Probable issues when exiting Schengen area on expired residence permit

Question

Coming here from my question on travel.stackexchange

My girlfriend is a Mexican passport holder.

She studied in Netherlands for her masters and she possesses a residence card/permit from The Netherlands (the expiry date on the card says 1st Dec. 2016).

She is living with me at the moment in Berlin and already has her tickets to fly back to Mexico on 30th Nov. 2016 (1 day before the "expiry date" on her Dutch residence card).

She received an email yesterday (2nd Nov. 2016) from her University in Netherlands that because she's not a student at the University anymore, her status has been informed to the IND (Immigration and Naturalization service of Netherlands) and that her residence card is invalid from 1st Sept. 2016 (we both graduated in Aug./Sep. 2016) doesn't matter what "expiry date" is mentioned on her residence card. So technically she's leaving illegally since past two months in Berlin with me!

My question is: Would there be an issue when she'll go through border/passport control in Berlin (on 30th Nov. 2016)?

I understand that Mexican nationals enjoy 90 days in 6 months tourist stay in Schengen but this period doesn't automatically start after your long-term residence permit or visa expires. So is it necessary that she leaves Schengen area (to lets say UK) and enter again as a tourist before her flight out of Berlin.

Answer 1

It's not obvious that she is actually staying illegally in Berlin at the moment. This requirement to exit and reenter to trigger the 90-day visa-free short stay is nowhere to be found in the Schengen regulations. It's true that the Netherlands officially considers this to be necessary but other countries do not. Furthermore, invalidating a student residence permit before its expiration is also something not all countries do.

In practice, it's not at all clear how all this is supposed to be enforced. Some countries are definitely fine with doing what your girlfriend did but even if Germany isn't when it comes to its own residents, I don't think there is any easy way for the border guards in Berlin to decide which rules apply or check the status of her Dutch residence permit. For all these reasons, I think she is unlikely to encounter any problem if she exits the Schengen area through any other country than the Netherlands.

Finally, doing a round trip to the UK to get some peace of mind could be a good idea if your girlfriend's permit hadn't expired yet. But now that it has, there is no point in doing that: She would also need to go through a regular Schengen exit check so that in the unlikely event that she would in fact run into trouble, she would be stuck in the UK and unable to use her ticket to Mexico!