Country #

Austria

Reference #

Date: 29/01/2022 20:32 CET
Subject: Your Europe Advice enquiry 355994

Enquiry #

This query relates to the 12-month absence rule for Withdrawal Agreement beneficiaries who are holders of a 5-year Article 50 card and the 5-year absence rule for holders of the 10 year Article 50 card (permanent residence) in Austria. It is also a partial follow-up to 334484 which you responded to on 29th April 2021.
In your previous correspondence you thought that a 6 month return to Austria would be necessary to reset the clock after a 12-month absence for holders of the 5 year Article 50 card.
Does Case C-432/20 change your advice in any way or is it too early to say?
https://curia.europa.eu/jcms/upload/docs/application/pdf/2022-01/cp220010en.pdf
In addition, what do you believe is necessary to reset the clock after a 5 continuous year absence and does the above case have any bearing on that advice?
I am also aware that Case C-637/21 may have a bearing in the future:
https://curia.europa.eu/juris/showPdf.jsf;jsessionid=DB8CC1EF867B121CEBCADF676A8B2335?text=&docid=251813&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1522121
Thank you as always for your assistance!

Answer #

Many thanks for your enquiry to Your Europe Advice which we may answer as follows:

First, we refer to our reply to your inquiry No. 334484.

Article 15 (3) of the Withdrawal Agreement provides that once a UK citizen has acquired permanent residence in an EU member state, this right is only lost through absence from the host EU member state during five consecutive years.

We believe that based upon the cases you are quoting in your inquiry, it will be sufficient for the UK citizen, who already has acquired a right of permanent residence in an EU member state, to stay in the host member state only a few days during the five years in order to prevent loss of his permanent residence status.

However, we point out that this applies to a situation in which the right of permanent residence has already been acquired by the UK citizen, as both cases you are referring to concern a non-EU and a UK citizen who have already acquired permanent residence in the EU host member state. We do not think though that before acquiring the right of permanent residence, a few days of presence in the host member state will be sufficient instead of a six months period after a longer absence, as Article 16 (3) of Directive 2004/38/EC clearly states that you must reside in the host member state for a continuous period of five years in order to acquire permanent residence.

The ECJ has argued in case C-432/20 that a third-country nationals who has already acquired permanent residence in an EU member state has demonstrated that he is settled and sufficiently integrated in this EU member state. Therefore a period of only a few days in every 12 months is sufficient in order to not lose the acquired right of permanent residence. We do however not believe that the same reasoning would apply in a case in which a non-EU or UK national has not yet acquired a right of permanent residence. Both cases therefore do not currently change our opinion that before acquiring a right of permanent residence a UK citizen must demonstrate that they are continuously residing in the EU host member state according to Article 16 (3) of Directive 2004/38/EC, i.e. not being absent for more than six consecutive months per year or a single absence of 12 consecutive months for important reasons.

For further questions, we recommend that you contact the competent immigration authorities directly, which is the Bezirkshauptmannschaft of the Stadtmagistrat in the city where the UK national concerned is residing.

Should you have any further questions in relation to your rights in the EU, please do not hesitate to contact Your Europe Advice again.

Yours sincerely,

Your Europe Advice