EES/ETIAS in Schengen after 1-day overstay?

Question

USA here, 3 years ago (2021) I accidentally overstayed the Schengen area by 1 day (91/180) because I had a suddenly cancelled flight (Origin Gran Canaria Spain), bought a ticket for the next available one (Layover in Portugal) but couldn't enter the passport gate until right before the new flight. I was stamped out without any obvious fanfare or restrictions, even if I, in a panic, did disclose what had happened after realizing what happened. The border guard simply smiled and said "that's alright, but never do it again, you can come back next year" and I was given no obvious ban or fine.

The next few years I was still being allowed in each time, one border guard only taking a pause for a second one time when looking through my passport (maybe calculating days?) but never said anything so I can only assume it WAS flagged in the SIS/VIS but was overlooked because of previous travel history or something..?

I travel to Europe to see family yearly and on subsequent visits, I left way more time on each so that if something like that were to ever happen again, I'd be well prepared and would never even have the CHANCE to overstay and break the law. I always have insurance and exit tickets booked at the same time as entry, and carry existing records with me when traveling.

That said, I'm worried about the EES/ETIAS systems being implemented because I'm well aware that any flag in the system can definitely mean that my applications and entry could easily be revoked/rejected in a similar fashion to the USA'S ESTA. I'm terribly sad that I made such a dumb and uneducated mistake and I've done a lot to ensure that it never happens again. I've seen many others do the same thing accidentally for a day or so, just about as unaware as I once was, and I'm wondering for their sake as well. Will travel simply be revoked for that many individuals?

Error or not, this does imply that I would be automatically excluded from getting the ETIAS, does it not? I'm also aware that the UK's ETA already has a digitized system for such things but I'm not exactly sure what their process is or how such things are handled for previous records prior to it's implementation.

Yes, I am fully aware that I did something stupid. I've tried asking elsewhere for opinions and advice but often get called "entitled" and "stupid" or mocked for my nationality if I even so much as mention it. I'm not here to break the law or skimp the rules or find any specific way to do so. I am however aware of a bilateral agreement that involves Spain, Portugal, the USA, etc and extended the 90/180 days, but I'm not interested in attempting to bring that up to argue my case, as rules are indeed rules.

Anyone have any help/opinions? Thanks so much for reading.

Answer 1

I can only assume it WAS flagged in the SIS/VIS but was overlooked because of previous travel history or something..?

Unlikely. You won't be in VIS because you don't have a visa, and SIS as far as I know would only have a record if you'd been banned for any length of time. The border guard who stamped you out after your 91 day stay would not have said "that's alright" if you'd been banned; instead, you'd have gotten a document describing the duration of the ban and the reasons for it.

Also, if you'd been flagged, you could expect every border guard to scrutinize all of your stamps every time, not "one border guard only taking a pause for a second one time when looking through my passport."

Finally, are you sure it was really 91 days? People often miscount. My mother miscounted this past summer because she counted from the day she left the US rather than from the day she arrived in the Schengen area.

I'm worried about the EES/ETIAS systems being implemented because I'm well aware that any flag in the system can definitely mean that my applications and entry could easily be revoked/rejected in a similar fashion to the USA'S ESTA.

The next time you enter after EES goes into effect, if you enter during the first six months, the border guard is supposed to check your passport stamps to see whether you have less than 90 days available. If I recall correctly, there's no mandate to go back in time and enter visits to the Schengen area earlier than 180 days before your first entry. There's certainly no mandate to create a ban where none exists. And there isn't already an electronic database recording entries and exits, because that's what the EES is for, and it's not yet operating.

Accordingly, there is very little chance that any ETIAS would be refused once ETIAS goes into operation (which will be at least several months after EES does).

Error or not, this does imply that I would be automatically excluded from getting the ETIAS, does it not

No. You would be excluded from getting ETIAS if you had a (current) alert in SIS to prevent you from entering the Schengen area. This alert has to be entered by one of the Schengen member states -- it's not automatic. Since you've visited several times since the overstay, you can safely conclude that there is no such alert. Even if you have a current alert, the exclusion is not automatic but must be confirmed by a person. (See https://eur-lex.europa.eu/legal-content/EN/AUTO/?uri=CELEX:02018R1240-20210803 for the details.)

Anyway, an overstay due to a cancelled flight probably counts as "force majeure," for which your violation would likely be excused, though I believe that depends on the national law of the country through which you are leaving the Schengen area when the overstay is detected. For an overstay in 2021 -- or any past overstay that was not addressed at the time -- there is really nothing to worry about.