The 31 March is nearly here - why is this important?
We’ve all been on the relentless rollercoaster of deadlines and significant dates over the last few years, and after the end of the transition period on 31 December 2020 you could be forgiven for thinking that the last one had passed. While that may be true for many of you, it’s not the case for everyone, and this week we’re quietly approaching a date which is highly significant for some of you: Wednesday 31 March.
This is a key date for two reasons.
Firstly, it marks 90 days from the end of the transition period - and therefore the last day on which any British citizen who was already in the Schengen area on 1 January can stay without becoming legally resident.
Secondly, if you live in one of the five constitutive countries where the deadline for applying for residence under the Withdrawal Agreement residence permit is 30 June, you have just 90 days left to apply for your new status and permit if you haven’t done so yet.
As you can see, 31 March is a pivotal date, both looking backwards for 90 days to 1 January, and looking forwards for the same period to 30 June. We explain more below.
Looking backwards: 31 March and Schengen
As you know, British citizens became third country nationals on 1 January 2021 - and unless you also hold citizenship of an EU country, you are limited to spending 90 days in every 180 days in the Schengen area. This doesn’t apply, of course, to the EU country in which you are legally resident under the Withdrawal Agreement (your host country), although even if you’re legally resident in one EU country, you’re still bound by the 90/180 day rule for visits to other EU countries even though there is usually no internal border control within the Schengen area.
Who is affected?
Those who need to have 31 March highlighted in their diaries are likely to be those with second homes, or who are staying for an extended period for other reasons without being resident. If you’ve been in an EU country since 1 January but you’re not legally resident - maybe you prefer to keep your country of residence as the UK, or perhaps you don’t meet the conditions to be resident under the Withdrawal Agreement - 31 March marks the end of the 90 day period that you’re allowed to stay in the Schengen area as a British citizen.
This means that you’ll need to make plans to leave the country you’re in on or before 31 March, either returning to the UK or moving on to a country that isn’t part of Schengen.
What is the Schengen area and which countries are in it?
The Schengen area is a region of 26 European countries that don’t enforce border controls on travellers passing between member states. It doesn’t correspond exactly with the EU, as it includes certain countries that are not EU member states (Iceland, Norway, Switzerland and Lichtenstein). Certain EU member states (Cyprus, Ireland, Croatia, Romania and Bulgaria) are not currently part of the Schengen area, although non-resident British citizens are also limited to spending 90 days out of each 180 days in all of those except Ireland.
What happens if you don’t leave the Schengen area after 90 days?
You may, if you choose to and if you meet the conditions, still apply for a residence card under the Withdrawal Agreement. You can do this only if you were already resident in your country on 31 December and you intend to stay in your country for at least 6 months every year. Becoming a resident has implications for tax, health care, social security and other areas of your life so you would need to consider carefully whether this is for you. You can find more information about residence in our explainer here.
If you stay in the Schengen area for more than 90 days and you can’t or don’t wish to become resident, you will almost certainly be clocked as an overstayer when you leave: even if you arrived before 1 January and therefore don’t have an entry stamp in your passport, your passport will have been scanned on your arrival, and you won’t be able to show a residence card or certificate of application for a residence card to prove that you have a right to stay longer.
Overstaying not only turns you into an undocumented immigrant, but also brings penalties. These vary between countries, but may include fines, deportation or even an entry ban. You are likely to face difficulties too in returning to the Schengen area on a future occasion, with prolonged border checks on entry. Find out more here.
What if you can’t leave because of Covid?
No EU countries have currently completely closed their borders, so at present it remains possible for people whose residence is in the UK to travel back there, although you will be subject to compulsory Covid tests and quarantine on arrival. You should check with the British Embassy in the country where you are staying to find out the most up-to-date situation, and also check out the UK government website Covid travel page.
In the case of travel restrictions, the EU has recommended that member states extend the validity of the authorised period for a legal stay. Note though that this applies only in the case where travel is not possible and you are therefore compelled to stay beyond the 90 day period, and not should you simply choose not to travel.
If you are unable to travel because you have Covid, or for other serious health reasons, you should contact your national authorities to request an extension of your legally permitted stay.
Arrived after 1 January?
If you arrived in the Schengen area after 1 January, you’ll need to calculate the number of days you’ve been here in order to make sure that you don’t go over 90 days, and plan future trips carefully to make sure that you don’t exceed the overall permitted number of days. This can be quite complicated for repeated trips, so it’s a good idea to use one of the Schengen calculators, like this one.
Looking forwards: are you resident in France, Latvia, Luxembourg, Malta or the Netherlands?
If you were resident in one of these 5 countries before the end of the transition period on 31 December 2020, and you continue to be resident now, you have just 90 days left to apply for your new residence permit under the Withdrawal Agreement. All these countries have adopted a constitutive system, meaning that everyone has to apply for a new status and permit, and each has set the application deadline as 30 June 2021 (the other constitutive countries have set later deadlines).
It is really important that you make your application before this date. If you miss the deadline, your host country has to look at whether you had reasonable grounds for your late application. Neither the Withdrawal Agreement 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 by the deadline.
If you miss the application deadline of 30 June 2021 and you don’t have genuine reasonable grounds for doing so, you will be denied residence status under the Withdrawal Agreement. Depending on your circumstances you may be eligible to apply for other statuses in your home country (for example, as the spouse of a host country national or an EU family member), but be aware that missing the Withdrawal Agreement application deadline effectively leads to a break in your legal residence, which may affect applications for other statuses. You should carefully check the immigration rules for your country, and take advice from an experienced immigration lawyer if necessary. You may also be able to apply, as a third country national and under national immigration rules, for a long term visa/residence permit for your country, but the conditions for this are generally more onerous than under the Withdrawal Agreement and you may be required to leave your country in order to make your application in the UK.
Find out what you need to do to apply for residence under the Withdrawal Agreement by following the link for your country:
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