12 April 2019

Brexit – possible scenarios (update)

The European Council in its conclusions of the extraordinary meeting on 10 April, agreed to extend the date of the UK withdrawal from the European Union to allow for the ratification of the withdrawal agreement. Such an extension should last only as long as necessary and, in any event, no longer than 31 October 2019.

If the withdrawal agreement is ratified by both parties before this date, the withdrawal will take place on the first day of the following month. If the UK is still a Member of the EU on 23-26 May 2019 and if it has not ratified the Withdrawal Agreement by 22 May 2019, it must hold the elections to the European Parliament in accordance with Union law. If the United Kingdom fails to live up to this obligation, the withdrawal will take place on 1 June 2019. Therefore residence rules in relation to British citizens in Poland may change. Brexit conditions are yet to be determined. Office for Foreigners presents currently possible scenarios and rules of stay in Poland for British citizens after Brexit, that depend on the aforementioned Brexit conditions.

At present UK citizens and their family members who are not EU citizens may stay in Poland for up to three months without having to fulfil any conditions of residence other than having a valid travel document. If the stay lasts over 3 months the British citizens like all European Union citizens are obliged to register their stay in Poland. Members of their families who are not citizens of the European Union, however, are required to obtain a residence card of a family member of an EU citizen. The fulfilment of these responsibilities is possible free of charge at the voivodship office competent for the place of stay.

Scenario 1: Brexit based on an agreement between the UK and the European Union

The European Commission published a draft Brexit agreement which until now has not passed the necessary internal procedures in Great Britain, and thus it is not known whether it will apply. If the withdrawal agreement is ratified by both parties, the withdrawal will take place on the first day of the following month.

The main assumptions of the Brexit agreement:

– transition period from the date of application of agreement to December 31, 2020. During this process the rules of stay and work of UK citizens in Poland will remain unchanged. The free movement of people between Great Britain, and the EU will therefore be maintained during this period;

– matters related to the stay of British citizens and their family members after the end of the transitional period are regulated in Part Two of the draft Brexit agreement: “Civil rights”;

– after the end of transition period UK citizens and their family members will have the right to reside in Poland, if:

  1. They exercised the right of residence in Poland in accordance with EU law before the end of the transitional period;
  2. They still reside in Poland.

– the right of permanent residence will in principle be granted after five years of uninterrupted residence (in accordance with EU law under the conditions laid down in Directive 2004/38 / EC). Periods of legal residence or work in accordance with Union law falling before and after the end of the transitional period will be included in the required period of entitlement to acquire the right of permanent residence;

– a document with the annotation that it was issued in accordance with the Brexit agreement   shall be a confirmation of the right of residence or right of permanent residence;

– documents will be issued by voivodship offices competent for the place of stay.

Scenario 2: Brexit without concluding an agreement between Great Britain and the European Union (so-called no-deal Brexit)

In the event of no-deal Brexit, on March 15, 2019 a law regulating inter alia the residence status of UK citizens and their family members in the territory of the Republic of Poland was adopted. It will apply on the day of the UK withdrawal from the EU. It provides for the establishment of a period during which the stay of British citizens and their family members on Polish territory immediately after the Brexit date will be considered legal. It also sets out the legal basis for granting them temporary and permanent residence permits depending on whether or not they hold the right of residence or the right of permanent residence on the day before the date of Brexit. Importantly, law provides for the presumption of holding one of such rights on the day before the date of its application by the owners of valid documents issued by Polish authorities to European Union citizens and their family members. Therefore, obtaining relevant permits after Brexit based on the draft regulations will be much easier for people holding these documents. Registering and obtaining residence cards for a family member of an EU citizen can thus be a convenience for British citizens and their family members who will want to stay in Poland after Brexit.

At present, no-deal Brexit may still take place on 1 June 2019 (if the United Kingdom did not fulfill its obligation to hold elections to the European Parliament) or on 1 November 2019 (if the withdrawal agreement won’t be ratified).

The main assumptions of the law regulating residence status of the UK citizens in Poland:

from date of Brexit to December 31, 2020, the stay and work of UK citizens and their family members will be considered legal provided that the day before the date of Brexit they will have the right to stay in Poland;

introduction of new types of permits for temporary residence (up to 5 years), and permanent residence (for an indefinite period) which can be applied for in the period from date of Brexit to December 31, 2020, and dedicated to the UK citizens;

presumption of having a right of residence or permanent residence in Poland as at the day before the date of Brexit for persons holding a certificate of registration of an EU citizen’s residence on that day, the document confirming the right of permanent residence, residence card or permanent residence card of an EU citizen’s family member – simplification of procedure for temporary or permanent residence permit dedicated to the UK citizens;

the right to obtain a permanent residence permit after 5 years of legal uninterrupted residence, also after Brexit, under certain conditions;

– obtaining a residence permit will entitle a person to take up work;

– applications for residence permits will be considered by voivodship offices competent for the place of stay.

Scenario 3: Change of Brexit date

There is also the possibility of another postponing the date of leaving the European Union by the UK. In order for this to happen the European Council in agreement with the United Kingdom would have to take a unanimous decision to extend the negotiation period.

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