The document was distributed on July 14th to national delegations of EU countries, as well as Iceland, Norway and Switzerland/Liechtenstein, but it was made public only on September 5th by Statewatch, a charity reporting on civil liberties.
It was distributed after the Commission noted in 2022 that there have been some cases of UK citizens with post-Brexit rights as legal residents of EU member states “encountering problems when transiting Schengen states on their way to the member state where they reside.”
The Commission received reports of UK beneficiaries of the withdrawal agreement entering another Schengen country and being “held by the police because they did not have a valid residence document”.
In the first case, the individual had a valid document, but the state that issued it had not asked the Commission to include the documents in the Schengen Practical Handbook for Border Guards, which is used as a reference regarding which forms of documentation are valid for which purposes, Statewatch explained. The second case concerned residence documents that were no longer valid.
The cases were reported to the Commission, which is tasked to monitor the correct implementation of the post-Brexit arrangements for UK citizens. The issue was then brought to the attention of the UK-EU Specialised Committee on Citizens’ Rights.
UK nationals living in the EU did not retain free movement rights after Brexit. Under the Withdrawal Agreement the rights they previously enjoyed were maintained only in their country of residence.
In July, the Commission circulated the note to “remind member states of the applicable rules with regard to UK nationals that are beneficiaries of the withdrawal agreement” and “to prevent that they are being wrongfully detained whilst transiting through the Schengen area”. The guidelines apply to UK nationals and their family members.
The Commission specifies: “In a nutshell, beneficiaries of the withdrawal agreement can use their residence documents issued under the Withdrawal Agreement as well as other means of evidence at the border to prove their residence status and connected rights, such as not being subject to the maximum duration of stay of up to 90 days in a 180 days’ period in their host State.”
As a “fall-back solution to tackle comparable incidents”, it is also recommended to border guards of “second member states” (not those of residence) “to ensure that the individuals concerned are afforded the opportunity to rebut the presumption of their illegal stay” and to “regularise” their short-term stay by an entry stamp on the passport.
The note further reminds countries that UK citizens legally resident in the Schengen area will not be included in the Entry Exit System (EES) and the European Travel Information and Authorisation System (ETIAS), which are expected to be introduced probably next year.
“Further practical instructions will be issued closer to the entry into application of these two systems,” the document says.