19 May, 2020
Brexit and the UK Withdrawal Agreement from the European Union
What will be the implications for the right of residence of United Kingdom citizens residing in Portugal in the midst of Brexit and the UK withdrawal agreement from the European Union?
Let’s say that we expected to find ourselves in better circumstances. We hope, however, to find you all safe and in good health.
These are difficult times during which we write to you. Times of pandemic that holds some in their homes and pushes others for action in a risky scenario, limiting our freedom and, mainly, the comfort of the predictability of tomorrow.
However, and simultaneously, even far away, deprived of socializing, we are even closer, more united and better prepared for what’s to come, so that together we can rise each and every one of us.
That said, and because we believe it benefits us all to take the time to think about other issues and prepare for later, here are some brief notes long overdue on what to expect from Brexit now that the Withdrawal Agreement was approved.
That is, until 12/31/2020 everything remains exactly the same, the European regulations continue to be applied to the United Kingdom, including the free movement of people and goods. The United Kingdom only lost the right to be represented and the right to vote in the European institutions.
It is called a “transition period”.
Therefore, until 12/31/2020, any British citizen may apply for a temporary residence permit when residing in Portugal for more than 3 months, under the provisions of art. 7 of Law no. 37/2006.
Namely if you:
- a) Exercise a subordinate or independent professional activity in Portuguese territory;
- b) Have enough resources for yourself and your family members, as well as health insurance, provided that this is required in the Member State of your nationality to Portuguese citizens;
- c) Be registered in a public or private educational establishment, officially recognized, provided that you prove, by way of a declaration or other means of proof of your choice, that you have sufficient financial resources for yourself and your family, as well as having a health insurance, provided that this is required in the Member State of your nationality to Portuguese citizens;
- d) Be a family member who accompanies or meets a Union citizen covered by the preceding paragraphs.
You retain the right to temporary residence under the terms of article 9 of the same Law – that is – as long as the circumstances under which you acquired this right under the terms of the aforementioned article 7 are maintained.
However, and in order to start timing your residence time for the purpose of acquiring the right to permanent residence – 5 years – paragraph 4 of article 10 of Law 37/2006 states that the continuity of residence is not affected by absences not exceeding 6 consecutive months per year. Longer absences only in specific cases such as fulfilling military obligations, or up to 12 months at the most, for justified reasons such as professional posting to another country, illness, pregnancy or childbirth, studies or professional training (art. Law 37/2006).
Because it is a question asked several times, please note that this does not mean that you must stay in Portugal for 6 months. The 183 days of stay in Portugal is a requirement only for the purposes of tax residence (important in the case of maintaining the Non-Habitual Resident Status (NHR) or in the case of maintaining the right of temporary residence for third-country nationals.
Under the terms of article 279 of the Civil Code, the first day of counting the periods of absence is the day following the departure of the national territory. In practice, to lose the right to continuity of 5 years for permanent residence, the European citizen would have to be absent, for example, on May 31 and return to Portugal after December 31. Any visit to Portugal during this period would imply a restart in the count of 6 months in the following absence.
British citizens who are or will be until 12/31/2020 legally residing in Portuguese territory for more than 5 years, can apply for permanent residence, without having to prove the circumstances stated in article 7 – thus art. 10 of Law 37/2006.
It should also be noted that, although the process is simplified when applicants have the temporary residence permit issued by the Municipal Councils, the right of residence may, in accordance with article 21 of the aforementioned Law and under Community provisions, be proved by any means of proof.
It is clear that the presentation of the certificate issued 5 or more years ago, greatly simplifies the process, obviating the need for an administrative procedure grafted into the process of issuing the permanent residence card.
According to the directive, the acquired right to permanent residence is only lost when the holder is absent from national territory for a period exceeding 2 consecutive years. However, and under the terms of the agreement (art. 11, and 15 (3) of the text of the agreement), this period will change to 5 years.
This change will have no practical consequences during the transition period if the initial deadline of 12/31/2020 remains. However, and if it is extended for another 1 or 2 years until July, it seems to us that the only period to be considered will have to be 5 years for the purpose of assessing the maintenance of the right of residence.
