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British, unregistered and living in Portugal? How Brexit will affect you

euMuch has be written in the UK press about the requirements for the casual UK tourist who will travel to EU countries post-Brexit but little has been written about UK citizens that have homes in the EU, including Portugal, but have no form of residency, writes Sue Fletcher. 

The latest text regarding the Withdrawal Agreement was published at the end of March and if that is finally ratified then there will be a transition period to the end of 2020 where all UK citizens will retain their current EU rights.

If the Withdrawal Agreement is not ratified then the UK will cease to be a member of the EU on 29th March 2019 and we will be classed as third-country nationals with, as yet, unknown rights. This has major implications as the UK is not a member of the Schengen area.
 
UNDERSTANDING THE SCHENGEN AREA
 
The Schengen Area, named after ‘the Schengen Agreement’ signifies a zone where 26 different European nations, (not all are in the EU and not all EU countries are in Schengen) abolished their internal borders for the free and unrestricted movement of people, goods, services, and capital. As a result borders between European countries only exist on maps.
 
The countries currently in Schengen are:  Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland. Madeira, The Canary Islands, The Balearics and The Azores are also included.
 
Citizens and residents of any Schengen country can travel freely between the countries and spend up to 90 days in each country. After 90 days EU rules of residency apply. If after Brexit you don’t have residency, you will be classed as a tourist of a third country and these rules will apply:
 
* You must apply for a ‘Schengen Visa’. The UK is hoping that the EU will agree to a visa-free scheme. This is likely to involve applying for a visa-waiver that will last for several years at a modest cost of about £5. Nothing is yet decided.
 
*  You may stay within Schengen for 90 days in any 180-day period. This means that out of 180 days, you can only be there for 90 days on a moving basis.

The 180 day period is determined by counting backwards 180 days and the day of arrival is counted as day one. So, for example, if you are stopped by police and asked for your documents they will take that date, count back 180 days and then calculate the number of days you have been in Schengen. If it is over 90 you are liable to be fined between 300 and 1,200 euros. It is vital to keep details of all visits otherwise it’s possible that the officer will declare that you have been present in Schengen for the entire 180-day period.
 
The EU has a handy calculator so that you can work out how long you have been in Schengen:
https://ec.europa.eu/home-affairs/content/visa-calculator_en
 
When inputting dates use this format 010118 (1st January 2018) the form will add the breaks automatically.
 
*  You DO NOT get 90 days in each Schengen country, but 90 days in the entire Schengen area, which for Brits is practically everywhere except the UK and Ireland.
 
As if all this wasn’t onerous enough, in 2020/21, the EU is planning to launch the European Travel Information and Authorisation System (ETIAS) which is designed to strengthen EU borders and prevent illegal migration.
 
After January 1st 2021 Brits, without any EU residency, and travelling into Schengen, will need to register their details and their intentions online. The cost will be around €5 and the ETIAS will be valid for 3 years or until your passport runs out, whichever is the sooner.
 
The questions likely to be asked will cover personal information including name, address, contact details, passport details and occupation (with your job title and employer, or for students, the name of educational establishment). There will also be questions about your state of health, particularly any infectious diseases.
 
You will have to give details of any convictions in the past 20 years for serious crimes, including those involving terrorism, child pornography, armed robbery, fraud and money laundering, cybercrime, counterfeiting, industrial espionage, illicit trafficking in endangered animal species, arson, xenophobia and racism.
 
Next, you must say why you are travelling (holiday, visiting family, business etc), specify the country you will first arrive in and provide the address of your first night’s stay - which could pose a problem for travellers who like to make plans as they go along. Those wanting to spend the winter in warmer climes in their motor home or cruise the Mediterranean are likely to have problems without a lot of forward planning. For example you can cross into Croatia for 90 days and then return to Schengen, but check the Schengen status of any country before committing to it as several are waiting to join Schengen.
 
