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COMPLIANCE CORNER: How Travel Can Affect Legal Residence
December 15, 2023
When traveling abroad for work or leisure, the primary focus is normally on host country requirements. A consideration that is often overlooked is the impact of such travel on the Individual’s immigration status in their country of legal residence (also referred to as home country), if they are residing in a country where they are not a national.
Many countries have different rules with regards to authorised periods of absence and residence rights. It is possible that the Individual’s legal residence in their home country could be negatively impacted if they leave that country for more than the permitted period. We have seen six months absence being the most commonly permitted period of absence, however this can vary by country and by the individual’s immigration status.
It is therefore important to ensure that when staying outside their home country—particularly for extended periods of time—the applicant considers the immigration impact in their home country as well as their destination country. Such considerations can also include whether they have the right to leave; whether any deregistration or notification processes need to be made; how will the absence impact on future applications such as extensions or permanent residence; and whether there any impacts on social security or tax.
Below we examine some of the more common situations that involve long term travel:
Secondments
Typical types of secondments that could impact an Individual’s immigration status in their home country include international global assignments to a country outside the EU, where the Individual is required to obtain the relevant work authorisation and residence permit, and secondments within the EU (often facilitated through the Van Der Elst visa/permit).
It is essential for companies to understand the requirements to maintain the validity of the individual’s work and residence permit in their home country. When applying for a permit/visa to another country, the company and the Individual needs to understand what, if any, impact a new permit/visa could have on their existing permit. One consideration that is often overlooked is the long-term impact of extensive absences on eligibility to permanent residence or, in the shorter term, a potential extension to the current permit. Many countries require individuals to reside and/or physically be in the country for a minimum period in order to become eligible for permanent residence, and potentially citizenship.
Legal residence in the home country can determine eligibility for the Van Der Elst, as the basis of the Van der Elst is the individual’s employment and residence in the one EU Member State and the need to be sent to work in another EU Member state. The loss of their legal residence will render the individual ineligible to obtain the visa/permit.
Additionally, when applying for a visa to start their secondment in another country, the individual will be required to provide evidence that they have legal residence in their home country. If their legal residence is no longer valid, they will need to consider different options such as returning to their country of nationality to submit the application.
Social security coverage and ability to obtain valid A1 certificates/certificate of coverage will need to be considered when working in another country. Loss of valid residence or inability to meet the minimum period of residence will affect the individual’s social security covering in their home country and therefore in the country of secondment.
Relocation to another country
In situations where the Individual is relocating to another country, usually the authorised period of absence in their home country is not important as they will not be looking to return or pursue permanent residence in that country. However, it is important to consider that not only will a visa application not be accepted without proof of valid rights in the country of residence, but the legal residence must be maintained until the date of departure.
Without a global immigration approach, we have seen individuals losing their rights to return to their home country, which can lead to losing their rights in their destination country. It is therefore essential that the individual and their employer are aware of the immigration implications on both the home country and the destination country.
This immigration update is for informational purposes only and is not a substitute for legal or scenario-specific advice. Furthermore, it is important to note that immigration announcements are subject to sudden and unexpected changes. Readers are encouraged to reach out to Newland Chase for any case- or company-specific assessments.
