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EU Commission: ‘A stamp in a British passport does not put residency rights into question’

After hundreds of British residents of EU countries had passports stamped when returning from the UK in the New Year the EU Commission has responded to The Local's request for information and advice on their behalf. Here's the response in full.

Published: 9 January 2021 13:26 CET
Updated: 9 January 2021 15:04 CET

EU Commission: 'A stamp in a British passport does not put residency rights into question'

Photo: AFP/UK Passport Office

In recent days it has emerged that scores of British nationals living in EU countries have wrongly had their passports stamped with a date of entry when returning home. One couple was told to contact a lawyer by consular officials in Germany.

British nationals coming to the EU have previously not needed to have their passports stamped, but Brexit and the end of freedom of movement has changed things somewhat.

While visitors are now subject to the Schengen area's 90-day rule, meaning they can spend a maximum of 90 days out of every 180 in the Schengen area, those Britons legally resident in the EU are not, and therefore should not have their passports stamped.

But since January 1st scores of UK residents in the EU have seen immigration officials stamp their passports with an entry date when returning from the EU.

Many British nationals have contacted The Local, while citizens' rights groups have raised concerns that passport stamps may cause problems the next time British citizens leave the Schengen area if they are over the 90-day limit.

The Local asked the EU Commission to explain why passports were being stamped and what advice it had for British nationals.

Passports should not be stamped

Firstly the Commission confirmed that the passports of British residents whose rights are protected by the Brexit Withdrawal Agreement should not be stamped. EU officials have tried to get that message across to border police in all member states, they added.

“We regret the difficulties some UK travellers encountered. We have worked very closely with member states on the implementation of the (Brexit) Withdrawal Agreement to avoid such difficulties. Overall, the changes linked to the end of the transition period and end of application of EU law on free movement of EU citizens to United Kingdom nationals were implemented smoothly.

“Withdrawal Agreement beneficiaries have a right to enter their host member state and their passports should not be stamped when they cross an external Schengen border.

“Withdrawal Agreement beneficiaries are moreover exempted from the Council Recommendation on the temporary restriction on non-essential travel into the EU linked to the coronavirus pandemic. As non-EU nationals legally residing in the EU, they must not be denied boarding for travels into the EU under the Council recommendation.”

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What if you have no post-Brexit residency permit?

The problem for many British travellers resident in the EU is that they are not yet in possession of a new post-Brexit residency permit given that many governments have only recently opened the application processes.

That has left them relying on trying to convince border guards themselves that there was no need to stamp passports.

The EU commission said it has created guidance for all border guards, but it seems that guidance is not being read.

The Commission said: “We have discussed these specific issues in three expert group meetings (June, September and 1 December) and prepared guidance in all languages.

“The final version has been put at the disposal of the member states on 4th December 2020 (in English) and on 23rd December in all other languages (Annex 42 of the Practical Handbook for Border Guards).

The guidance sets out how to identify beneficiaries of the Withdrawal Agreement before these beneficiaries are in possession of a residence document issued in accordance with the Withdrawal Agreement for the purpose of not stamping their passports.”

“We have also prepared a document containing all specimen which will evidence that a person is a beneficiary of the Withdrawal Agreement before being in possession of the document issued in accordance with the Withdrawal Agreement (Annex 43 of the Practical Handbook for Border Guards) based on the input received by Member States. This document has been transmitted to the Member States on 15th December (and updated on 21st December).”

Entitled to compensation

The EU Commission said any British traveller who was denied entry to a plane after failing to prove legal residency is entitled to compensation.

“We have also transmitted the information on future rules and provided the specimen to the International Air Transport Association (IATA)’s TIMATIC which provides carriers with information about entry procedures and visa requirements in all countries of the world. The onus is on airlines to apply the new rules correctly.

“UK nationals who have been denied boarding by an EU air carrier can seek compensation as well as reimbursement of their ticket or re-routing under Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, unless where the air carrier can prove in the specific case at hand that the denied boarding was based on reasonable grounds related to e.g. inadequate travel documentation.

“Please note that Regulation (EC) No 261/2004 would not apply to those denied boarding by UK carriers from January 1st, 2021. In this case, possible rights in case of denied boarding should be assessed on the basis of UK legislation.”

A stamp is no threat residency

The final message from the Commission is that an erroneous passport stamp will not put residency rights into question.

It also said British nationals can ask border guards to cross out stamps, as some have done, according to reports we have received.

