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Brexit: Five key things to know about applying for residency in the EU

As tens of thousands of Brits across Europe prepare to begin the process of applying for residency rights to ensure their right to remain after Brexit, here are five key points you should know, thanks to British in Europe.

Brexit: Five key things to know about applying for residency in the EU
Photo by Markus Spiske

British nationals across Europe are facing a crucial time over the coming weeks and months as most face the prospect of having to apply for residency or at least register with authorities as a way of ensuring their future in the EU.

While the Withdrawal Agreement was ratified in January this year EU countries have the task of implementing the rights it guarantees British Citizens in the EU.

And things are moving slowly, with the UK having made more progress in registering EU citizens.

“Across the EU things are very much further behind than in the UK,” Kalba Meadows from British in Europe told a parliamentary committee this week.

“In fact there are only three EU countries where implementation (of the Withdrawal agreement) has begun: Italy, Netherlands and Malta,” she said

Other countries are at different stages with some having legislation in place to ensure the rights of Brits are guaranteed whilst others do not, she explained.

British in Europe have helped spell out some important points on the issue of residency rights and the procedures that British readers should be aware of. The points below are taken from British in Europe's Guidance note.

1. There's no minimum duration for living in a country before December 31st 2020

You will be covered by the WA for residence if you (a) lived legally (see above) in your host country before the end of the transition period and (b) you continue to do so afterwards. All possible situations where the right of residence stems from free movement rules are included.

This includes ordinary residence, whether you’re employed, self-employed, self-sufficient or a student; permanent residence; residence as a family member; and residence under the special rules for jobseekers.

There is no minimum duration for having lived legally before the end of the transition period. Example: you move to Finland to take up employment on December 1st 2020 and remain there after December 31st 2020. You are covered by the WA.

2. You don't actually need to be physically in the EU on December 31st

You don’t need to be physically present in your host country at the end of the transition period to be covered by the WA, as long as you remain legally resident on that day.

This is because as a legal resident you are allowed to be absent from your host country for certain periods without losing your residence rights: As an ordinary resident, you can be away from your host country for no more than 6 months every year without losing your resident status.

You’re allowed one longer absence of up to 12 months in the 5 year period for ‘important reasons’: eg childbirth, serious illness, study, vocational training or posting elsewhere (this is not an exhaustive list).

Once you have acquired permanent residence under the Withdrawal Agreement, you can be away from your host country for 5 years – an increase on the 2 years permitted for EU citizens – and still retain the right to return and keep your rights of permanent residence.

3. Rights don't change if you lose or change your job

Your right of residence under the WA in your host country is not affected if you change your status. Your ‘status’ for this purpose represents the category under which you are exercising your free movement rights: employed, self-employed, non economically active and self-sufficient or student.

So your rights are not affected if, for example if you stop being a student and start work, if you stop working and become non-economically active and self-sufficient, or if you move between the categories in any other way.

You can also hold more than one status at one time – for example you can be a student who is simultaneously self-employed. There are no procedural consequences attached to a change of status – you don’t have to report it to your registration authority or apply for or request a new residence document.

4. The qualifying period for permanent residency doesn't have to be the last 5 years

If you already hold permanent residence status under current free movement rules at the end of the transition period, you will be eligible for permanent residence status under the WA.

If you have not been resident long enough to acquire permanent residence status under the WA at the end of the transition period, you can continue to build up your years until you reach 5 years, when you will be eligible for permanent residence under the WA.

Periods both before and after the end of transition will be taken into account. One very important precision is that the qualifying period of residence does not have to be immediately before the moment when the right of permanent residence is claimed.

This means, for example, that if you have been resident in your host country for over 5 years but your circumstances changed recently, leaving you struggling to meet the conditions, you can call upon an earlier period of residence during which you did meet the conditions to use as your qualifying period.

5. Deadlines could be crucial depending on the country you are in

13 countries are adopting a constitutive system.

We still await the published list, although most countries now have stated which they will adopt. In a constitutive scheme you acquire residence status only if (a) you make an application for it and (b) that application is granted. In other words, the ‘source’ of your residence status and the rights that stem from it is the decision on your application made by the registration authority in your host country. It’s that decision, and the residence document that is issued as a result, which confers your residence status.

This is how ‘settled status’ works in the UK, and it also corresponds to the type of system used to deal with residence applications in EU member states from third country nationals. In a constitutive scheme, if you miss the deadline to apply for a new status under the WA or your application isn’t successful you will have no residence status and therefore in principle no legal right to reside.

This means that, if your host country is operating a constitutive scheme, it is crucial that you meet the deadline for applying for your new residence status. This deadline cannot be earlier than 30 June 2021 (6 months after the end of the transition period) and in some host countries may be later – but don’t miss it!

British in Europe stress that it's important to read their full guidance note to understand all the issues around gaining residency in an EU country. You can read the full document HERE.


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Reader Question: My status changed, do I need to change my French residency permit?

For foreigners in France on a visa or residency permit related to their status - such as a working visa, student visa or visitor visa - it can be difficult to know what to do when your status changes, such as when you retire, change jobs or start working after your studies have ended.

Reader Question: My status changed, do I need to change my French residency permit?

