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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

UK driving licences in Spain: When no news is bad news

The UK Ambassador to Spain has given an update on the driving licence debacle, with nothing new to genuinely give hope to the thousands of in-limbo drivers whose increasing frustration has led one group to try and take matters into their own hands.

UK driving licences in Spain: When no news is bad news

It’s been almost five months since UK driving licence holders residing in Spain were told they could no longer drive on Spanish roads. 

Since that fateful May 1st, an unnamed number of the approximately 400,000 UK nationals who are residents in Spain, as well as hundreds if not thousands of Spaniards and foreign nationals who passed their driving test in the UK, have not been able to use their vehicles in Spain or even rent one. 

What adds insult to injury is that British tourists visiting Spain can rent a car without any issue. The fact that Spanish licence holders living in the UK can also continue to exchange their permits in the UK 21 months after Brexit came into force is equally hard to swallow.

READ MORE: ‘An avoidable nightmare’ – How UK licence holders in Spain are affected by driving debacle

The latest update from UK Ambassador to Spain Hugh Elliott on September 27th has done little to quell the anger and sense of helplessness felt by those caught in this bureaucratic rabbit hole.

“I wanted to talk to you personally about the driving licences negotiations, which I know are continuing to have a serious impact on many of you,” Elliott began by saying.

“As the government’s representative in Spain, I hear and understand your frustrations. I too am frustrated by the pace.

“We previously thought, we genuinely thought, that we’d have concluded negotiations by the summer. 

“Many of you have quite rightly mentioned that I expressed the hope to you that we’d have you back on the road by the end of July.

“Now the truth is it has taken much longer, as there have been unforeseen issues that we have been working very hard to resolve. 

“And I’m as disappointed as you are by the length of time that this is actually taking. 

“But, please, be assured that we are resolving those issues, one by one. There are only a couple of issues left, but they are complex.”

It has previously been suggested by the UK Embassy that Spain has asked for data provision to form part of the exchange agreement, and that British authorities were reluctant to share said information on British drivers’ records, including possible infractions. 

Whether this is still one of the causes of the holdups is unknown, given how opaque the Embassy is being in this regard. 

“We’re working on this every day, it remains a priority,” the UK Ambassador continued.

“There is a lot going on behind the scenes, even if it doesn’t feel like it to you. 

“I know too that you want a timescale and you want an update after every meeting.

“But I’m afraid I just can’t give you those things in this negotiation.” 

The ambassador’s words are unlikely to appease those who are still unable to drive. 

A few weeks ago, a Facebook group called “Invasion of the British embassy in Madrid for the DL exchange issue” was set up, which so far has more than 400 members. 

The group’s administrator, Pascal Siegmund, is looking to set up a meeting with the British Embassy and Spanish authorities to shed light on the impact that not being allowed to drive is having on the life of thousands of UK licence holders in Spain. 

Many of those affected are sharing their stories online, explaining how, due to administrative errors on the part of Spain’s DGT traffic authority, they were unable to process their licence exchange before the deadline. 

This contrasts with the little sympathy shown by UK licence holders who were able to exchange and other commentators, who accuse those in limbo of not having bothered to complete the process, arguing that it’s essentially their own fault.

READ ALSO: Not all Brits in Spain who didn’t exchange UK driving licences are at fault 

“Many of you also continue to ask why you can’t drive while the talks are continuing,” Elliott remarked.

“It is not in the gift of the UK government to reinstate the measures which previously allowed you to continue to drive whilst the negotiations were ongoing earlier in the year. 

“As we said previously, we did request the reinstatement of those measures several times, but this wasn’t granted.”

It’s worth noting that since the news broke on May 1st that UK licence holders residing in Spain for more than six months could no longer drive, no Spanish news outlet has covered the story again. 

Pressure from citizen groups such as the one recently set up and increased awareness about the issue in English-language news sites such as The Local Spain is perhaps the best chance in-limbo drivers have of their voices being heard and the driving licence debacle being finally fixed. 

“I’d say we’re genuinely still making progress,” UK Ambassador Elliott concluded, practically the same message as in previous updates.

“I get how frustrating it is to hear that, but we are making progress. We’re in discussions almost daily about outstanding issues. 

“And I remain very optimistic that we will reach an agreement and hope it will be soon. 

“But as I say, I can’t give you a definitive timetable. 

“And so, the advice that we have been giving all along, which is that you should consider taking the Spanish test if you do need to drive urgently, remains valid. Though we appreciate that’s hard.”

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