The authoritative source for independent research on UK-EU relations

27 Apr 2021

Relationship with the EU

Freedom of movement between the UK and EU stopped with the end of the transition period on 31 December 2020. The rights of UK citizens to live, work or study in the EU are now governed by a combination of the Trade and Cooperation Agreement, the Withdrawal Agreement, and the national rules of EU member states.

In this explainer we look at the position of UK citizens who live – or want to live – in EU and EEA member states other than Ireland (which remains part of a Common Travel Area with the UK).

It explains which UK nationals have the right to live in the EU, how they obtain this right and how the process is going. It also looks at how the new immigration rules affect British tourists. Business travel rules are covered in our explainer on mobility.

UK citizens

Who can apply for residence in the EU?

Under the terms of the Withdrawal Agreement, UK citizens and their family members who were legally resident in an EU member state before the end of the transition period (31 December 2020) are eligible for permanent residence in that country.

Family members can join a UK citizen who obtains permanent residence in an EU member state, even after the end of the transition period (although this does not apply to anyone who became a spouse after the end of the transition period).

Permanent residence protects their rights to continue to work and reside in that EU country. It does not protect their right to vote or stand for election, nor are they entitled to move or do business in another EU country in the way they could before the end of transition.

How is permanent residence obtained?

Broadly speaking there are two different ways UK citizens obtain permanent residence, depending on which EU country they reside in.

The first group of thirteen countries are operating a ‘constitutive’ system. This means that UK citizens need to formally apply for their new permanent residence status – much as EU citizens need to apply here.

The process typically requires the submission of documents such as one’s passport and evidence of legal residence before the end of the transition period.

The deadline set by the Withdrawal Agreement for applications is 30 June 2021, to allow a six month ‘grace period’ following the end of the transition period.

Eight countries are offering longer grace periods until either 30 September or 31 December 2021. Failure to submit an application by the deadline will lead to an individual losing their right to reside in that country.

The five countries operating to the 30 June deadline are France, Latvia, Luxembourg, Malta and the Netherlands.

UK citizens

The second group of fourteen countries – including Spain, Germany, Cyprus, Portugal and Italy – are operating a ‘declaratory’ system. Under this system, individuals who were legally resident in the country before the end of the transition period are automatically entitled to a new residence status. They do not face the risk of losing their residency status if they miss the application deadline.

In practice, however, many UK nationals will still need a new residence document to access their rights. That means they will have to submit an application proving they were resident prior to 31 December 2020, albeit without the cliff-edge of losing one’s rights permanently if an application deadline is missed.

The precise requirements and process varies country-by-country. For example, in Poland there is no obligation for UK citizens to obtain a new residence status or document.

In Spain, UK nationals can use existing residence documents until they expire, at which point they will need to obtain a new kind. British citizens in Germany without the necessary residence document are expected to notify the authorities by 31 June 2021.

How many UK citizens have obtained permanent residence in the EU?

In December 2020, the UK and EU estimated that just over one million UK nationals and their family members were resident in the EU.

Around 300,000 of these were thought to live in countries with ‘constitutive’ systems where they will need to apply for permanent residence before a deadline.

As of 11 December 2020, 87,000 applications had been received and 32,000 approved.

Roughly half of the 300,000 UK citizens in question are resident in France. As of December 2020, 49,000 applications for permanent residence had been received. By early February, the number had increased to 90,000.

There were estimated to be roughly another 730,000 UK citizens resident in countries operating ‘declaratory’ systems, where UK citizens may not be required to apply for a new residence document, or only once their existing document has expired.

As of 11 December 2020, around 82,000 applications had been received and 54,000 approved. The vast majority of these were in Spain – where there are estimated to be 360,000 UK citizens resident.

UK citizens

However many countries are yet to submit any data. A new, EU-wide data release is expected later this month, which will give a much clearer depiction of the latest.

The UK-EU estimates of the number of potential applicants could also well be an underestimate. Applications for settled status in the UK are already around 50% above initial estimates of how many people were eligible.

What happens to people who fail to meet the deadline?

EU guidance says that under constitutive systems ‘failure to apply in time may lead to a loss of any entitlement under the Withdrawal Agreement’. Those entitlements include the right to live in the EU country of which an individual is resident.

What happens in practice will depend on how individual countries operating constitutive systems choose to enforce their rules, including any appeal systems.

There could also be gaps between the deadlines referred to above – which are the cut-off points for submitting paperwork – and action being taken against those who have not done so.

France, for example, has a deadline for submitting an application of 30 June 2021, but UK nationals will only be required to hold a residence permit from 1 October 2021.

Under declaratory systems, in some cases there are deadlines for UK citizens to register their new residence status (for example 30 June 2021 in Slovakia). However missing the deadline can result only in a fine, and not in the loss of the rights which an individual has under the Withdrawal Agreement.

