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

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.

Published: 9 January 2021 13:26 CET
Updated: 9 January 2021 15:04 CET

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

Photo: AFP/UK Passport Office

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

Anonymous - 11 January 2021 at 16:50 CET

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.
Anonymous - 11 January 2021 at 18:04 CET

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.
Anonymous - 14 January 2021 at 11:57 CET

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?

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What Labour's UK election win means for Brits in Spain

The Labour party won a landslide victory in the UK general election on Thursday, bringing an end to 14 years of Conservative party rule.

The result has gained significant coverage in the Spanish press on Friday morning, reflecting the sense that it’s a sea change moment for British society.

El País went with the headline: “UK ends Conservative era, gives Labour’s Starmer a historic majority.” Spanish daily El Mundo reports: “Labour’s ‘supermajority’ ushers in a new era in the UK.”

Online outlet 20 Minutos chose to highlight the longevity and unpredictability of Tory rule: “Conservative decline in the UK: Brexit, an 8-year ordeal and five leaders gives way to the Labour party.”

Spain’s Prime Minister Pedro Sánchez congratulated Starmer on Twitter/X this afternoon, saying that “Spain and the UK are friends, partners and allies. We will continue to work together to tackle global challenges on the basis of our shared values.”

Enhorabuena, @Keir_Starmer, nuevo primer ministro de Reino Unido.

Felicidades por la histórica victoria del laborismo, @UKLabour, en las elecciones.

España y Reino Unido son países amigos, socios y aliados. Continuaremos trabajando juntos para hacer frente a los retos globales…

— Pedro Sánchez (@sanchezcastejon) July 5, 2024

Labour ‘supermajority’

The new Labour government enters office at a time of high political and economic uncertainty, stagnant growth, public services pushed to breaking point, and Britain’s international reputation tarnished after the Conservative government staggered from calamity to calamity in recent years.

Leading up to the election, the question was not if Labour would win but when, and how big the majority will be. In the end Labour has won one of the biggest landslides in British political history, taking 412 seats. However, in terms of vote share it won just 33.8 percent of the vote, less than when it lost in 2017 under the leadership of Jeremy Corbyn.

The Conservatives polled 23.7 percent, a staggering fall from the 42.4 percent it won in 2019 under Boris Johnson, and has been reduced to 121 seats.

Smaller parties and independent candidates also had successful nights and capitalised on the general malaise and anti-Tory feeling in the country. As such, many political pundits are viewing this huge Labour victory not as an endorsement of the party or Keir Starmer, but an anti-Tory majority.

Many this morning will, despite having just handed the party a huge landslide victory, be wondering what exactly Labour intends to do with this power.

For many Brits in Spain (as well as those in the UK), the elephant in the room in this regard is, of course, Brexit.

What the new Labour government does (or more likely, doesn’t) do with its massive majority could have big implications on life for approximately 400,000 UK nationals living in Spain.

Sue Wilson MBE, Chair of the Bremain in Spain pressure group, told The Local that she was happy to see the back of the Conservative government that denied British citizens’ rights abroad: “Though not unexpected, we are delighted to be rid of the Tory government that caused so much economic damage, wasted so much taxpayers money and that gave us Brexit.

“They robbed British citizens in Europe of so many valued rights and benefits whilst destroying the dreams of so many in the UK that hoped to follow in our footsteps. That option is now only available to the well off,” she added.

Keir Starmer (R) in 2017, back when he was the Labour Party’s Shadow Brexit Secretary. (Photo by Geoff CADDICK / AFP)

Starmer and Labour’s Brexit policy

But what, if anything, does a Labour government actually mean for Brexit and Brits in Spain?

For many, Starmer first came to national prominence in his role as Brexit secretary in the Corbyn shadow cabinet. He was then an ardent Remainer, and largely responsible for Labour’s eventual position on a second referendum, demanding that the British people deserve a “confirmatory vote” on Europe.

How things have changed. In the build-up to the election Starmer categorically ruled out the idea of rejoining the single market and the customs union, let alone a second referendum on rejoining the EU. He has, however, stated that he will take steps to ease trade barriers and sign a bolstered security agreement with Brussels.

Asked recently by the British press if he could envision Britain re-entering the EU in his lifetime, Starmer was unequivocal. “No. I don’t think that that is going to happen,” he said. “I’ve been really clear about not rejoining the EU, the single market or the customs union – or a return to freedom of movement.”