As explained here once you have 5 years of residence in the last 15 years, it is always possible to apply for the Portuguese nationality.
And what happens after the transition period?
The United Kingdom will be considered a third country in the Schengen zone, which does not provide free movement rights for people.
We can now, finally, know what will happen after the effective departure from the UK, right? Not exactly.
To date, there is no concrete information on what will happen after the transition period, which can even be postponed by 1 or 2 years if agreed by the parties until 1 July.
And most likely the transition period will, in fact, be extended, considering not only the uncertainty of the current scenario in which we live in the face of the pandemic of COVID 19 but the fact that Michael Barnier, mandated to mediate and guide the negotiations, finds himself quarantined by the infection of the virus that unfortunately victimized him.
During this period, the European Union and each of the 27 Member States will negotiate specific agreements with the United Kingdom, with the certainty that this may result in a myriad of specificities that are impossible to anticipate.
However, what does exist are directives, guidelines, principles that the parties have committed to respect while conducting their negotiations and in the agreements to be established. This, of course, if the United Kingdom complies with the requirements of the agreement, namely those concerning the borders between Ireland and Northern Ireland.
Note that neither Member States nor the United Kingdom can adopt legislation contrary to the text of the agreement. Any citizen can directly invoke its text before any entity or court, even when there is no domestic legislation in the host country.
There are several matters covered in the withdrawal agreement and political declaration and for which new rules will have to be established and agreed with the United Kingdom. Here we will focus exclusively on the guidelines provided for the right of residence for EU and UK citizens – after the transition period has ended, for as we have seen, until then, the application of European rules remains mandatory.
The guiding principle of negotiations in this area, to be safeguarded at the end of the transition period, will always be to protect the life choices of UK and EU citizens when they chose to live, work or study in any of the 28 member states.
You must be aware that this transition from Citizen of the European Union to Citizen of the United Kingdom and vice versa with special residence status, may not be automatic. It will depend on the UK’s negotiations with each Member State.
Thus, a “constitutive system” or a “declarative system” can be in force (see Art. 18 and 19 of the Agreement).
In the first case, the host State may require citizens covered by the agreement to specifically request a change in the residence status.
In the United Kingdom, this will be the system in place for nationals of other Member States.
In the declarative system, the entitlement to the rights provided for in the agreement by the citizens covered by it is automatic. In this case, the beneficiaries must still receive a residency document, which may be digital, accompanied by a declaration that it has been issued under the terms of this Agreement.
Therefore, the agreement always starts from the assumption that this transition will occur, and intends, in this way, to standardize as much as possible the way in which this transition will occur, determining the rules that will serve as a basis.
Who is covered by the withdrawal agreement regarding the right of residence?
The following are expressly covered:
– all EU citizens residing in the UK as well as nationals of the UK residing in any of the 27 Member States of the European Union at the end of the transition period and that remain residents there – provided that their residence is in accordance with EU legislation on free movement.
That is to say, as speculated here (https://evagarcia.pt/brexit-is-coming-what-you-should-be-doing-right-now/) citizens with a valid residence permit (art. 14 or 16 of Law 31/2006). However, in Portugal, and as already provided in Law No. 27-A / 2019 resulting from the Contingency Plan approved by the Council of Ministers in a possible departure of the United Kingdom without an agreement, it is assumed that the situation of the UK citizen who can prove to reside legally in national territory will be safeguarded. We strongly advise you not to wait to find out if this is the case and to take advantage of the transition period to regularise your situation.
-The family members of the citizens mentioned even if they do not yet live in the host country and wish to join;
– Children, under any circumstances;
– Frontier workers;
It should be noted that, in accordance with the provisions of the 2nd paragraph of Article 11 of the Agreement, for the purpose of determining inclusion in the personal scope of the Agreement, absences for periods longer than those set out in Article 16 of the Directive and 15 of the Agreement ) cannot be considered.
In other words, the holder of the right of temporary residence obtained until the end of the transition period will continue to be the beneficiary of the extension of the agreement, even if he is absent for periods longer than what’s contemplated for there, which only impact (as he was already under the Directive) for the purposes of timing the 5 years of permanent residence.
What rights are protected?