The airline, ferry company, train or coach operator you are travelling with will be required to verify you are in possession of a valid travel authorisation. So you shouldn’t get as far as a European border post without a valid ETIAS.
 
If you overstay your 90 day limit in the Schengen area this will be noted on your record, so next time you travel you may be refused entry. Also, at the press of a button, the EU authorities can check when you arrived in Schengen and have details of any other trips you have made.

UK PASSPORT CHANGES

If you have a valid British passport you’re currently able to enter or leave the Schengen area without it having a minimum or maximum validity period remaining. Portugal is in the Schengen area. However, once the UK exits the EU, you’ll be considered a third country national under the Schengen Border Code and will therefore need to comply with different rules to enter and travel around the Schengen area. If you have Portuguese residency this will apply to you when outside of either the UK or Portugal.

According to the Schengen Border Code, third country passports must:
* have been issued within the last 10 years on the date of arrival in a Schengen country, and
* have at least 3 months’ validity remaining on the date of intended departure date from the Schengen area. In effect this means having 6-months validity left on your passport.

Although UK passports can be issued nine months before expiry, since 10th September this year, those extra months will no longer be taken into account and this rule is retrospective.

Therefore, for existing passports you need to check the issue date, add ten years and use this date as the expiry date. To travel into Schengen means your passport should be no older than 9 years and 6 months.

If your passport does not meet these criteria, you may be denied entry to any of the Schengen area countries, and you should renew your passport before you travel.

DRIVING WITHIN SCHENGEN

If there’s a ‘hard Brexit’ and the UK leaves the EU in March 2019, without a withdrawal agreement, there will be no transition period either. At the time of writing this, there is no agreement for the EU to recognise a UK driving licence. If you aren’t a resident in Portugal and travel to and from the UK, or hire a car in Portugal, you will need to apply for an International Driving Permit (IDP) which is a document you carry with your driving licence. Unfortunately, this is not as straightforward as it sounds because there are different types of IDP and each is valid for a different period. Which one you need depends on which country you are driving in and each is governed by a separate United Nations convention.

The 1949 convention IDP lasts for 12 months. After 28 March 2019 in the EU, a UK issued 1949 IDP would be recognised in Ireland, Spain, Malta and Cyprus.

The 1968 convention IDP is valid for 3 years, or for however long your driving licence is valid, if that date is earlier. After 28 March 2019, a UK issued 1968 convention IDP would be recognised in all other EU countries, plus Norway and Switzerland, including Portugal. For those of you that drive across into Spain you will require both IDPs.

Currently, a UK issued IDP for Portugal isn’t available, but from 1 February 2019 the government will begin providing both forms of IDP at 2,500 Post Offices across the UK. At the moment, applying for an IDP takes around 5 minutes on a turn-up-and-go basis. However, be aware that the UK only usually processes around 100,000 applications a year but after Brexit this could leap to over 5 million and there is not the staff in place to cope with this volume.

GREEN CARDS

If the UK leaves the EU in March 2019 with no deal in place, access to the Green Card-free circulation area would cease. This would mean that UK motorists would need to carry a Green Card as proof of third party motor insurance cover when driving in the EU, EEA, Andorra, Serbia and Switzerland.

As most members of the Green Card system are also part of the EU’s Free Circulation Zone, the Green Card system has almost fallen into disuse and has barely evolved since the 1970s. Documents are still issued on green paper and cannot be delivered electronically – despite the fact that motorists are no longer even required to carry paper insurance certificates.

Returning to the Green Card system may create the following problems: 

  • A lack of clarity over when motorists need to tell their insurer they intended to travel overseas (making last minute trips more difficult)
  • Creates particular problems if someone’s insurance is due for renewal overseas – they would need to arrange for a replacement document to be sent to them (possibly from their new insurer)
  • Additional problems if any driver loses or misplaces their Green Card documents while outside the UK – they would need to arrange for a replacement document to be sent to them.

