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RESIDENCY PERMITS

Brexit: Five key things to know about applying for residency in the EU

As tens of thousands of Brits across Europe prepare to begin the process of applying for residency rights to ensure their right to remain after Brexit, here are five key points you should know, thanks to British in Europe.

Brexit: Five key things to know about applying for residency in the EU
Photo by Markus Spiske

British nationals across Europe are facing a crucial time over the coming weeks and months as most face the prospect of having to apply for residency or at least register with authorities as a way of ensuring their future in the EU.

While the Withdrawal Agreement was ratified in January this year EU countries have the task of implementing the rights it guarantees British Citizens in the EU.

And things are moving slowly, with the UK having made more progress in registering EU citizens.

“Across the EU things are very much further behind than in the UK,” Kalba Meadows from British in Europe told a parliamentary committee this week.

“In fact there are only three EU countries where implementation (of the Withdrawal agreement) has begun: Italy, Netherlands and Malta,” she said

Other countries are at different stages with some having legislation in place to ensure the rights of Brits are guaranteed whilst others do not, she explained.

British in Europe have helped spell out some important points on the issue of residency rights and the procedures that British readers should be aware of. The points below are taken from British in Europe's Guidance note.

1. There's no minimum duration for living in a country before December 31st 2020

You will be covered by the WA for residence if you (a) lived legally (see above) in your host country before the end of the transition period and (b) you continue to do so afterwards. All possible situations where the right of residence stems from free movement rules are included.

This includes ordinary residence, whether you’re employed, self-employed, self-sufficient or a student; permanent residence; residence as a family member; and residence under the special rules for jobseekers.

There is no minimum duration for having lived legally before the end of the transition period. Example: you move to Finland to take up employment on December 1st 2020 and remain there after December 31st 2020. You are covered by the WA.

2. You don't actually need to be physically in the EU on December 31st

You don’t need to be physically present in your host country at the end of the transition period to be covered by the WA, as long as you remain legally resident on that day.

This is because as a legal resident you are allowed to be absent from your host country for certain periods without losing your residence rights: As an ordinary resident, you can be away from your host country for no more than 6 months every year without losing your resident status.

You’re allowed one longer absence of up to 12 months in the 5 year period for ‘important reasons’: eg childbirth, serious illness, study, vocational training or posting elsewhere (this is not an exhaustive list).

Once you have acquired permanent residence under the Withdrawal Agreement, you can be away from your host country for 5 years – an increase on the 2 years permitted for EU citizens – and still retain the right to return and keep your rights of permanent residence.

3. Rights don't change if you lose or change your job

Your right of residence under the WA in your host country is not affected if you change your status. Your ‘status’ for this purpose represents the category under which you are exercising your free movement rights: employed, self-employed, non economically active and self-sufficient or student.

So your rights are not affected if, for example if you stop being a student and start work, if you stop working and become non-economically active and self-sufficient, or if you move between the categories in any other way.

You can also hold more than one status at one time – for example you can be a student who is simultaneously self-employed. There are no procedural consequences attached to a change of status – you don’t have to report it to your registration authority or apply for or request a new residence document.

4. The qualifying period for permanent residency doesn't have to be the last 5 years

If you already hold permanent residence status under current free movement rules at the end of the transition period, you will be eligible for permanent residence status under the WA.

If you have not been resident long enough to acquire permanent residence status under the WA at the end of the transition period, you can continue to build up your years until you reach 5 years, when you will be eligible for permanent residence under the WA.

Periods both before and after the end of transition will be taken into account. One very important precision is that the qualifying period of residence does not have to be immediately before the moment when the right of permanent residence is claimed.

This means, for example, that if you have been resident in your host country for over 5 years but your circumstances changed recently, leaving you struggling to meet the conditions, you can call upon an earlier period of residence during which you did meet the conditions to use as your qualifying period.

5. Deadlines could be crucial depending on the country you are in

13 countries are adopting a constitutive system.

We still await the published list, although most countries now have stated which they will adopt. In a constitutive scheme you acquire residence status only if (a) you make an application for it and (b) that application is granted. In other words, the ‘source’ of your residence status and the rights that stem from it is the decision on your application made by the registration authority in your host country. It’s that decision, and the residence document that is issued as a result, which confers your residence status.