– Firstly, it is guaranteed that all citizens concerned will benefit fully from the prohibition of any discrimination on grounds of nationality and the right to equal treatment with nationals of the host country. This will be the case for the rest of their lives, whenever these rights are based on life options assumed before the end of the transition period. The only restrictions will be those arising from Union law itself or from the agreement.
– The right of residence – the material requirements for legal residence will remain exactly the same as those provided by the current legislation (Directive 2004/38 / EC implemented in the Portuguese legal system in Law no. 37/2006, August 9).
In the event that the host country has opted for a mandatory registration system under Union law – which is the case in Portugal – the granting of the new status will be based on objective criteria – in other words, following the verification of the same conditions required now and established in the current law.
Thus, the conversion from resident status as EU citizen to UK citizen after the transition period should be guided by the same rules now established for temporary residence for 5 years as well as for the right of permanent residence.
If the citizen covered by the agreement already has the right of permanent residence, the conversion of the status will be carried out without it being subject to any conditions, and the citizen may exchange it free of charge for the “special status” of UK or EU resident.
We are, however, unaware whether the fulfilment of the requirements for obtaining the right of temporary residence will be assessed ex novo after the transition period when the titles are converted, or whether we will simply be facing a conversion of the right already acquired, maintaining the validity of the new titles – that is, for example, if the citizen has been a resident for 3 years under the Union Law, he will be issued a new 2-year residence permit or a new one 5-year title.
With regard to the entitlement to the right of permanent residence, the criterion will remain that of legal residence for 5 years preceding the application, and, as expressly stated in the Agreement, we should consider periods of legal residence (for the purposes of residence and nationality, we risk), the legal residence periods prior to departure.
This will mean that if a UK citizen legally residing in a member state under Union law, completes the 5 years of legal residence after the transition period, he can apply for the right of permanent residence under the rules of the directive.
This issue is of particular importance to us, as, in accordance with the Directive, knowledge of the Portuguese language is not required for citizens of the European Union, contrary to what happens in the application of the Foreigners’ Law to nationals of third countries.
It should be noted that the citizens covered by the agreement, in order to benefit from these rights, do not need to be in person in the host State at the end of the transition period.
In other words, the impact of temporary absences on maintaining the right of temporary residence for citizens covered by the withdrawal agreement remains that which was provided in the directive and referred to above.
As for permanent residence, the provision of article 15, paragraph 3 of the agreement, stipulates that the right of permanent residence, once acquired, is not lost as long as the citizen is not absent from the host State for a period of 5 consecutive years, thus extending the 2-year period provided by the Directive.
Finally, it should be noted that until the end of the transitional period, it is still possible for a UK national wishing to reside in another member state, to obtain a temporary right of residence under the directive, benefiting from the same rights and obligations arising from the Withdrawal Agreement as to all citizens who entered the host State before 02/01/2020 – provided that, and in accordance with the provisions of article 11 above, they do not leave the host State for a period longer than 5 years.
In other words, absences of up to 5 years do not imply the loss of the right to temporary residence acquired until the transition period. However, absences of more than 6 months (or longer periods in the specific cases provided by the Directive) impact the counting of the 5-year period for the purposes of acquiring the right of permanent residence.
Administrative procedures for the conversion of residence permits have yet to be defined, although the EU guidelines are aimed at attaching particular importance to the existence of simple and efficient administrative procedures, only what is strictly necessary and proportionate may be required to ascertain the satisfaction of the legal residence criteria.
Other rights covered by the Agreement regarding the matter of residence are:
– Right to social security – the right to access health care, pensions and other social security benefits will be maintained, and they may also receive cash benefits from one State in the country of their residence;
– Right to free exercise a profession on a self-employed or employed capacity by the citizens covered by the agreement;
– Right to maintain the validity of previous decisions to recognize the professional qualifications of the citizens covered by the agreement, regarding pending procedures.
Thus, at the end of the transition period, the idea will be that the bilateral agreements to be concluded between the UK and the 27 Member States, respect these guidelines with regard to the rights of citizens who, in the context of the inherent right to free movement in the European Union, have chosen to live in the UK being nationals of any other Member State or vice versa.