Residence Rights

SITTING COVID OUT AWAY FROM YOUR HOST STATE?
DON’T LOSE YOUR RIGHTS OF RESIDENCE

Because of COVID a lot of UK nationals resident in the EU are spending much more time than usual away from home. There are very often pressing reasons to do so. But if you are doing this, or if you know someone who is, make sure you/they do not lose rights of residence.

How could this be?

Under the Withdrawal Agreement (WA) there is a limit to the amount of time we can be absent from our host state without losing our residence rights.

• If you have permanent residence the permitted absence period is 5 years. You can find more about permanent residence in section 4 of our Explainer to the EU Guidance Note here.

• If you have ordinary residence then the basic permitted absence is a total of 6 months in a 12-month period. This can be extended 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.” The stated examples are illustrative not exclusive.

What counts as ‘important reason’ to extend the 6 month period?

Obviously if you exceeded the 6 months because you yourself were ill with COVID then that counts as an important reason for extending the 6-month period up to a maximum of 12. However, whether other COVID-related reasons (such as difficulty of travel or the need to look after a relative who is ill with COVID) will be allowed will depend on the particular facts, but will also probably vary from country to country and depend on the official who has to decide. So if you are in this group of people without permanent residence, be aware that if you do exceed the 6 months absence in a year you might be risking your residence rights.

Periods of absence

In some cases calculating periods of permitted absence can be difficult. For further advice or assistance in such cases contact Your Europe Advice, which is an EU advice service for the public provided by the legal experts from the European Citizen Action Service (ECAS) operating under contract with the European Commission. You can find out more about Your Europe Advice here, then go to the contact form here.

How do I prove how long I have been away for?

When you present for entry the border guard (in your host state or a transit EU country) is entitled to ask you questions about your residence. If you cannot convince the guard that you have not lost your residence by more than six months absence, or that you should be allowed the 12 months exceptional grace period, or that you have not been absent for over 12 months you can be denied entry while COVID rules restricting entry to residents are in force. When these COVID restrictions are no longer in force if you have lost your residence right you will be entitled to enter as a UK citizen but only on a 90-day Schengen visa.

You should, therefore, be ready to provide proof of your periods of absence and, if claiming more than 6 months absence for COVID-related reasons, to provide documentary proof of those reasons. Tickets will usually be the best proof of periods of absence but also any documents that show you were NOT away for over 6 months in the relevant period will help. If you are claiming COVID reasons your documentary evidence will also need to be convincing.

Incidentally, whenever you return to your host state or in a transit EU country, DO NOT WAIT FOR THE BORDER GUARD TO ASK WHETHER YOU ARE RESIDENT, but confidently hand over your residence card at the same time as your passport. If you do not yet have a residence card hand over whatever other proof of residence you have. Some people have waited to be asked about residence and been surprised when they got a 90-day stamp in their passport.

Should I come straight back to my host state then?

Obviously we are not telling you what to do, and everyone has to make their own decision about the situation they are in. What we are trying to avoid is that people should be sitting out COVID, perhaps with family in a safe environment in the UK, blissfully unaware of the risk to their residence rights.

Published: 17 March 2021