However, once again, it appears British travellers might have to explain themselves if those immigration officials have not read the “Practical Handbook for Border Guards”.

“If the beneficiaries of the Withdrawal Agreement can provide evidence that they have been incorrectly stamped, the stamp can be annulled by the border guard as explained in the Practical Handbook for Border Guards (see p. 68/69 of the Handbook).

“However, depending on national practices, some Member States may still stamp passports of beneficiaries of the Withdrawal Agreement, even if they hold notified documents: Member States may stamp residence permit they issued themselves and if this possibility is provided by national law.

“In any case, a wrong stamp in a passport can never put into question the right to reside in the host Member State.”

Member comments

Interested - 11 January 2021 at 16:50 CET

Of course going the other way, you are on your own. Priti Patel will doubtless deport you if you overstay an erroneous stamp even if you have UK residency established. Wouldn’t be the first time.
raymond Attfield - 11 January 2021 at 18:04 CET

While not claiming residency rights, well not yet, we have had a home in Provence for nearly 50 years, have paid taxe d’abitation, and VAT, have a bank account and have,’till now spent 4 or 5 months in France. We have been deprived of our citizenship of Europe and access to our home and assume we must now apply for a visa.
Twinflower - 14 January 2021 at 11:57 CET

It seems that some people have had the best of both worlds and want their cake and eat it. If you have a home in an EU country besides a home in the UK, you can obviously afford to sort out your residency from the UK before you go back to your EU-country home. Also, you must have known something like the situation you are in would happen, once the referendum vote was announced – that’s four and half years ago. I sorted mine out long ago, even though I was in favour of the UK leaving the EU. I dislike the Schengen Agreement and see it as a way for a (Dis)United States of Europe, which will dilute each countries identity into dust.

By the way, the two correspondents’ names – Robert Altinger and Raymond Attfield – sound like a psuedonym of each other. A coincidence?

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INTERVIEW: How best to respond to the Sweden Democrats' Swexit gambit

In tweets, interviews, one article in the Aftonbladet tabloid and a second one in Svenska Dagbladet newspaper, Sweden Democrat leader Jimmie Åkesson outlined his party’s new tougher position, with calls for mandatory referendums on extensions of EU powers, an analysis of how to reduce the negative impacts of EU membership, and, finally, cautionary preparations to leave.

Vi sverigedemokrater vill nu utreda hur vårt land kan förhindra mer maktöverföring till EU, maximera vårt inflytande och nå bättre förhandlingsresultat. Det skriver Jimmie Åkesson och Charlie Weimers.https://t.co/xORmEgulzB

— SvD Debatt (@SvDDebatt) May 16, 2023

For Manners, a political scientist and EU expert, this is all about repositioning the party.

“He’s caught in a very difficult position in that he’s effectively in a governing coalition, although they’re not in government, and they have no clear anti-system position, because they are in effect part of the ruling coalition in some strange way.”

Reviving a battle against the EU would allow the party to position itself against the broadly pro-EU Moderate and Liberal parties in the coalition, and also against the Social Democrats, Green and Centre parties of the opposition.

“In some respects, this is an attempt to ignite support within the party for something distinctive that makes them look different to the other three partners in the ruling coalition,” Manners explained.

It will also, though, help it find someone to blame if some of its most prominent policies wins fail to make it through parliament and into Swedish law.

Åkesson and other leading Sweden Democrats, Manners believes, are quickly realising that many of the most hardline policies on migration, energy and environment won in the agreement with the three governing parties will be impossible to enact, as they clash with laws already agreed at an EU level or with the European Convention on Human Rights, or will be challenged by the European Court of Human Rights.

“What’s become clear over time is that almost nothing EU-related in the Tidö Agreement has materialised in the way that Åkesson, or in fact the other parties, imagined,” Manners said.

This has probably come as a shock, he added.

“I’ve met enough SD MPs and MEPs that I don’t think they have that sense of consciousness of what it might mean to enter into a ruling coalition agreement like the Tidö Agreement and the extent to which it would be literally impossible to enact some of the policies made, so I think this probably comes as a little bit of a surprise for them.”

The European Court of Human Rights and the European Convention on Human Rights, he pointed out, “really binds your hands on a lot of the migration issues and on the treatment of refugees”.

The same was true for a slew of other policies in the agreement, as anyone with an understanding would have known.

“It was quite clear that actually, the government can have little influence over EU energy policy and environment policy and to a certain extent other EU-associated policy,” Manners said. “These are policies that are quite distinctly agreed at the EU level, not at national levels.”