The Local spoke with immigration law specialist Haywood Wise to understand what foreigners should know when they find themselves in these types of situations and how to navigate them.

Should I be concerned about my right to be in France?

“If you have a valid titre de séjour, even if your situation changes, you do not have to leave the country immediately”, Maître Wise told The Local.

“First of all, a titre de séjour is a residency permit, irrespective of the type of mention. So you will maintain your residency even if you experience a change of status, as long as the card is valid. Let’s say, for example, you have a multi-year card as a spouse of a French citizen, but you are just divorcing and there are another two years left on your card.

“That would not annul or put in jeopardy your current residency permit. If that were to happen, then you should notify the préfecture once you change your address, and at that time, you can notify them of your situation”, the attorney explained.

When should I go through the administrative procedures to my status with the French government?

For those who have moved house and simply need to change their address, then this should be done as soon as it becomes effective, according to Maître Wise.

You can learn how to change your address on your residency permit HERE.

READ MORE: Reader question: Do I need to change the address on my carte de séjour if I move house?

However, for other procedures – for instance, wanting to go from the status of student to worker (salarié), it is advised to wait until the end of your current residency permit to apply for the next one. Typically, this is done in the two to three months preceding the permit’s expiration, but this may differ by préfecture.

“It is generally the case that you should not make start a change of status procedure during the interim period. The préfecture does not really want to see you again until your status expires in general”, Maître Wise clarified.

When you apply for your next residency permit, depending on how your status has changed, you may or may not be eligible for the same type of card you were on previously. 

Here are some common scenarios foreigners find themselves in with regard to status changes.

Divorce and Separation 

“If you are divorcing and you only have a temporary card, that can jeopardise your right to remain in France once the card expires. The next step will be determining whether you qualify for a new residency permit in France. If you have no activity or resources in France, then there may be a problem for being able to stay in France once the current card has expired”.

However, if you have been residing in France for over three years and you hold a carte de résident (10-year permit), then have little to worry about regarding your right to remain in France.

If you do not yet hold the carte de resident, but you qualify for it, you may still be able to apply under certain conditions. Maître Wise recommends that all people divorcing or separating from a French spouse while on a temporary residency card seek legal counsel prior to applying for their next residency permit to determine what they qualify for.

“PACs [a civil partnership] is different”, Wise told The Local. “To qualify for PACs with a French citizen, you first need to demonstrate that you’ve been living in France for at least a year with your partner”.

READ MORE: What you need to know about PACS v marriage in France

If you don’t fulfil any other criteria for a residency permit, but you have children in France, you can apply for a ‘vie privée‘ card, in order to be able to stay close to your children.

Changing jobs

For those looking to change jobs, the first question that should be asked is whether or not your current status in France requires you to have a work authorisation.

“It is a basic rule that a work authorisation is always required when working in France, and then there are various exceptions to that rule”, Wise explained.

Some of these exceptions include residency permits that themselves act as work authorisations – such as the carte de résidence or the vie familliale et privée permit. You can find more information about whether your status requires you to have a work permit or not HERE.

READ MORE: Three things to know about work permits in France

Maître Wise offered a few examples of times you might need a new work permit when changing jobs in France: “If you change employers while under a carte de sejour salarié, then you would need a new work authorisation for the new employer.

“If you came over on a travailleur temporaire status or on a travailleur saisonniere status, then you would need a new work authorisation to change jobs”. 

As for those who fall into the ‘talent passport’ category, things are more flexible. People in the various talent passport categories typically do not need work permits, but “if you are switching jobs to something that falls outside the initial requirements of your talent passport, you might need a work permit to be issued”.

While you do not need to go to the préfecture to change your titre de séjour while it is still active, you would need a new work authorisation for the new job that does not fit the conditions of your passeport talent

Having lost a job

For those whose status has changed from ’employed to unemployed’ and they were previously on a residency permit tied to their work status, then “the préfecture will be bound to renew your status as long as you have rights to chômage”, Maître Wise clarified. 

Offering another hypothetical scenario, Wise said: “Let’s say you have a carte salarié and you have been let go. If you still have unemployment rights for one more year, but your status is about to expire, then the préfecture will renew your permit for that one more year that you have access to unemployment in France”.

Finding a job 

“Making a change from visitor to professional status is generally not going to be successful, unless they have been a visitor for a very long time,” Wise cautioned. 

“Generally, when you enter as a visitor you undertook the agreement that you would not work in France, so this can be perceived as trying to circumvent the law”.

For those changing status from ‘job seeker’ to ’employed’  (those who have found a job in France while on the “Recherche d’Emploi et Création d’Entreprise” status), Wise once again advised waiting until the end of the permit before officially changing status with the préfecture. However, once the permit expires, people in this scenario will need to have a work permit from their employer to apply for the next status – either as a salarié (CDI) or as a travailleur temporaire (CDD).

In this situation, Wise explained that the work situation is not ‘opposable’ – this means that the employer is not required to demonstrate a good-faith effort has been made to find a French or European candidate via the Pôle Emploi over a period of three week to five weeks. 

All of these scenarios depend on individual situations, and would be advised to seek legal counsel. 

“In general, we are seeing a French administration that is more amenable to change of status in general. For one thing, as more applications become automated, the easier it has been for people to change status in France”, Wise concluded.