Office for Foreigners

European Commission GUIDANCE

1. Family members who are eligible to join after the end of the transition period – Article 10 WA

Article 10(1)(e)(ii) and (iii) and Article 10(4) of the Withdrawal Agreement define which family members have the right to join the Withdrawal Agreement beneficiary in the host State after the end of the transition period, that is, after 31 December 2020.

Essentially those are:

• Family members who were directly related to the Withdrawal Agreement beneficiary and resided outside the host State at the end of the transition period and who fulfil the relevant conditions of Article 2(2) of the EU Free Movement Directive 2004/38/EC at the moment they seek residence under the Withdrawal Agreement in order to join the beneficiary in the host State;
• Children born to, or adopted by, a Withdrawal Agreement beneficiary after the end of the transition period; and
• those who were durable partners and resided outside the host State before the end of the transition period and whose relationship continues at the time they seeks residence in the host State.

Those family members have the right to themselves become Withdrawal Agreement beneficiaries in the host State (or, in the case of durable partners, the right to have their residence as Withdrawal Agreement beneficiary facilitated in accordance with national law) at any point in time after the end of the transition period.

Member States’ Withdrawal Agreement residence schemes must thus be open for applications of such family members.

2. Visits of family members in the form of short stays are not covered by the Withdrawal Agreement

Importantly, the concept of family members joining the Withdrawal Agreement beneficiary means that they want to become Withdrawal Agreement beneficiaries themselves. This results from the wording of Article 10(1)(e)(ii) and (iii) and Article 10(4) WA. All three provisions have terminology making clear that what is at issue is those family members seeking residence in the host State under the provisions of the Withdrawal Agreement in order to join the Withdrawal Agreement beneficiary there.

As a corollary, the Withdrawal Agreement does not govern short stays of family members of Withdrawal Agreement beneficiaries in the host State for the purposes of visiting the beneficiaries. This is consistent with the purpose of the Withdrawal Agreement, which was not intended to regulate future movement of persons between the UK and the EU.

Family members of Withdrawal Agreement beneficiaries who want to enter the EU for a short stay therefore have to comply with the regular entry conditions for non-EU nationals, which are set out in the Schengen Borders Code (see in particular its Article 6(1)).

3. Visa facilitations for joining family members – Article 14(3) WA

Article 14(3) of the Withdrawal Agreement provides for visa facilitations for third-country national family members who join the UK national Withdrawal Agreement beneficiary after the end of the transition period and who are, based on their nationality, submitted to a visa obligation.

Visa facilitations for family members of Withdrawal Agreement beneficiaries are essentially the same as those under Directive 2004/38/EC. Therefore, family members of Withdrawal Agreement beneficiaries must be put on an equal footing with family members of EU citizens, provided the following cumulative conditions are met:

• the sponsoring UK nationals is actually a Withdrawal Agreement beneficiary;
• the family members requesting a visa are themselves covered by Article 10 of the Withdrawal Agreement; and
• the visa application falls under Article 14(3) of the Withdrawal Agreement.

Regarding the last condition, the first visa application of an eligible family member will generally fall under Article 14(3) of the Withdrawal Agreement. For multiple visa applications (second or more), the following applies:

If the host MS of the UK national (and of the family member) has a declaratory scheme (as in Poland), multiple short stay visas can be issued as long as the family member continues to have Withdrawal Agreement beneficiary status. In practice, it will be about whether the family member respects the absence rules (for non-permanent residence not more than a total of 6 months of absence in a year or exceptionally one single absence of not more than 12 months; in case of permanent residence, the family member can be absent for up to 5 years).

Procedures in Poland

Joining family members may apply in Poland for :

• registration of residence and certificate of registration of residence (for family members – the beneficiaries of the Withdrawal Agreement who are UK citizens),
• residence card (for family members – the beneficiaries of the Withdrawal Agreement who are not UK citizens).

Persons leading family life with UK nationals within the meaning of the European Convention on Human Rights who resided outside Poland before the end of the transition period, provided that the relationship was durable before the end of the transition period and continues at the time the person seeks residence (Article 10 (4) of the Withdrawal Agreement) may apply for temporary residence permit under Article 160 point 6 of the Act on Foreigners on the standard application form for a temporary residence permit.

Applications are submitted to the voivode competent with respect of the place of residence in Poland.

In case of the persons covered by Article 10 (4) of the Withdrawal Agreement staying abroad application for temporary residence permit under Article 160 point 6 of the Act on Foreigners is submitted by the UK national in Poland on behalf of the person whose written consent for submission of the application should be attached to the application. After positive decision special entry visa is issued abroad  to that person. After arrival to Poland application for residence card should be submitted to the voivode with the finger prints taken in order to obtain the residence card.