Country #

Austria

Reference #

Date: 29/04/2021 08:40:08
Subject: Your Europe Advice enquiry 334484

Enquiry #

Thank you once again for all your useful advice; for me at the moment you are an essential service!
I am a UK Citizen in Austria who is a beneficiary of the Withdrawal Agreement, but have been in Austria for less than 5 years.
The UK Government have issued the following advice:
“If you have lived in your EU country for less than 5 years, you will be able to stay for as long as you meet one of the residence conditions. There are exceptions (eg you may have a short period of unemployment and still remain covered as a ‘worker’). You must spend at least 6 months in any 12 month period in your EU country to keep your residence rights.”
Are you aware of any documented provisions that have been made for exceptions to this 6 month rule? The cases I am thinking of are:
a)Professions that may require you to be away from the host country for longer (e.g. airline industry)
b)Caring for an elderly relative with cancer (this can take longer than 6 months).
Note: this is not necessarily about people making lifestyle choices (6 months in one country and 6 months in another)
My concern is that someone may lose the Withdrawal Agreement rights and as I understand it they lose it for life!

Answer #

Dear Sir/Madam,

Please find below the reply to your enquiry. Please note that the advice given by Your Europe Advice is an independent advice and cannot be considered to be the opinion of the European Commission, of any other EU institution or its staff nor will this advice be binding upon the European Commission, any other EU or national institution.

Thank you for contacting Your Europe Advice once more.

1. The UK ceased to be an EU Member State on 31 January 2020, following ratification of the Withdrawal Agreement.

2. This advice takes into account the text of the Withdrawal Agreement that was revised in October 2019 and formally signed on 24 January 2020 as published in the Official Journal: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:12020W/TXT

3. We have also referred to the following documents:

a. The Commission official Guidance Note on Citizens Rights under the Withdrawal Agreement: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52020XC0520(05)

a. The Commission official Memo Questions and Answers – the rights of UK nationals under the Withdrawal Agreement : The Commission official Memo Questions and Answers – the rights of UK nationals under the Withdrawal Agreement : https://ec.europa.eu/info/sites/default/files/q-a-uk-citizens-constitutive-countries-at_en.pdf

4. The Withdrawal Agreement provided for a transitional period which ended on 31 December 2020 and following which EU law ceased to apply to the UK.

5. As you may know, the Withdrawal Agreement aims to protect the acquired rights of British citizens who are residing in another EU country by the end of the transitional period. This means that British citizens who are residing in an EU country before 31 December 2020 will be able to continue residing in that country after the end of the transition period.

6. We understand that you have registered as a beneficiary of the Withdrawal Agreement in Austria and have complied with the formalities as indicated on the UK government website: https://www.gov.uk/guidance/living-in-austria#visas-and-residency

7. The rules on permitted absences are contained in Articles 11 and 15 of the Withdrawal Agreement.

a. Article 15(2) WA provides that continuity of residence for the purposes of the acquisition of permanent residence is to be determined in accordance with Articles 16(3) and 21 of Directive 2004/38.

b. Under Article 16(3) of Directive 2004/38, in the period before you acquire permanent residence, you can be absent from Austria for up to 6 months in a given year. Alternatively you can be absent from Austria for a single period not exceeding 12 months in total within the first five years of residence for important reasons such as pregnancy, military service, study or work posting abroad by your current employer.

c. Therefore it is clearly indicated that a single period of absence not exceeding 12 months is permitted for wok-related reasons.

d. Although taking care of a relative who is ill is not explicitly listed, we consider this should qualify as an important reason. Therefore, we consider that you would be permitted a single absence of up to 12 months due to being prevented from travelling back to Austria as a result of having to care for a relative because of health-related issues.

e. There is no specific process you need to follow to notify the Austrian authorities of such absences. You will need to retain documentation which explain the reasons for your absence in case this is requested.

f. In such cases, upon your return to Austria, we consider that you would have to remain there for a least six-months in order to reset the clock on permitted absences.

8. After having lived for a continuous period of five years in Austria, you would acquire permanent residence in Austria.

a. This is conditional upon you having continued to meet the conditions for having a right to reside during this 5-year period and without any absence exceeding 6 months in a calendar year.

b. Once you have acquired permanent residence in Austria, you can only lose this right if you are absent from Austria for a continuous period exceeding five years as reflected in Article 15(3) of the Withdrawal Agreement.

We trust that the above answers your enquiry.

We remain at your disposal should you require further information or advice on EU rights.

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