Residency: Difficulties, Restrictions and Refusals

The vast majority of people will be able to obtain their new residence document under the Withdrawal Agreement (WA) without difficulty, whether you’re living in a declaratory country, in which your rights are directly conferred by the WA (providing you meet the conditions) and don’t depend on a decision of the authorities, or in a constitutive country where you have to apply for a new status and the document that evidences that status. So this article is, we hope, one that most of you will never need to refer to.

But just occasionally there can be problems. Maybe your situation is borderline and you’re not sure that you’ll be able to meet the conditions for residence, or perhaps you’ve been refused a residence status or document under the WA. Here we explain the circumstances under which you may be refused a right of residence under the WA, outline what the WA and the EU Commission’s Guidance Note say about refusal of or restrictions to your right of residence, and provide you with some resources which may help if you are encountering difficulties or you think you may do so.

1. Under what circumstances can you be refused a right of residence under the WA?

(a) If you are outside the personal scope of Title II of the WA

This would apply, for example, if you moved to your host country for the first time after 31 December 2020, or you are moving as a family member to join a spouse or partner with whom you were not already in a relationship on 31 December 2020, or if your circumstances are otherwise not covered by Article 10 of the WA. For more information about who is within the personal scope of the WA, see our explainer here.

(b) If you don’t meet the conditions to be legally resident under the WA

To be legally resident under the WA, during the first 5 years of your residence you must fall into one of the following categories: employed, self-employed, non economically active but living on your own resources and self-sufficient, student, bona fide jobseeker. There are conditions attached to each category: for example, if you are self-sufficient you must have comprehensive health insurance and show that you have sufficient income not to be an unreasonable burden on the social security system of your host country. You must meet these conditions throughout the first 5 years of your residence in your host country. Your close family member (of any nationality) who doesn’t meet the conditions for residence in their own right is also covered if you are legally resident. You can find out more about the conditions in our explainer here.

(c) If you previously met the conditions for legal residence but you have broken your continuity of residence due to absence from your host country

This would be the case if you have been absent from your host country for longer than the relevant permitted period. See more about permitted absences in our explainer here.

(d) If you live in a constitutive country, you missed the deadline for applying for your new residence status, and your registration authority doesn’t consider that you had reasonable grounds for your failure to respect the deadline

Each country operating a constitutive scheme has set a deadline by which applications must be made; you can find out your country’s application deadline here (page 12). If you miss the deadline, your host country has to look at whether you had reasonable grounds for your late application. Neither the WA nor the Guidance Note give concrete examples of what reasonable grounds might be, but the Guidance Note says that your host country must make an assessment of “all the circumstances and reasons” for not respecting the deadline. It will only process your application if it is satisfied that you had reasonable grounds for not applying within the deadline.

(e) On personal conduct grounds

EU free movement rules allow a member state to restrict a person’s right of residence if their personal conduct poses a genuine, present and sufficiently serious threat to public policy or public security. The WA also includes such provisions, in Article 20, which apply to everyone covered by Title II - for example, to frontier workers, close family members and extended family members as well as right holders. It differentiates between conduct which occurred before the end of the transition period (31 December 2020) and that which occurred afterwards.

(i) Conduct which occurred before the end of the transition period

• The WA says that in the case of personal conduct which occurred before the end of the transition period, your host country must use EU free movement rules to determine whether it can restrict your right to residence.
• These are set out in Chapter VI of Directive 2004/38/EC.
• Chapter VI sets out a number of safeguards before a decision to restrict a person’s right of residence may be made, including a requirement to take into account the age, health, family relationships and social and cultural integration of the individual (Article 28(1)).
• Any decision to restrict your right of residence on conduct grounds must be taken on a case-by-case basis, and only where your personal conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of your host country (Article 27(2)).
• If the authorities in your host country consider that your personal conduct represents a threat that is serious enough to warrant a restrictive measure, they must carry out a proportionality assessment to decide whether you can be denied entry or removed on grounds of public policy or public security. Previous criminal convictions do not in themselves constitute grounds for taking such measures (Article 27(2)).
• If you have permanent residence status, after 5 years of legal residence in your host country, you can only be expelled on serious grounds of public policy or public security (Article 28(2)). If you have been resident in your host country for 10 years or more, you can only be expelled on imperative grounds on public security, and not on grounds of public policy (Article 28(3). This also applies to minors.
• It goes without saying that this is a serious and complex area and therefore that if you think any of it may be relevant to you, you should seek advice from an experienced immigration lawyer at the earliest opportunity.
• For background, you’ll find more detail in Section 3 of the European Commission’s guidelines for better transposition and application of Directive 2004/38/EC, which you can find here.

