Brexit: EU issues guidance after Britons ‘wrongfully held’ at Schengen borders

The European Commission has been forced to issue guidance to EU member states on the treatment of UK citizens with post-Brexit residence rights transiting the Schengen borders, after it emerged some were wrongfully detained last year.

Brexit: EU issues guidance after Britons 'wrongfully held' at Schengen borders
UK nationals are being 'wrongfully detained' whilst transiting through the Schengen area. (Photo by Iroz Gaizka / AFP)

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 The second case concerned residence documents that were no longer valid.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.

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Danish agency slammed for not sending new Brexit reminder letters

A support group for British nationals who live in Denmark has criticised the country’s residence permits agency after it said it would not be sending reminder letters before an upcoming deadline.

Danish agency slammed for not sending new Brexit reminder letters

The decision not to send individual letters to people who may not be aware of the deadline was criticised by British in Denmark, a support group for UK nationals resident in Denmark.

The group said it was disappointed that people who were not sent letters back in 2021, due to an error by authorities, would again not be individually notified of the need to apply.

“We were disappointed to read that SIRI does not intend to reach out to the hundreds of British citizens who arrived in 2020 and did not get the information letters,” a spokesperson from British in Denmark told The Local with reference to the Danish Agency for International Recruitment and Integration (SIRI), which is responsible for processing residence permit cases.

“We fear that this is potentially a massive problem as we know that many who arrived in 2020 were wrongly told in person by staff at SIRI that they did not have to do anything else after registering under EU rules,” they said.

In a statement last week, SIRI underlined the importance of the extended deadline to apply for residence in Denmark under the Brexit Withdrawal Agreement.

“British citizens and their family members who do not already hold a residence document in Denmark under the Withdrawal Agreement must submit an application – SIRI is not going to send out individual information letters,” the agency said on its website.

We will not send letters’: Danish immigration agency in reminder over extended Brexit deadline

In March, the government announced that British nationals who had missed the previous deadline to secure their post-Brexit residency status, now have until the end of 2023 to apply or resubmit their late application.

That decision came after a large number of British nationals living in Denmark missed the 2021 deadline, in part because many did not receive individual notification of the need to apply.

In December last year, SIRI told The Local that, due to an error, it did not send individual reminders to people who moved to Denmark from the UK after January 2020 — meaning many people were not directly notified that they needed to submit an application to update their residence status before the December 31st, 2021 deadline.

“There could still be many individuals out there who are unaware that they were given the wrong advice and have to re-apply to keep their residency under the Withdrawal Agreement by the end of the year,” the spokesperson from British in Denmark said.

“British in Denmark will continue to lobby for letters to be sent out, otherwise we fear that another wave of ‘late applications’ will happen after the new deadline has passed,” they said.

“We also will continue asking for clear guidance on late applications so that those who miss the extended deadline have some kind of clue as to what constitutes a ‘reasonable reason’ for applying late,” they said.

SIRI said that it was using its regular channels to inform affected persons about the deadline and that it was engaged in an information campaign.

“The British citizens and their family members encompassed by the Withdrawal Agreement should be aware that they must apply by the end of the year,” Kirsten Meier, the head of SIRI’s EU office, told The Local in a written comment.

“We have chosen to use the information channels we offer to all of our other users and therefore don’t send out individual letters,” Meier said.

“From SIRI’s side, we provide information about the deadline via the website and our Brexit telephone line. Up to December, we will also spread the message on social media and via our network,” she said.

SIRI’s Brexit helpline can be contacted on the telephone number 72 14 20 05, according to the agency’s website.

Majority of Britons not affected

In 2021, British residents in Denmark who moved to the country under EU free movement rules were asked to submit applications to extend their residency status, and thereby receive a residency permit card.

People who completed this process in 2021 – the majority of Britons who live in Denmark – do not need to contact authorities again before the extended deadline.

People who moved to Denmark from the UK after December 31st, 2020 are not covered by the Brexit Withdrawal Agreement and are therefore subject to Denmark’s general immigration rules for third-country nationals. They are also unaffected by the extended deadline.

However, the December 31st, 2023 deadline is important for a significant number of people.

That is because some Britons who have lived in Denmark since 2020 have not previously submitted an application under the Withdrawal Agreement. Others submitted their applications after the original deadline of December 31st, 2021 and subsequently received a rejection to having their application processed.

It is people who fall into these two groups who must submit applications within the new deadline.

According to figures provided by SIRI to The Local in January, 352 late applications had been received by the agency. Of these, 50 were rejected while 179 were pending. Some 113 had been approved despite late submission and 10 lapsed without an outcome. The figures cover late submissions from persons who both did and did not receive the information letters.

SIRI did send letters to over 19,000 British nationals in Denmark, but only to earlier movers — not those who registered after moving to the country between February and December 2020. Some 17,811 applications were received by SIRI before the earlier deadline.