What applies to the continuity of residence under the Withdrawal Agreement?

The continuity of residence is foreseen in Article 11 of the Withdrawal Agreement, which refers to the absence rules for the beneficiaries of the Withdrawal Agreement with a non-permanent or permanent right of residence in Greece.

It is noted that regarding the meaning of absence, this should be understood as physical ‘non-presence’ in Greece.

Nοn permanent residence right holders

Article 11 of the Withdrawal Agreement provides that the continuity of residence for the purposes of Articles 9 and 10 shall not be affected by the absences referred to in Article 15 (2) of the Agreement. Article 15 (2) of the Agreement provides that it shall be determined in accordance with Article 16 (3) and Article 21 of Directive 2004/38/EC. While Article 16(3) of Directive 2004/38/EC is designed for the purposes of checking the continuity of lawful residence for the purposes of acquiring the right of permanent residence, the same rules apply to residence under the Agreement generally – beneficiaries of the Agreement can be absent for some time without breaking the continuity of their right of residence in Greece. This means that continuity of residence is not affected by the following temporary absences:

  1. absences not exceeding a total of six months a year;
  2. absences of a longer duration for compulsory military service (there is no time limit); or
  3. by one absence of a maximum of twelve consecutive months for important reasons, such as (a) pregnancy and childbirth; (b) serious illness; (c) study or vocational training; or (d) a posting abroad.

The list is not exhaustive and any reason is taken into account, which, demonstrably, makes the absence of the person concerned necessary or unavoidable.

Concerning the permitted 6-month absence under Article 15(2) of the Withdrawal Agreement, read in conjunction with Article 16(3) of the Free Movement Directive, the timeframe has to be counted per year of residence, starting on the anniversary of the date when residence began (not on a rolling 12-month basis). Absences are therefore looked at per year of residence, that is, within the timeframe that is decisive for the acquisition of permanent residence. The reasoning is based on the CJEU, which has held that periods of continuous legal residence confer on EU citizens the right of permanent residence with effect from the actual moment at which they are completed. This means that the continuous period of five years of legal residence that leads to the acquisition of the right of permanent residence is to be counted from the moment the EU citizen takes up residence in the host Member State in compliance with the residence conditions of the Free Movement Directive. As a consequence, and considering also the way Article 16(3) of the Free Movement Directive is drafted (“six months a year” as compared to the use of ‘months’ in “one absence of a maximum of 12 consecutive months”), an EU citizen may have temporary absences not exceeding a total of six months within each year leading up to the acquisition of the right of permanent residence, whereby each year starts on the anniversary of the date when the EU citizen took up residence in the host Member State in compliance with the residence conditions of the Free Movement Directive.

Permanent residence right holders

Article 11 of the Withdrawal Agreement provides that the right of permanent residence acquired under Directive 2004/38/EC before the end of the transition period shall not be treated as lost through absence from the host State for a period specified in Article 15(3). Article 15 (3) of the Withdrawal Agreement provides that once acquired, the right of permanent residence shall be lost only through absence from Greece for a period exceeding 5 consecutive years.

It is important to note that when considering the loss of the Withdrawal Agreement beneficiary status, proportionality and fundamental rights assessments, such as the right to family life, are always taken place. The simple fact of having exceeded the permitted duration of absences as a Withdrawal Agreement beneficiary with a non-permanent residence right does not, therefore, automatically lead to the loss of Withdrawal Agreement beneficiary status. The facts of each case are examined and after being assessed on the basis of the principle of proportionality, a decision is taken on whether it is lost or not. However, this administrative practice should not be interpreted in general terms as non-implementation of the rules for the continuity of residence of Article 11 of the Withdrawal Agreement.