In essence, despite his Remain-backing past, Starmer’s position seems to be that Labour can improve the Brexit deal signed by the Johnson government in January 2020, rather than tear it up or try and force the UK back into the EU on new terms.

For those hoping to rejoin the EU, this will be disappointing. Brexit became something of an internal psychodrama for the Conservative party, yet Starmer’s Labour appear to have accepted it as the political framework and don’t dare to reopen the debate.

For the 400,000+ UK nationals living in Spain, this will dash dreams of potentially improving their residency rights, working and tax arrangements, and family and living situations.

Data released by Eurostat in November 2023 showed that of a total of 858,000 Britons with the right to live in EU Member States post-Brexit, 412,000 (48 percent) reside in Spain. UK nationals make up one of Spain’s largest migrant groups.

A man holds European Union and British flags during a protest against Brexit in Málaga in 2019. (Photo by JORGE GUERRERO / AFP)

Does this actually change anything for Brits in Spain?

Labour has been tight-lipped on what its Brexit policy will actually mean in practical terms, but of the few concrete proposals it has outlined so far there are plans to revamp a veterinary deal on animal products to ease on paperwork and border checks, as well as making it easier for qualifications to be recognised abroad.

Labour has also promised to enshrine rights to consular assistance for UK citizens abroad in cases of human rights violations, and to make reciprocal arrangements for touring artists and musicians moving between the UK and EU.

In terms of broad strokes commitments, however, it’s hardly ambitious.

With regards to Labour’s largely non-committal approach to Brexit, Wilson of Bremain in Spain tells The Local: “As for the new government, their insistence that the single market, customs union and EU itself is off the table flies in the face of growing public opinion. Hopefully, that position is unsustainable, and it is one we will continue to challenge.”

One way that it may still become unsustainable over time is due to the economy. Starmer and his soon to be Chancellor of the Exchequer, Rachel Reeves, have bet almost their entire political platform on securing economic growth.

Getting the economy growing in order to invest, rather than increasing taxes or borrowing, has been the Labour economic message.

However, experts suggest that rejoining the single market or customs union would significantly boost the British economy, so some hold out hope that the political and economic reality may force the new Labour government to reconsider its position on Europe somewhere down the line.

Cynics of Starmer suggest that his cautious Brexit position, as with U-turns on other policy areas including the Green New Deal policy, was part of a wider campaign strategy to remain uncontroversial and win the election by default. Critics argue this is evidence of backtracking on pledges and saying whatever is necessary to win power.

For Spain’s británicos, as well as millions of pro-Europeans back in the UK, they will hope this was indeed an electoral ploy rather than a hardline position, and that Starmer, now backed by a massive Commons majority, will have the confidence to rekindle some of his Remainer instincts.

96 percent of Gibraltar’s population voted for the UK to remain in the EU in the 2016 referendum. (Photo by JORGE GUERRERO / AFP)

Closer UK-EU ties

However, though the prospect of a second referendum or fully rejoining the EU seems unlikely, rebuilding Britain’s relationship with the EU does seem more plausible under a Labour government.

The man expected to be the next Foreign Secretary, David Lammy, has stated that a Labour victory could symbolise a new page in UK-EU relations.

Speaking to the Foreign Press Association, Lammy said recently: “I think we are in a cycle where we have to turn the page on the rancour and some of the bitterness that we’ve seen in the past and move forward.

Gibraltar

One glaring aspect of this is Gibraltar. Though Boris Johnson’s landslide 2019 victory was won on the premise of getting Brexit ‘done’, in reality the deal negotiation by the Johnson government was incomplete.

Despite the referendum vote being eight years ago, and the UK officially leaving the EU four years ago, there is still no official Brexit deal for Gibraltar.

Since then, locals have lived in uncertainty, and border arrangements have essentially been fudged by Spanish authorities and proven unpredictable.

Lammy has signalled his intention to pick up negotiations where predecessor David Cameron left off. Before the election was called, Spanish press reports stated that Cameron’s injection into government had improved talks. Spain’s Foreign Minister José Manuel Albares suggested significant progress was made before talks were suspended for the election campaign.

“It’s a file that clearly I will pick up from David Cameron, and I look forward to doing that,” Lammy stated. “I recognise it’s an outstanding issue that comes out of the Brexit arrangements, and I will pick that up.”

Many in Gibraltar will hope that a new government can refresh talks and finally bring Brexit to a conclusion after years of negotiations and uncertainty.

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