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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.”

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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

  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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RESIDENCY PERMITS

What are my rights while I wait for my Swiss residence permit to be extended?

As a foreign national in Switzerland, your permit is a very important document, as it allows you to stay and work here. But what happens when it expires?

What are my rights while I wait for my Swiss residence permit to be extended?

Whether or not you have any rights in Switzerland when your permit expires depends on the kind of permit you have — it may have to be renewed each year or only after five years of residency.

For instance, B and C permits are renewed automatically (unless there is a reason why they can’t be — because you have left the country or are no longer eligible for one).

If they are renewed automatically, then you don’t have to do anything — just wait for it to arrive.

In the meantime, your rights are protected — you can continue to work and live in Switzerland as before.

Things are a little bit more complicated if you hold a short-term permit, like L.

This permit is given to eligible people who move to Switzerland to work temporarily in a specific job or company. It is valid for up to one one year, and can be renewed for another 24 months under certain circumstances, such as if your employer requests it.

Unlike B or C permit, L is not extended automatically; rather, you have to apply to have it renewed (see below).

It is important to keep in mind that this particular permit is tied to a specific job, so if you change work, the permit, and your right of residency, will lapse.

As far as G permit, given to cross-border workers, it is in force for periods from one to five years, depending on your Swiss employment contract. They too are usually not renewed automatically.

READ MORE: How to get a permit as a cross-border worker in Switzerland

What are your rights if your permit expires?

If you are not getting an extension or a new permit, then you have to leave Switzerland

If you are not informed by the canton ahead of time that your permit would not be extended, then you are in the clear. You have the right to remain and work in Switzerland.

For you to be able to stay in the country legally, your permit either must be renewed automatically (B and C), or it is up to you to take steps to do so.

In either case, you should be aware of the deadlines and procedures for extension, but the process is fairly simple.

Typically, you will receive a letter from local authorities approximately six weeks before the deadline reminding you to renew. There will also be an application form that you will need to fill out.

It must be submitted to your commune of residence no earlier than three months and no later than two weeks prior to the expiration date.

You will need to present your residence permit and passport, which must remain valid for at least three months after the date of permit’s expiration.

The cost of renewal varies from one commune to another and is determined by the kind of permit you have.

What about refugee permits?

Permit N is granted to asylum seekers whose application is being processed. During this time, they are entitled to live (and under certain conditions, also work) in Switzerland, for as long as their status is not revoked by the government.

In regard to S permits granted to Ukrainians who fled their country, they have the right to live and work in Switzerland for as long as their status is valid: according to the State Secretariat for Migration (SEM), this period is one year, though it can be extended for five years.

There is no need for these people to apply for extension each year: it will be done automatically, but only if the Swiss government will maintain their status.

READ MORE: READER QUESTION: How long can I stay out of Switzerland and keep my residency rights?

 

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