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How long can Brits stay in the UK without losing their EU residency?

The coronavirus pandemic has seen many British nationals resident in the EU return to the UK, but those 'waiting out' Covid-19 back in Britain could lose their rights to live in their host country. Here's what you need to know to make sure you keep your EU residency status.

Published: 18 March 2021 14:01 CET
Updated: 15 May 2021 09:28 CEST

How long can Brits stay in the UK without losing their EU residency?

Brits waiting out the pandemic in the UK could have trouble returning to their homes in the EU. Photo: Eric Piermont/AFP

Brits living in the European Union who have returned to the UK until Covid-19 subsides are being urged not to stay away from their host country for too long – or they risk losing their rights to residence there, warns citizens’ rights group British in Europe.

Since Britain left the EU on January 1st 2021, British nationals are covered by the Withdrawal Agreement (WA). This legislation sets out citizens’ rights, providing for entitlements to work, study and access public services and benefits on similar terms to when the UK was part of the EU.

Under this agreement, there is a limit to the amount of time Brits can be away from their host country – that is, the EU country they moved to. How much time you’ve been resident in your host country determines how long you can spend in the UK.

If you have permanent residence under the Withdrawal Agreement, the permitted absence from your EU country is five years. Permanent residence is granted for anyone who has “been living in a Member State continuously and lawfully for five years at the end of the transition period”, according to UK government guidelines.

What does continuously mean? The UK government advice is that “individuals will generally have been lawfully residing in their host state for at least six months in any 12-month period”.

That means you’re in the clear if you possess permanent residency under the Withdrawal Agreement. Unless you plan to stay in the UK for several more years from now, you aren’t in danger of losing your residency rights while you’re away.

On the other hand, if this doesn’t apply to you and you have ordinary residence instead, the permitted absence is a total of six months in a 12-month period.

This can be extended, however, to “one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country”.

Does Covid-19 count as an important reason?

The Agreement provides for cases of serious illness, so if you caught Covid-19 in the UK, you can argue this is valid for extending the six-month absence to 12 months.

It gets more difficult to define if your individual case falls outside of these allowances. You may personally believe your circumstances warrant staying away for longer than six months: difficulty of travel, looking after an ill relative, your struggling mental health if you return to an apartment to live alone are all good reasons to stay in the UK. However, it’s not clear cut whether this will be accepted and each country will have different rules.

As there are no clear guidelines on which Covid-related reasons would justify an extension, if you have ordinary residence, you could lose your residence rights if you are absent for more than six months.

It can sometimes be tricky to calculate exactly how long your period of permitted absences is. EU rights service Your Europe Advice may be able to advise on your individual case – you can contact them here.

How can you prove how long you’ve been away from your EU residence?

On returning to your host country – or the EU transit country – you may be asked questions about your residence at the border. You will be required to explain that you haven’t been away from your host country for more than a six-month period, or that you have solid grounds for extending this to 12 months.

“You should, therefore, be ready to provide proof of your periods of absence and, if claiming more than six months’ absence for Covid-related reasons, to provide documentary proof of those reasons,” states British in Europe.

Proof of these absences can be in the form of travel tickets. Meanwhile the group says that any Covid-related documentation will need to be “convincing”. This could include test results and details of treatment.

And of course, you’ll need to prove that you’re resident in your EU country in the first place. Show border guards your residence card if you have one, or if your country doesn’t use them or hasn’t issued yours yet, carry documentation such as property deeds, rental agreements, employment contracts or utility bills that show you’re based there.

More details and FAQs on UK nationals’ residence rights in the EU can be found on the European Commission’s website here.

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Member comments

Bonzadog - 20 March 2021 at 15:20 CET

20.3.2021 Spring Starts!

Hello,

If living in the EU then I think the best thing is to apply for Dual nationality. This was possible in Germany, but I am unsure if still available. It will certainly save a lot of problems.

What do others think about this?
1. eddpayne - 28 March 2021 at 17:54 CEST
  
  Germany allows British citizens to keep their citizenship when applying for naturalisation as long as the application was submitted and all relevant requirements (length of residence, language level certificate and the citizenship test) were completed before 31 December 2020 – any applications made after that date would require you to renounce your British citizenship before the German authorities will grant you German citizenship. Germany only allows dual nationality with other EU member states or Switzerland, so as the transition period finished on 31 December 2020 so did this possibility.

Become a Member to leave a comment.

Mythbuster: Can you really 'cheat' the Schengen 90-day rule?

If you’re the citizen of a non-EU country and you want to spend long periods in the EU/Schengen zone, you will need a visa.

But citizens of certain countries – including the US, Canada, Australia and the UK – benefit from the ’90-day rule’, which allows you to travel visa free within the Schengen zone for 90 days out of every 180.

Anyone wanting to spend longer than this will need a visa or residency card.

So a simple enough rule, and for most travellers 90 days out of every 180 is perfectly adequate for holidays, family visits etc.

However some groups – especially second-home owners – might want to spend longer than this.

For Brits, entering the world of the 90-day rule is a recent development, since before Brexit Brits were EU citizens and therefore benefited from EU freedom of movement.

The harsh reality of the post-Brexit world has prompted a steady stream of articles in UK media (examples pictured below) promising ’90-day loopholes’ or ‘how to beat the 90-day rule’ (scroll to the end of this article for what the below ‘loopholes’ really entail).

But do these so-called loopholes really exist?

