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RESIDENCY PERMITS

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.

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.”

READ ALSO: 

 

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

  1. 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.

  2. 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.

  3. 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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BREXIT

Frustration grows as UK driving licence holders in Italy wait in limbo

British nationals living in Italy are becoming increasingly concerned by the lack of news about a reciprocal driving licence agreement post-Brexit, and say the current 'catch-22' situation is adversely affecting their lives.

Frustration grows as UK driving licence holders in Italy wait in limbo

There is growing discontent among UK licence holders residing in Italy who are currently playing a waiting game on the validity of their driving licences.

Those who are driving in Italy on a UK-issued permit currently have just over six months left before their licence is no longer accepted on Italy’s roads.

READ ALSO: Driving licences: How does situation for Brits in Italy compare to rest of Europe?

That is, unless a deal is reached between the UK and Italy, or another extension period is granted.

Another extension would mark the third time the authorities have deferred making an agreement on UK driving licences in Italy.

When Britain left the EU at the end of 2020, British and Italian authorities hadn’t reached a reciprocal deal on driving licences.

However, UK licence holders living in Italy were granted a 12-month grace period in which they could continue to drive on their British licences in Italy.

With just days to go before the deadline in December 2021, those still using a UK licence were granted a reprieve when it was further extended for another 12 months until the end of 2022.

But the situation from January 1st, 2023, remains unknown.

In the remaining few months, British nationals driving in Italy who hadn’t converted their licence to an Italian one before January 1st, 2021 face the same choice again: wait and hope for an agreement or start the lengthy and costly process of taking their Italian driving test.

There is still no confirmation on reaching an agreement on driving licences. Photo by Miguel MEDINA / AFP

Many UK nationals have contacted The Local recently to express their frustration, anger and concern over the situation, explaining how the possibility of not being to drive in Italy would profoundly impact their lives.

For some, it would mean not being able to get to work, losing their independence, not being to reach supermarkets for the food shop in remote areas, or not being able to take their children to school.

And in the meantime, many readers told us it means ongoing worry and uncertainty.

Reader David (not his real name), who moved to the southern region of Puglia shortly before Brexit hit, tells us he now finds himself in a “horrible catch-22 situation”.

He summed up the feeling among many of those who contacted The Local by saying: “It is highly concerning and not at all helpful for mental or physical health in a period when we are trying to settle in to a new life in Italy.”

He points out that, for him, retaking his driving test and getting an Italian licence would also mean having to sell his car and buy one with a less powerful engine.

“I realise that if I pass the Italian driving test and obtain an Italian licence, then I will be a neopatente (new driver) with three years of serious restrictions,” he says.

READ ALSO: What you need to know about getting an Italian driving licence post-Brexit

Newly administered licences in Italy carry restrictions including on the maximum engine size of the car the holder may drive, tighter speed limits on the motorway and extra penalty points for breaking them.

“In this situation, I am honestly dis-incentivised to get the Italian licence unless there seriously is a real ‘no deal’ scenario on the table,” he says.

“Because if I get an Italian licence now – and of course I could choose now to invest a lot of time and money to get it – and then an agreement is reached to exchange licenses, then I might find myself in a worse position than if I just waited to do an exchange.”

“I am sincerely hoping for an agreement to be reached for experienced drivers with a UK licence.”

James Appleton lives in Milan and says he feels “frustrated about the situation”. Although he concedes that he lives in the city with all the convenience that implies, he is worried about having a car sitting outside his flat that he can no longer drive from January.

“The frustration now is with little over six months left of the year, advice from the authorities has continued to be quite unhelpful,” he tells us.

“We keep hearing, ‘consider your options’. I know my options: I have to start the process of taking a test, which is expensive and lengthy, and which may turn out to be unnecessary, or wait until the end of the year. Those have been my options for year and a half,” he adds.

Frustration for many British nationals still waiting on a post-Brexit driving licence agreement. Photo by ANDREAS SOLARO / AFP

“I feel very much in limbo. If it gets to November and we still haven’t heard anything, I risk having a car that I can’t drive from January as my licence may no longer be valid.