As the Sweden Democrats have realised this, their animosity to the EU, downplayed since 2019, has revived.

Åkesson’s two articles, while stopping short of calling for Sweden to leave the European Union, contain some radical proposals nonetheless.

The first article complained that EU membership was becoming like “a straitjacket” for Sweden, with EU decisions determining Swedish legislation over forestry, vehicles and fuel, and much of what happens in regional and local government.

The second proposed three government inquiries designed to prevent more powers being transferred from Sweden to the EU:

an inquiry into mandatory referendums on any significant extension of EU powers or funding requirements
an inquiry into what actions Sweden can take to ensure that it is prepared to leave the EU, such as removing parts of constitution which state that Sweden is an EU member and training civil servants in trade negotiations
an inquiry into reducing the negative impacts of EU membership, by analysing which EU directives have been “over-implemented”, and ensuring that Sweden only meets the minimum requirements of EU laws

Manners said that the referendum inquiry was the one that the government should perhaps be most wary of.

“If I were the Sweden Democrats, I would be after a referendum and I think that’s what they want: anything that splits both their enemies and their coalition members,” he said.

Rather than an in-out referendum on EU membership, like the one held in the UK, the Sweden Democrats were probably hoping instead to engineer a referendum on a future planned extension of EU powers.

Manners thinks that pro-European Union forces in Sweden should learn from the example of the UK and go into action as soon as possible, moving to educate the Swedish public in advance not only of the risks of leaving the EU, but also of having the kinds of opt-outs from some EU policy areas, as Denmark has had.

After Danish voters rejected the Maastricht Treaty in a 1992 referendum, the country obtained four opt-outs from the treaty, covering the Euro, defence and security policy, justice and home affairs, and citizenship.

The result, Manners argues, was “a total waste of diplomatic capital”, with Denmark’s government and EU diplomats spending all their time managing their opt-outs, meaning they had no energy to push forward other policies they wanted to advance in the EU.

While the idea of Sweden rejecting a core piece of future EU legislation, let alone voting to leave the EU, may seem far-fetched, Manners said experience showed it was all too possible.

“It seems hard to imagine in Sweden, but having seen it happen in the UK, and certainly in Denmark over and over (…) it comes with a surprise and it comes with a shock. And the surprise is that anyone is stupid enough to hold a referendum, and the shock is that you have no way of predicting what will happen at any referendum.”

For the Sweden Democrats, a referendum would allow it to dominate one whole side of the debate, attracting any voters wishing to prevent the expansion of EU powers.

However the risks of the new policy gambit were at least as big as the potential benefits, Manners argued, with few supporting the proposed ideas even within the Sweden Democrats.

“I think actually it will quite possibly backfire. If you look at some of the dog whistle sentences in the article in Aftonbladet, one is, ‘we need to evaluate our membership of the EU’. Well, there’s literally no support for that.”

A recent survey of Swedish voters, carried out by the SOM Institute at Gothenburg University, found that support for EU membership was higher today than at any time since Sweden joined the EU in 1994, with 68 percent of voters in favour and only 11 percent against.

This was even the case for Sweden Democrat voters, a full 43 percent of whom said they were “essentially in favour” of Swedish EU membership, up from 23 percent as recently as 2021. Only 31 percent of Sweden Democrats said they were “essentially against” EU membership.

This picture could change if Åkesson and his party colleagues start to campaign on the issue and Manners said he thought it was important for pro-EU forces in Sweden to use this opportunity to make their case.

“The place that Swexit would really hurt is down here in the south of Sweden,” he said, based in Lund. “Imagine all the agriculture and the small and medium-sized industries in Skåne. Imagine all the transport and commuters, all the jobs that are dependent on flowing across the bridge. It’s going to get hurt twice as bad as the rest of Sweden. And this is the base for the Sweden Democrats.”

He said he believed that pro-EU politicians and media in Sweden should actively discuss the most concrete, material impacts of leaving the European Union.

He mentioned the long queues of trucks you would expect ahead of the Öresund Bridge, the likely impact on the krona, or the impact on the big investment decisions currently being made in the north of Sweden in car battery manufacturing or Green Steel.

Even having the debate or putting in place the inquiries Åkesson was proposing could risk these investments or affect the currency, said Manners.

“Countries do need to have a discussion about what it might potentially mean to leave the EU, so that there is a far greater awareness of the heightened risks,” he said. “Because we never had that discussion in the UK.”

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