TRAVEL TO THE EEA

Even in a no deal scenario, all UK motor insurance providers will continue to be required to provide third party motor insurance cover for travel to EEA countries in a UK registered vehicle, but please check your level of cover with your insurance company when you apply for your Green Card.

Without a Green Card, you would have to purchase local insurance in the country you are entering (also known as frontier insurance). This provides proof of third party motor insurance cover for a UK-registered vehicle in that country for a limited period of time (the period of validity varies depending on policy purchased). However, due to high costs and limited availability of frontier insurance across these countries, the UK government recommends that you obtain and carry a Green Card to ensure minimum requirements for motor insurance cover are met.

You can request a Green Card from your insurance provider free of charge, but insurers may decide to reflect production and handling costs in a small increase to their administration fees.

If you have 2 insurance policies covering the duration of your trip (because the policy renews whilst you are away), you must ensure you have the correct documentation (1 or 2 Green Cards may be required).

Please note that you do not need to request a Green Card yet, so speak to your current insurance provider for advice and, if your provider insures many UK cars already outside of the UK, do this earlier rather than later to avoid the inevitable backlog. If your trip into Schengen/EU straddles the Brexit period, you will need to speak to your insurer well beforehand to ensure having the correct paperwork for your post-Brexit travels.

You should expect documentation checks to be carried out when entering these countries (the Schengen Area border), or when randomly stopped.


IS THERE A WAY AROUND THIS?
 
Yes, if you own or rent a home in a Schengen country, under EU law, after 90 days of living in the country, you must register for temporary residency. Getting residency here in Portugal, both temporary and permanent, can be found on this link:
 
https://www.algarvedailynews.com/legal/11341-are-you-legal-in-portugal-rules-on-residency-for-citizens-of-the-eu-eea-and-switzerland
 
This will allow you to retain the 'Citizen's Rights' detailed in the Withdrawal Agreement, including using the Portuguese NHS and EHIC until Brexit occurs. After Brexit the EHIC is likely to disappear.

If you apply for temporary residency the time left on your passport is taken into account, so if you only have two years left then your residency will only be for two years. As yet, we have no idea from the Portuguese government what they intend to do regarding the process of residency, although an immigration specialist lawyer considers that those already in the system will be able to continue under the same EU system rather than be swapped to the third country system.
 

HEALTH CARE

Eligibility for the Portuguese healthcare system is residence-based, meaning healthcare in Portugal for expats, including third-country Brits after Brexit, is available for those who are  legally resident in Portugal. This can also include non-working residents under certain conditions, such as unemployed, retired or dependent family members.

https://www.expatica.com/pt/visas-and-permits/Moving-to-Portugal-Portuguese-visas-and-residency-permits_105233.html

Non-residents and temporary visitors to Portugal will need to purchase private health insurance to cover their stay in Portugal. This will enable them to access doctors, emergency treatment and other Portuguese health services. Currently, EU citizens IN Portugal for temporary visits rely on the European Health Insurance Card (EHIC), but as that is a European initiative it is almost certain to be withdrawn from Brits.

Emergency treatment in Portugal is available to everyone regardless of residence status or insurance, although once your condition has stabilised you will need to show proof of residence status or health insurance to have costs covered.

NEW ID CARD FOR FOREIGNERS LIVING IN PORTUGAL

The Portuguese government is launching a new citizenship card for registered foreigners in Portugal, as part of the 'Simplex + 2018' programme. The aim
is to streamline administration of all foreign citizens and reduce much of the country's bureaucracy. The Ministry announced that the new card will be issued in the final quarter of 2019. This will mean that as time goes on more and more institutions and businesses will ask for the card as a means of identification e.g. health services and wherever you currently need to give your fiscal number (Número de Contribuinte).

More information is available here:

https://www.algarvedailynews.com/legal/14921-portugal-introduces-new-id-card-for-foreigners-living-in-portugal


© Sue Fletcher, September 2018

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