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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

Driving licences: How does situation for Brits in Italy compare to rest of Europe?

As UK driving licence holders in Italy still wait for answers regarding another extension or a long-awaited deal for the mutual exchange of British and Italian licences post-Brexit, we look at how the situation compares to that of their counterparts across Europe.

Driving licences: How does situation for Brits in Italy compare to rest of Europe?

When Britain left the EU at the end of 2020, the British and Italian authorities hadn’t reached a reciprocal agreement on driving licences.

However, UK licence holders living in Italy were granted a 12-month grace period in which they could continue to drive on their British licences in Italy.

READ ALSO: Q&A: Your questions answered about driving in Italy on a British licence

This was then further extended for another 12 months until the end of 2022.

The UK government announced on December 24th, 2021 that British residents of Italy who didn’t convert their UK licence to an Italian one could continue to use it until December 31st, 2022.

That’s the latest official directive from the authorities, with no decision made on what will happen from January 1st, 2023.

The question on a UK-Italy driving licence agreement rolls on. (Photo by FABIO MUZZI / AFP)

The latest extension – while providing more time – hasn’t ruled out the need to take the Italian theory and practical driving tests and the clock is ticking again with just over six months left of this grace period.

READ ALSO: How do you take your driving test in Italy?

In fact, the authorities recommend sitting the Italian driving exams whatever the outcome, just in case. The process is known to take months, so UK licence holders find themselves once again taking a gamble on waiting for an accord to be reached or taking the plunge by starting preparations for the tests.

As things stand, the latest update to the driving guidance on the British government’s ‘Living in Italy’ webpage in January states:

“If you were resident in Italy before 1 January 2022 you can use your valid UK licence until 31 December 2022,” however, “you must exchange your licence for an Italian one by 31 December 2022. You will need to take a driving test (in Italian).”

The guidance then states: “The British and Italian governments continue to negotiate long-term arrangements for exchanging driving licences without needing to take a test.”

The Local contacted the British Embassy in Rome to ask for an update on the situation, to which they responded:

“Rest assured the Embassy continues to prioritise the issue of UK driving licence validity in Italy and we continue to engage with the Italian government on this issue.”

Presently, the UK’s new ambassador to Italy, Edward Llewellyn, is touring all 20 regions of Italy and no updates on the driving licence have been given in the meantime.

Could there be a deal which sees all UK licence holders in Italy – those who registered their intent to exchange, those who didn’t, those who did register intent but haven’t been able to finalise the process, and future UK licence holders who move to Italy – able to continue using their UK licences in Italy or easily exchange them for Italian ones without having to sit a driving test?

READ ALSO: ‘Anyone can do it’: Why passing your Italian driving test isn’t as difficult as it sounds

It’s still hard to say, as the authorities continue to advise UK licence holders to sit their Italian driving test, while stating that the two governments are still working on an agreement.

The embassy’s most recent announcement was a Facebook post in April acknowledging that “many of you are concerned” about the issue.

“We continue to work at pace to reach a long-term agreement with Italy, so that residents can exchange their UK driving licences without taking a test, as Italian licence holders can in the UK,” the embassy stated.

British residents of Italy can use their driving licenses until the end of this year, the government has confirmed.

British residents of Italy can presently use their driving licences until the end of this year. Photo by PACO SERINELLI / AFP

The embassy reiterated the need for UK licence holders to consider the possibility of obtaining an Italian driving licence via a test, stating: “It is important that you currently consider all your options, which may include looking into taking a driving test now.”

READ ALSO: Getting your Italian driving licence: the language you need to pass your test

So is it true that most European nations have reached successful agreements with the UK over reciprocal driving licence recognition and exchange and the Italian deal is lagging behind?

The evidence suggests so.

UK licence exchange agreements across Europe

As things stand, Italy and Spain are the only European countries where licence exchange negotiations are ongoing.

British drivers living in Spain are becoming increasingly disgruntled at the lack of solutions, as authorities have still made no decision on exchanging driving licences or reaching a deal.

UK licence holders in Spain are currently in limbo, unable to drive until they either get a Spanish driving licence or a deal is finally reached between Spanish and UK authorities for the mutual exchange of licences post-Brexit.

Since May 1st 2022, drivers who’ve been residents in Spain for more than six months and who weren’t able to exchange their UK licences for Spanish ones cannot drive in Spain.

French and British authorities reached a licence exchange agreement in June 2021, considered a generous one for UK licence holders residing in France as those with licences issued before January 1st 2021 can continue using their UK licences in France until either the licence or the photocard nears expiry.

Sweden and the UK reached a deal even earlier in March 2021. British people resident in Sweden can exchange their UK driving licences for an equivalent Swedish one, without needing to take a test, just as they could when the country was a member of the European Union. 

In Portugal, resident UK licence holders can continue to use their valid UK licences until December 31st 2022 but they must exchange their licences for Portuguese ones before that date.

Other EU nations which have decided to allow UK licence holders residing in their countries to swap their driving licences without having to take a driving test include Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, Germany, Hungary, Iceland, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Romania, Slovakia, Slovenia and Switzerland.   

There are slight variations in the conditions between countries, and some say you “can exchange”, others that you “must exchange” and most encourage UK licence holders to swap “as soon as possible”. In Greece, UK licences continue to be valid without any restrictions or deadlines for exchange.

That leaves Italy and Spain as the two EU/EEA countries where a deal on a straightforward exchange or long-term recognition of UK licences among residents is still hanging in the balance.  

The only question that’s left is why. 

Why are the driving rights of all Britons who resided in Italy before December 31st 2020 not part of the other protected rights they enjoy under the Withdrawal agreement? 

And why is it taking so long to reach an exchange deal?

So far, Italian and British officials have not provided answers to these questions.

The Local will continue to ask for updates regarding the use of British driving licences in Italy.

Are you a British resident in Italy affected by this issue? We’d like to hear your thoughts. Please leave a comment below this article or email the Italian news team here.

Find more information on the UK government website’s Living in Italy section.

See The Local’s latest Brexit-related news updates for UK nationals in Italy here.

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