about assertions needing to be proved, not hold for an E.U. resident? If there is a 90/180 restriction and an official asserts there has been a breach, they’d need to demonstrate this. If this was denied, then the denier would have the burden of proof shifted to them.

^{_{Subscribers  do not see these advertisements}}