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RESIDENCY PERMITS

Brexit: Five key things to know about applying for residency in the EU

As tens of thousands of Brits across Europe prepare to begin the process of applying for residency rights to ensure their right to remain after Brexit, here are five key points you should know, thanks to British in Europe.

Brexit: Five key things to know about applying for residency in the EU
Photo by Markus Spiske

British nationals across Europe are facing a crucial time over the coming weeks and months as most face the prospect of having to apply for residency or at least register with authorities as a way of ensuring their future in the EU.

While the Withdrawal Agreement was ratified in January this year EU countries have the task of implementing the rights it guarantees British Citizens in the EU.

And things are moving slowly, with the UK having made more progress in registering EU citizens.

“Across the EU things are very much further behind than in the UK,” Kalba Meadows from British in Europe told a parliamentary committee this week.

“In fact there are only three EU countries where implementation (of the Withdrawal agreement) has begun: Italy, Netherlands and Malta,” she said

Other countries are at different stages with some having legislation in place to ensure the rights of Brits are guaranteed whilst others do not, she explained.

British in Europe have helped spell out some important points on the issue of residency rights and the procedures that British readers should be aware of. The points below are taken from British in Europe's Guidance note.

1. There's no minimum duration for living in a country before December 31st 2020

You will be covered by the WA for residence if you (a) lived legally (see above) in your host country before the end of the transition period and (b) you continue to do so afterwards. All possible situations where the right of residence stems from free movement rules are included.

This includes ordinary residence, whether you’re employed, self-employed, self-sufficient or a student; permanent residence; residence as a family member; and residence under the special rules for jobseekers.

There is no minimum duration for having lived legally before the end of the transition period. Example: you move to Finland to take up employment on December 1st 2020 and remain there after December 31st 2020. You are covered by the WA.

2. You don't actually need to be physically in the EU on December 31st

You don’t need to be physically present in your host country at the end of the transition period to be covered by the WA, as long as you remain legally resident on that day.

This is because as a legal resident you are allowed to be absent from your host country for certain periods without losing your residence rights: As an ordinary resident, you can be away from your host country for no more than 6 months every year without losing your resident status.

You’re allowed one longer absence of up to 12 months in the 5 year period for ‘important reasons’: eg childbirth, serious illness, study, vocational training or posting elsewhere (this is not an exhaustive list).

Once you have acquired permanent residence under the Withdrawal Agreement, you can be away from your host country for 5 years – an increase on the 2 years permitted for EU citizens – and still retain the right to return and keep your rights of permanent residence.

3. Rights don't change if you lose or change your job

Your right of residence under the WA in your host country is not affected if you change your status. Your ‘status’ for this purpose represents the category under which you are exercising your free movement rights: employed, self-employed, non economically active and self-sufficient or student.

So your rights are not affected if, for example if you stop being a student and start work, if you stop working and become non-economically active and self-sufficient, or if you move between the categories in any other way.

You can also hold more than one status at one time – for example you can be a student who is simultaneously self-employed. There are no procedural consequences attached to a change of status – you don’t have to report it to your registration authority or apply for or request a new residence document.

4. The qualifying period for permanent residency doesn't have to be the last 5 years

If you already hold permanent residence status under current free movement rules at the end of the transition period, you will be eligible for permanent residence status under the WA.

If you have not been resident long enough to acquire permanent residence status under the WA at the end of the transition period, you can continue to build up your years until you reach 5 years, when you will be eligible for permanent residence under the WA.

Periods both before and after the end of transition will be taken into account. One very important precision is that the qualifying period of residence does not have to be immediately before the moment when the right of permanent residence is claimed.

This means, for example, that if you have been resident in your host country for over 5 years but your circumstances changed recently, leaving you struggling to meet the conditions, you can call upon an earlier period of residence during which you did meet the conditions to use as your qualifying period.

5. Deadlines could be crucial depending on the country you are in

13 countries are adopting a constitutive system.

We still await the published list, although most countries now have stated which they will adopt. In a constitutive scheme you acquire residence status only if (a) you make an application for it and (b) that application is granted. In other words, the ‘source’ of your residence status and the rights that stem from it is the decision on your application made by the registration authority in your host country. It’s that decision, and the residence document that is issued as a result, which confers your residence status.

This is how ‘settled status’ works in the UK, and it also corresponds to the type of system used to deal with residence applications in EU member states from third country nationals. In a constitutive scheme, if you miss the deadline to apply for a new status under the WA or your application isn’t successful you will have no residence status and therefore in principle no legal right to reside.

This means that, if your host country is operating a constitutive scheme, it is crucial that you meet the deadline for applying for your new residence status. This deadline cannot be earlier than 30 June 2021 (6 months after the end of the transition period) and in some host countries may be later – but don’t miss it!

British in Europe stress that it's important to read their full guidance note to understand all the issues around gaining residency in an EU country. You can read the full document HERE.

 

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EUROPEAN UNION

Non-EU family members of EU citizens can obtain long-term residence, court rules

The Court of Justice of the European Union has ruled that non-EU citizens who have residence rights in an EU country as family members of an EU national can acquire EU long-term residence.

Non-EU family members of EU citizens can obtain long-term residence, court rules

EU long-term residence is a legal status that non-EU citizens can obtain if they have lived continuously in an EU country for at least five years, have not been away for more than 6 consecutive months and 10 months over the entire period (although the rules are different for Britons covered by the Withdrawal Agreement), and can prove to have “stable and regular economic resources” and health insurance. Applicants can also be required to meet “integration conditions”, such as knowing the language.

Long-term residence status grants equal treatment to EU nationals in areas such as employment, self-employment or education, as well as the possibility to move to other EU countries under certain conditions. 

But the procedure to get this status is not always straight-forward.

In this case, a Ghanian national who had a residence permit in the Netherlands because of a ‘relationship of dependency’ with her son, a Dutch citizen, saw their application for EU long-term residence refused.

The Dutch authorities argued that the residence right of a family member of an EU citizen is ‘temporary in nature’ and therefore excluded from the EU directive on long-term residence.

The applicant, however, appealed the decision and the District Court of The Hague referred the case to the EU Court of Justice for an interpretation of the rules.

On Wednesday the EU Court clarified that non-EU family members of EU citizens who live in the EU can indeed acquire EU long-term residence.

The EU long-term residence directive excludes specifically third-country nationals who reside in the EU temporarily, such as posted workers, seasonal workers or au pairs, or those with a residence permit that “has been formally limited”.

A family member of an EU citizens does not fall into this group, the Court said, as “such a relationship of dependency is not, in principle, intended to be of short duration.”

In addition, EU judges argued, the purpose of the EU long-term residence directive is to promote the integration of third country nationals who are settled in the European Union.

It is now for the Dutch court to conclude the case on the basis of the Court’s decision, which will apply also to the other EU member states.

The European Commission proposed in April to simplify the rules on EU long-term residence, especially when it comes to obtaining the status, moving to other EU countries and the rights of family members. 

These new measures are undergoing the legislative procedure have to be approved by the European Parliament and the EU Council. These rules also concern Britons living in the EU as family members of EU citizens.

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