Despite the claims in the headlines, there are really only three options for non-EU citizens wanting to spend time in the EU – limit their stays to 90 days in every 180 (which still adds up to six months over the course of a year); get a short-stay visitor visa (if the country offers them like France does); or move to an EU country full-time and become a resident.

All of the advertised tricks, dodges and loopholes are really just variations on these three options.

Limit stays to 90 days

Advantages – the big advantage of this method is no paperwork. You can travel visa free and there is no requirement to register with authorities in the country you are visiting (although second home owners will of course have to pay property taxes and other local taxes in the area where their property is located).

In this scenario you retain residency in your home country and are simply a visitor in the EU – a status identical to that of a tourist.

Disadvantages – the time limit is too short for many people and there is also the problem that stays are limited to 90 days in every 180. Although over the course of a year this adds up to six months, you cannot take your six months all in one go – so for example spending the winter in Spain and the summer in the UK is no longer possible. Likewise travelling to your French holiday home for four months over the summer is no longer an option.

It’s up to you to keep track of your 90 days, which you can use as either one long trip or multiple short trips. The 90-day limit is calculated on a rolling calendar and keeping track of the days and making sure you have not exceeded your limit can be stressful.

As a visitor, you have no rights to enter the country if the borders close (as, for example, happened during the pandemic).

Short-stay visa – if country offers them

If you want to remain a resident in your home country but don’t want to be constrained by the 90-day rule, you might be able to get a short-stay visitor visa if they are an option. Visas are issued on a national level, there is no such thing as an EU-wide visa, so you will need to apply for a visa in the country where you want to stay.

Different EU countries have different visas, but most (including France although not Italy) offer a short-stay visitor visa (usually six months) that gives you the status of a visitor, but allows you to stay for longer than 90 days.

Advantages – no more counting the days, for the period when your visa is valid you can stay for as long as you like in the country of your choice. By maintaining your residency in your home country, you don’t have to register with authorities in the EU country and won’t be liable for residency-based taxes.

Disadvantages – visa paperwork can be complicated and the process is time-consuming and sometimes expensive (most countries require an in-person visit to the consulate as part of the process). You also need to plan in advance as visas take several weeks or months to be issued.

A visitor visa usually requires proof of financial means, so this is not available to people on very low incomes.

You are still classed as a visitor, so have no rights to enter the country if the borders close (as, for example, happened during the pandemic).

If you are spending a significant amount of time each year out of your home country, this might also affect your tax status, depending on the rules of your home country around ‘tax residency’ (which is not the same as residency for immigration purposes).

Move to an EU country

If you were accustomed to splitting your time roughly equally between your second home and your home country, you might want to consider becoming a resident in the EU.

Advantages – as a resident, you are no longer constrained by the 90-day rule in the country in which you live. The rule does, however, apply to other EU countries. So if for example you are a Brit resident in France, there are no limits on the amount of time you can spend in France. However the 90-day rule does still apply for trips to Italy, Spain, Germany and all other EU/Schengen zone countries. In practice, border checks while travelling within the Schengen zone are pretty light touch, but technically the rule still applies.

You can of course pay unlimited visits to your home country, provided you maintain your citizenship.

Disadvantages – moving countries involves a lot of paperwork. The process varies slightly depending on the country and your personal situation but in general you will first need to get a visa (which must be applied for from your home country, before you move) and then on arrival will usually need to undergo extra admin to validate the visa and register with local authorities. You might also be required to undergo a medical examination and take classes in the national language.

Depending on the type of visa you apply for, you may also need to provide proof of financial means, which disadvantages people on low incomes.

You will also need to register for healthcare under the system of the country you live in, and may be required to either pay taxes or at least complete an annual tax declaration in the country you live in.

Admin is not a one-off event either, most countries require you to regularly renew your visa or residency card. Being officially resident abroad will likely also affect your tax status and access to healthcare in your home country, while your pension entitlements may also be affected.

Can’t we just ignore the 90-day rule?

As a responsible publication, The Local obviously doesn’t advise breaking any laws, but aside from the moral issue, the practicalities of the 90-day rule make it a difficult one to get around.

If you’re not working or claiming benefits most EU countries are unlikely to even notice that you have over-stayed, and the prospect of police knocking on your door is pretty remote.

However, the problem arises when you need to travel, as border guards will likely spot that you arrived in the EU more than 90 days previously and have no visa. Penalties for over-stayers include fines, deportation and ‘over-stay’ stamps in your passport that will make future travel more difficult.

Planned changes to EU border controls (due to come into effect in 2024) will tighten up these checks.

So in short you could over-stay your 90-days but only if you were prepared to never leave the Schengen zone. And if you’re now living here full time there will come a day when you need to access healthcare or other social benefits and that will be difficult if you do not have an official status as a resident.

All EU countries have undocumented migrants living in them, often working illegally on a cash-in-hand basis, but their existence is precarious, they are ripe for exploitation and often live in poverty. We wouldn’t recommend it.

PS: Those ‘loopholes’ promised in the articles above? The couple in the Telegraph got a visa and moved to France full time, where they are now residents. They told the paper: “The visa process took 9 to 10 months – we had thought it might take three. Yet we think our new life is wonderful and more than worth all the effort.”

The travel influencer mentioned in The Sun simply limits her stays in the Schengen zone to 90 days out of the every 180, but instead of returning to the UK for the rest of the time, she goes to Bulgaria (which is not part of the Schengen zone).

Truly, there are no loopholes . . .

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