EU Commission: ‘A stamp in a British passport does not put residency rights into question’

EU Commission: 'A stamp in a British passport does not put residency rights into question'
Photo: AFP/UK Passport Office
After hundreds of British residents of EU countries had passports stamped when returning from the UK in the New Year the EU Commission has responded to The Local's request for information and advice on their behalf. Here's the response in full.
In recent days it has emerged that scores of British nationals living in EU countries have wrongly had their passports stamped with a date of entry when returning home. One couple was told to contact a lawyer by consular officials in Germany.

British nationals coming to the EU have previously not needed to have their passports stamped, but Brexit and the end of freedom of movement has changed things somewhat.

While visitors are now subject to the Schengen area's 90-day rule, meaning they can spend a maximum of 90 days out of every 180 in the Schengen area, those Britons legally resident in the EU are not, and therefore should not have their passports stamped.

But since January 1st scores of UK residents in the EU have seen immigration officials stamp their passports with an entry date when returning from the EU.

Many British nationals have contacted The Local, while citizens' rights groups have raised concerns that passport stamps may cause problems the next time British citizens leave the Schengen area if they are over the 90-day limit.

The Local asked the EU Commission to explain why passports were being stamped and what advice it had for British nationals.

 

Passports should not be stamped

Firstly the Commission confirmed that the passports of British residents whose rights are protected by the Brexit Withdrawal Agreement should not be stamped. EU officials have tried to get that message across to border police in all member states, they added. 

“We regret the difficulties some UK travellers encountered. We have worked very closely with member states on the implementation of the (Brexit) Withdrawal Agreement to avoid such difficulties. Overall, the changes linked to the end of the transition period and end of application of EU law on free movement of EU citizens to United Kingdom nationals were implemented smoothly.

“Withdrawal Agreement beneficiaries have a right to enter their host member state and their passports should not be stamped when they cross an external Schengen border.

“Withdrawal Agreement beneficiaries are moreover exempted from the Council Recommendation on the temporary restriction on non-essential travel into the EU linked to the coronavirus pandemic. As non-EU nationals legally residing in the EU, they must not be denied boarding for travels into the EU under the Council recommendation.”

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What if you have no post-Brexit residency permit? 

The problem for many British travellers resident in the EU is that they are not yet in possession of a new post-Brexit residency permit given that many governments have only recently opened the application processes. 

That has left them relying on trying to convince border guards themselves that there was no need to stamp passports.

The EU commission said it has created guidance for all border guards, but it seems that guidance is not being read.

The Commission said: “We have discussed these specific issues in three expert group meetings (June, September and 1 December) and prepared guidance in all languages.

“The final version has been put at the disposal of the member states on 4th December 2020 (in English) and on 23rd December in all other languages (Annex 42 of the Practical Handbook for Border Guards).

The guidance sets out how to identify beneficiaries of the Withdrawal Agreement before these beneficiaries are in possession of a residence document issued in accordance with the Withdrawal Agreement for the purpose of not stamping their passports.”

“We have also prepared a document containing all specimen which will evidence that a person is a beneficiary of the Withdrawal Agreement before being in possession of the document issued in accordance with the Withdrawal Agreement (Annex 43 of the Practical Handbook for Border Guards) based on the input received by Member States. This document has been transmitted to the Member States on 15th December (and updated on 21st December).”

 

Entitled to compensation

The EU Commission said any British traveller who was denied entry to a plane after failing to prove legal residency is entitled to compensation.

“We have also transmitted the information on future rules and provided the specimen to the International Air Transport Association (IATA)’s TIMATIC which provides carriers with information about entry procedures and visa requirements in all countries of the world. The onus is on airlines to apply the new rules correctly.

“UK nationals who have been denied boarding by an EU air carrier can seek compensation as well as reimbursement of their ticket or re-routing under Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, unless where the air carrier can prove in the specific case at hand that the denied boarding was based on reasonable grounds related to e.g. inadequate travel documentation.

“Please note that Regulation (EC) No 261/2004 would not apply to those denied boarding by UK carriers from January 1st, 2021. In this case, possible rights in case of denied boarding should be assessed on the basis of UK legislation.”

A stamp is no threat residency 

The final message from the Commission is that an erroneous passport stamp will not put residency rights into question.

It also said British nationals can ask border guards to cross out stamps, as some have done, according to reports we have received.

However, once again, it appears British travellers might have to explain themselves if those immigration officials have not read the “Practical Handbook for Border Guards”.

“If the beneficiaries of the Withdrawal Agreement can provide evidence that they have been incorrectly stamped, the stamp can be annulled by the border guard as explained in the Practical Handbook for Border Guards (see p. 68/69 of the Handbook).

“However, depending on national practices, some Member States may still stamp passports of beneficiaries of the Withdrawal Agreement, even if they hold notified documents: Member States may stamp residence permit they issued themselves and if this possibility is provided by national law.

“In any case, a wrong stamp in a passport can never put into question the right to reside in the host Member State.”

 


Member comments

  1. It seems that some people have had the best of both worlds and want their cake and eat it. If you have a home in an EU country besides a home in the UK, you can obviously afford to sort out your residency from the UK before you go back to your EU-country home. Also, you must have known something like the situation you are in would happen, once the referendum vote was announced – that’s four and half years ago. I sorted mine out long ago, even though I was in favour of the UK leaving the EU. I dislike the Schengen Agreement and see it as a way for a (Dis)United States of Europe, which will dilute each countries identity into dust.

    By the way, the two correspondents’ names – Robert Altinger and Raymond Attfield – sound like a psuedonym of each other. A coincidence?

  2. While not claiming residency rights, well not yet, we have had a home in Provence for nearly 50 years, have paid taxe d’abitation, and VAT, have a bank account and have,’till now spent 4 or 5 months in France. We have been deprived of our citizenship of Europe and access to our home and assume we must now apply for a visa.

  3. Of course going the other way, you are on your own. Priti Patel will doubtless deport you if you overstay an erroneous stamp even if you have UK residency established. Wouldn’t be the first time.

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