(ii) Conduct which occurred after the end of the transition period

• The WA says that in the case of conduct which occurred after the end of the transition period, any decision taken by your host country to restrict your right of residence should be taken in accordance with national immigration law.
• This means that your host country will apply its own rules and policies and you would not be protected by the rules outlined in the previous paragraph. National rules differ between countries but may be more stringent than EU rules and include fewer safeguards.
• Once again, this is a serious and complex area and if you think any of it may be relevant to you, you should seek advice from an experienced immigration lawyer in your host country at the earliest opportunity.

(f) If you have abused your rights or committed fraud in order to obtain rights under the WA

The WA says that your host country can remove you from its territory if you have abused your rights or have committed fraud in order to obtain WA rights (Article 20(3)). It can do this even before you have received a final judgement in any appeal that you have made (Article 20(4), unless you also applied for an interim order to suspend enforcement of the removal decision. You must however be allowed to submit your defence in person.

Both abuse and fraud in a similar context (right of residence under EU free movement rules) have been given precision by EU case law. Abuse may be defined as ‘an artificial conduct entered into solely with the purpose of obtaining a right of residence which, albeit formally observing of the conditions, does not comply with the purpose of those rules’. Fraud may be defined as ‘deliberate deception or contrivance made to obtain the right of residence’ and is likely to be limited to forgery of documents or false representation of a material fact concerning the conditions attached to the right of residence. For more detail about this, see Section 4 of this Circular from the European Commission.

2. What can you do if your situation is complicated or borderline and you think you may not meet the residence conditions or may be refused residence for another reason?

If you think you may be refused a residence document or status, you should seek help and advice.

• Contact your embassy’s Citizens’ Rights team. You can find contact details for your embassy here, or on the About section of your embassy’s Facebook page.
• If your country and region are covered by one of the UK Nationals Support Fund organisations, contact that organisation to see if they are able to help. You can find out whether one of these organisations is operating in your region by consulting the UK government’s ‘Living in’ page for your country. You’ll find links to all of these pages here.
• Contact the European Commission’s Your Europe Advice (YEA) service. YEA consists of a team of 65 lawyers who cover all EU official languages and are familiar with the Withdrawal Agreement, EU law and national laws in all EU countries. You’ll receive free and personalised advice within a week. You can find out more here.
• Contact an experienced immigration lawyer but you will need to check first whether they are able to advise on the Free Movement Directive and the WA. Ask that question specifically and make clear that you are not simply looking for national immigration advice in relation to third country nationals in the country where you live.

3. What can you do if you have been denied a residence status or document under the WA or your residence rights have been restricted?

If you are refused residence rights under the WA or your residence rights are withdrawn or restricted, you must be notified in writing by the authorities in your host country. This must be done in such a way that you can understand the content and its implications for you, and you must be informed of the grounds on which the decision has been based. The letter may however be in one of the national languages of your host country and might not be written in or translated into English. You must also be informed how and where you can appeal against the decision, and what the time limit is for such an appeal. Any appeal will consider the legality of the decision that was made as well as the facts and circumstances on which it was based.

Each country’s appeal system is different, and depending on where you live, you may have access to either an administrative review/appeal system as well as a judicial appeal system. There are usually strict, and often short, time limits. You should take careful note of these as it is vital to make sure that any appeal is submitted on time.

If you live in a constitutive country and you have been refused residence status because you do not meet the required conditions (see Section 1(b) above), the WA says that no restrictive measures can be applied until a final decision has been made on your application (Article 18(3). This means that if you appeal, your status will be protected until your national court has made its judgement on your appeal.

If you have been denied a residence status or document or your residence rights have been restricted, you should consult an experienced immigration lawyer without delay. Note the advice above about what you should ask them before instructing them to deal with your case.

The information in this article is intended to give you a general overview of the provisions of the Withdrawal Agreement and our understanding of its provisions. Please remember that British in Europe cannot give specific personal advice on individual cases.