What happens to people who think their application has been unfairly rejected?

In both constitutive and declaratory systems, UK nationals have a right to appeal if their application for a permanent residence status/document is rejected. They maintain their right to residence until a final decision is made on their appeal, unless they are considered to pose a threat to public security.

The European Commission will monitor the application of citizens’ rights provisions in the EU to make sure they are consistent with the EU’s treaties – of which the European Court of Justice is the ultimate arbiter.

Can these people move to another EU country?

Not permanently. The Withdrawal Agreement gives UK Citizens the right to live permanently only in the EU country of which they were legally resident as of 31 December 2020.

That right is lost if an individual is absent from their EU country of residence for more than five years.

A UK citizen with permanent residence rights in one EU country would have to comply with national migration processes for third country migrants to move to another – the same rules that apply to people moving from the UK.

However, under a separate EU Directive, once a UK citizen (or any other third country national) has been resident in a member state for five years, they obtain to the right to move to another member state for longer than three months for purposes of employment, study or training.

Is the situation the same for British residents in EEA countries?

Yes. The UK has signed a separate agreement with the three non-EU countries in the European Economic Area (EEA) – Norway, Liechtenstein, Iceland – and another with Switzerland. These four countries all have freedom of movement with the EU.

The two agreements grant UK citizens resident in those countries the same permanent residence rights as provided for by the Withdrawal Agreement.

Norway is operating a constitutive system for obtaining permanent residence (with a deadline of 31 December 2021 for applications), while Switzerland, Liechtenstein, and Iceland are operating declaratory systems.

Can people still retire to the EU, or move there for work or study?

Yes, although they will not have an automatic right to do so. Individuals will need to make sure they meet an individual member state’s immigration rules before they move there for any longer-term purpose.

British nationals looking to retire in Spain, for example, would generally need a visa that either requires them to demonstrate sufficient savings to support themselves, or is subject to them making a major capital investment in Spain.

Those looking to move for work will need a work permit, and in most cases will also require a job offer before they can obtain the necessary visa.

British students seeking to study in the EU would need to ensure they complied with any entry requirements before moving, and would be subject to any higher fees charged to non-EU nationals.

The UK is no longer part of the EU’s Erasmus+ scheme which funds educational and training opportunities across the EU over seven years (€26.2 billion over the next seven years). However, the Irish government has said it will continue to provide funding for students at Northern Irish universities to access the scheme.

The UK government is setting up an alternative Turing scheme which will provide £100 million of funding for UK students to go on placements overseas from September 2021.

What are the new rules for British tourists in the EU?

The situation for UK short-term visitors to the EU (i.e. tourists) also changed with the end of free movement.  There are now limits on how long British nationals can spend on holiday in the EU.

Under the new rules, short-term visitors with a UK passport may spend a maximum of 90 days in the EU in any 180 day period.

The time can be spent across anywhere in the Schengen Area, which is a group of 26 countries (22 EU member states plus Iceland, Norway, Switzerland and Liechtenstein) that individuals can move freely between without border checks.

Bulgaria, Croatia, Cyprus, Romania and Ireland are the five EU member states not in the Schengen Area. The first four apply their own 90-day policies for UK citizens, while the UK and Ireland have a separate agreement facilitating free movement.

The UK is part of a group of countries whose citizens are exempted from needing a visa for short visits to the EU. For those wishing to stay beyond 90 days, entry requirements vary according to each country.

From 2022 UK citizens will need to have a ETIAS – an electronic travel permit for tourists which waives the requirement for a visa. Travellers have to input basic information such as their name and passport details, and those over 18 need to pay a €7 fee.

What happens if you stay beyond 90 days?

A UK citizen who spends over 90 days in the EU during a 180 period – without any other form of leave to remain – would be illegally present.

This became a tangible risk for the first time on 1 April 2021 – the 91st day following the end of the transition period.

The EU says that staying for over 90 consecutive days can ‘result in a re-entry ban to the Schengen area’, adding that ‘depending on the member state administrative penalties may also apply.’

In reality, what happens is down to how individual EU member states choose to manage the policy and take action against overstayers.

For example, in 2020 EU states took various courses of action to grant extended stays to individuals who had overstayed the 90 day limit, due to the unprecedented travel restrictions caused by the Coronavirus epidemic.

Has anyone been deported?

On 28 March the Daily Express reported that Spanish police were planning to deport ‘within weeks’ around 500 UK citizens who lacked the correct paperwork – a claim the Spanish government promptly denied.

There have so far there been no reports of deportations or targeted searches in Spain or other EU member states.

By Joel Reland, Public and Foreign Policy researcher at the UK in a Changing Europe.

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