Immigration

A foreign woman entered the Schengen territory and then applied for a study stay . The Administration did not even consider the merits of her application because it deemed it inadmissible as untimely, understanding that she had already exhausted the legal stay of 90 days and, in addition, had exceeded the "margin" of one previous month mentioned in Law 4/2000, art. 30. 1 (LOEX) for this type of procedures. The applicant appealed. At

first instance , the court ruled in her favor, following her argument. It stated that the calculation of days should start the day after entry and that, furthermore, the days had to be counted as business days (not natural days), applying subsidiarily the rules of the Administrative Procedure Act (LPAC, art. 30). Then, the matter reached the TSJ of the Valencian Community (13-12-23), which (non-natural), applying suppletorily the rules of the Law of Administrative Procedure (LPAC, art. 30). Then, the matter reached the TSJ of the Valencian Community (13-12-23), which kept the main idea of the appellant and the court and rejected the inadmissibility due to lateness and ordered the proceedings to be sent back so that the Administration could assess the requirements of the application (although partially accepting some arguments from the Administration).

Finally, both parties appealed to the Supreme Court (SC). The SC establishes doctrine and clarifies a key point, those 90 days are not an "administrative deadline ", but a material limit of physical presence , so the computing rules of the LPAC do not apply. Interpreting directly Regulation (EU) 2016/399 (Schengen Regulation), the SC says that the day of entry counts as the first day of stay and that the 90 days are natural, not working days. With this rule, in this specific case, it concludes that the application was submitted late , and confirms the Administration's actions.