My hope would be if there’s not to be a deal, let us know so there’s time to take the test,” James says. “I don’t want to find out with a week to go, like last year.”

He points to the fact that many other non-EU countries have reciprocal driving licence agreements with Italy, so why not the UK? Meanwhile, Italy is one of only two countries in the EU still not to have made a deal on driving licences.

While he said he didn’t want to sound “entitled”, the lack of clarity was simply confusing.

READ ALSO: Q&A: Your questions answered about driving in Italy on a British licence

Like many others, he tried but didn’t manage to convert his British licence in time as he moved to Italy shortly before the Brexit deadline.

James registered as a resident in December 2020, leaving little time to begin the conversion process. He admitted it was partly his fault “for not having realised the consequences of what was going to happen”.

But “there are some people in a position where it wasn’t so straightforward to convert your licence,” he notes.

This was true for another reader, who wished to remain anonymous. She tells us that she tried to begin the conversion of her UK driving licence three times in Imperia, where she lives, but was told to “wait and see what is decided”.

“No one has taken a note of my requests and attempts so I cannot prove my attempts to get this sorted or listed,” she says.

READ ALSO: How to import your car or motorbike to Italy

In her case, it would therefore be difficult to prove that she began the conversion process before January 1st, 2021.

She also faced setbacks when trying to convert her licence in time after applying for residency before Brexit.

On being told that she needed her final ID card (carta d’identità) proving her residence, she returned to her town hall but couldn’t get the card for another seven months due to no appointments being available.

“Then I couldn’t get the licence exchanged as the person dealing with this was not at work on the day I went. I had to fly back to UK then Covid restrictions kicked in, hampering travel and by then UK was out of Europe and the Italian/UK driver’s licence issues remained unsolved,” she added.

The question on a UK-Italy driving licence agreement rolls on. Photo by FABIO MUZZI / AFP

So is there any hope that an agreement will be reached and those driving on a UK licence won’t need to sit an Italian driving test?

At this point there are no indications as to whether a decision will be reached either way. The British government continues to advise licence holders to sit their Italian driving test, while also stating that they’re working on reaching a deal.

The latest update to the driving guidance on the British government’s ‘Living in Italy’ webpage in January states:

“If you were resident in Italy before 1 January 2022 you can use your valid UK licence until 31 December 2022,” however, “you must exchange your licence for an Italian one by 31 December 2022. You will need to take a driving test (in Italian).”

The guidance then states: “The British and Italian governments continue to negotiate long-term arrangements for exchanging driving licences without needing to take a test.”

So far, so much conflicting advice, as many readers point out.

Of those who have decided to take the plunge and sit the Italian driving test, some say it’s “not as difficult as it sounds” while others report having trouble with the highly technical questions in the theory test, not to mention the fact that the test has to be taken in Italian.

If you speak French or German better than Italian, the test may be available in those languages – but not in English.

READ ALSO: Getting your Italian driving licence: the language you need to pass your test

“My question is why can’t you take your driving test in English? Adding it as an option for taking the test would help,” says Njideka Nwachukwu, who moved to Italy in 2019. She failed the theory test and has to try again, at a further cost.

Even if you find taking the test a breeze, the process is known to take around six months – if you pass everything first time – and to set you back hundreds of euros.

At the time of writing, neither Italian nor British government officials have given any indication as to if or when a deal may be reached, or an explanation of why the two countries have not yet been able to reach an agreement.

Nor has any explanation been given as to why this important aspect of life in Italy was never protected under the Withdrawal Agreement in the first place.

When contacted by The Local recently for an update on the situation, the British Embassy in Rome stated: “rest assured the Embassy continues to prioritise the issue of UK driving licence validity in Italy and we continue to engage with the Italian government on this issue.”

The Local will continue to ask for updates regarding the use of British driving licences in Italy.

Thank you to everyone who contacted The Local to tell us how they are affected by this issue, including those we couldn’t feature in this article.

Find more information on the UK government website’s Living in Italy section.

See The Local’s latest Brexit-related news updates for UK nationals in Italy here.

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