This is how ‘settled status’ works in the UK, and it also corresponds to the type of system used to deal with residence applications in EU member states from third country nationals. In a constitutive scheme, if you miss the deadline to apply for a new status under the WA or your application isn’t successful you will have no residence status and therefore in principle no legal right to reside.

This means that, if your host country is operating a constitutive scheme, it is crucial that you meet the deadline for applying for your new residence status. This deadline cannot be earlier than 30 June 2021 (6 months after the end of the transition period) and in some host countries may be later – but don’t miss it!

British in Europe stress that it's important to read their full guidance note to understand all the issues around gaining residency in an EU country. You can read the full document HERE.

 

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WORK PERMITS

What are my rights while I wait for my Swedish residence permit to be extended?

Many foreigners living in Sweden need to have a residence permit to live in the country legally. Permits are issued for two years at a time and can be renewed 30 days before expiry, at the earliest. But with waiting times exceeding 8 months for many applicants, just what are your rights while you wait to hear back?

What are my rights while I wait for my Swedish residence permit to be extended?

Can I keep working in Sweden?

It depends. If you have a residence permit which allows you to work in Sweden, have held that residence permit for at least six months and apply for an extension before your old permit expires, you still have the right to work in Sweden while you wait for the Migration Agency to make a decision on your permit application.

You can apply for a new residence permit 30 days before your old permit expires, at the earliest, and you can’t get a new residence permit before your old one has run out.

Can I leave Sweden?

Technically you can, but it might not be a good idea. This is due to the fact that if you leave Sweden after your residence permit has expired, it can be difficult to enter Sweden again before your new permit is granted, even if you can prove that you’ve applied for a new one.

In the worst-case scenario, you could be denied entry to Sweden at the border and forced to wait in another country until your new residence permit is granted. 

If you find yourself in this situation, you can, in some cases, apply for a national visa allowing you to re-enter Sweden. These are only granted under exceptional circumstances, and must be applied for at a Swedish embassy or general consulate in the country you are staying in. If you are not granted a national visa to re-enter Sweden, you can’t appeal the decision, meaning you’ll have to wait until your residence permit is approved before you can re-enter Sweden.

The Migration Agency writes on its website that you should only leave Sweden while your application is being processed “in exceptional cases, and if you really have to”.

It lists some examples of exceptional cases as “sudden illness, death in the family or important work-related assignments”, adding that you may need to provide proof of your reason for travelling to the embassy when you apply for a national visa to re-enter Sweden.

What if I come from a visa-free country?

If you come from a visa-free country, you are able to re-enter Sweden without needing a visa, but you may run into issues anyway, as visa-free non-EU citizens entering Schengen are only allowed to stay in the bloc for 90 days in every 180 before a visa is required.

If you are a member of this group and you stay in Schengen for longer than 90 days without a visa, you could be labelled an “overstayer”, which can cause issues entering other countries, as well as applying for a visa or residence permit in the future.

The Migration Agency told The Local that “a visa-free person waiting for a decision in their extension application can leave Sweden and return, as long as they have visa-free days left to use”.

“However, an extension application usually requires the individual to be located in Sweden,” the Agency wrote. “Travelling abroad can, in some cases, have an effect on the decision whether to extend a residence permit or not, in a way which is negative for the applicant, but this decision is made on an individual case basis (it’s not possible to say a general rule).”

“The right to travel into the Schengen area for short visits is not affected, as long as the person still has visa-free days left.”

The Local has contacted the Migration Agency to clarify whether days spent in Sweden count towards the 90-day limit, and will update this article accordingly once we receive a response.

Does this apply to me if I have a permanent residence permit?

No. This only applies to people in Sweden holding temporary residence permits. If you have a permanent residence permit and your residence permit card (uppehållstillståndskort or UT-kort) expires, you just need to book an appointment at the Migration Agency to have your picture and fingerprints taken for a new card.

How long is the processing time for residence permit renewals?

It varies. For people renewing a residence permit to live with someone in Sweden, for example, the Migration Agency states that 75 percent of recent cases received an answer within eight months.

For work permit extensions, it varies. In some branches, 75 percent of applicants received a response after 17 months, others only had to wait five.

This means that some people waiting to extend their residence permits could be discouraged from leaving Sweden for almost a year and a half, unless they are facing “exceptional circumstances”.

You can see how long it is likely to take in your case here.

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