UK pension S1 form and Krankenkasse agreement

72 posts in this topic

These sources all bang on about the 30th June. The last zoom thingy with the consulate, BiG and someone from the relevant Amt was so adamant that this is not a thing, and I have been assuming they meant what they said, but these documents are very clear.

 

Hmmm.

0

Share this post


Link to post
Share on other sites

My understanding, and I might be wrong, is that if you come within the terms of the WA then you have the right of residence in the country in which you were exercising that right before the end of the transition period.  For you that would be Germany.  You do not retain FoM and cannot simply move to another EU MS because you have certain retained or protected rights in Germany. The WA must, as far as I understand it, trump EU Directives as the UK has left the EU and absent the WA your right to permanent residence would have become void, i.e. you may well have had to leave Germany or apply as a normal third country national in the event of a no deal.  I am sure any lawyers on here can confirm or correct that view. 

 

Therefore, now that the UK has left, those who fall within whichever parts of the WA have rights (and obligations to secure those rights) that nationals of other third countries do not - that, after all was the whole purpose of the citizens' rights parts of the WA!  Your rights relate to Germany, not the EU as a whole.  As far as NL is concerned, you may or may not have rights conferred on you by the WA as a family member but if it were me, I would want to be 100% certain of those NL rights before I let my German rights lapse, in favour of a perceived loophole.

 

In my view, and again this might be wrong, you have to declare yourself under those rights by 30 June 2021.  If you don't do that then you would presumably have to dig through the WA to find out what, if any, provisions there are for those who fail to act within the allotted time frame.  As I said before, what is the downside to securing your exchange permanent residence card?  If you think you can rely on permanent residence in 5 years time when returning from NL, then what would be different if you have simply declared your right to permanent residence status under the WA by June.  The only one I can think of is a fight with the German authorities in 5 years.

 

1 hour ago, MaineCoon said:

 

This link is very informative and everything in it says to me that you must act by 30 June to exercise your rights.  I have only scanned it but it seems to confirm what I have penned above.  If you haven't fully digested its meaning, I would helpfully suggest you read it again, without the thought in your mind that there might be some sort of loophole to squeeze through.  

 

HTH

 

Edit - just been browsing this thread again and re-reading the booklet.  If you already have the right of permanent residence in Germany then reporting/declaring, or whatever you want to call it, that right by the deadline changes nothing as far as I can see visa-vie NL.  You are exchanging one German document (which presumably expires or becomes void on 30 June?) for another.  You were registered as permanent resident and you remain so.  You had FoM but have lost it because of Brexit.

 

If you move to NL then you either come within the WA by family connection with whatever that means under NL law, or you don't and you are just a post-31 December applicant. 

 

Your notes suggest you don't want to play the one system off against the other but I cannot see that you are doing that.  You either have rights under the WA in both countries or you do not.

 

Have a closer look at part 23 and 25 in the booklet in particular and compare that with your note - I think you may conclude your notes are not a correct interpretation of the rules, sorry.

2

Share this post


Link to post
Share on other sites

We moved to Germany in Sept.2007, so I acquired perm. residence in Sept.2012 (no absences).

Although I did not apply for a perm. residence card, I did pay taxes every year so proof isn't an issue.

 

@GaryC what's your take on page 8:
"You also have a right under the WA if you fulfilled these periods of residence at some previous time, but left Germany less than five years before Dec.31.2020. In this case, it is not necessary for you to be living in Germany on Dec.31.2020 in order to assert this right. However, your right of residence under the WA expires on the date when you have no longer been living in Germany for five years, even if this date is after Dec.31.2020."

 

I read it to mean: If I left Germany on Dec.20.2020, I keep my right of residence until Dec.19.2025.

I think this is what confused me earlier; I conflated it with 'don't have to apply until then".

Whereas in pof I must obtain the Aufenhaltsdokument GB prior to Jun.30.2021.

0

Share this post


Link to post
Share on other sites

The short answer is yes, that is how I read it too. 

 

For instance, I was resident for 8 years but left Germany in 1988.  I have no residence rights under the WA as I left more than 5 years before 31 December 2020.  A person who meets the 5-year residency requirement who left Germany less than 5 years before 31 December is covered by the WA and can declare their residency status by 30 June. 

 

The 6-month deadline for declaring your position is in Article 18(1)(b) of the WA -  GEN (publishing.service.gov.uk)

" (b) the deadline for submitting the application shall not be less than 6 months from the end of the transition period, for persons residing in the host State before the end of the transition period" 

 

That deadline has now been set by the UK and EU as 30 June.  If you were minded to "ignore" it, which I think is no longer part of your thinking/understanding, then it seems that Article 18(1)(d) has effect:

 

" (d) where the deadline for submitting the application referred to in point (b) is not respected by the persons concerned, the competent authorities shall assess all the circumstances and reasons for not respecting the deadline and shall allow those persons to submit an application within a reasonable further period of time if there are reasonable grounds for the failure to respect the deadline; "     

 

So, in terms of that fight with the "competent authorities", i.e. the German Authorities, you would have to demonstrate that you had reasonable grounds for failure to respect the deadline.  In tax law at least, ignorance of the law is no excuse, and given all of the publicity around this issue and the fact that you declined to meet the deadline because you also wanted to apply in NL would not, in my view, be a reasonable excuse in the terms of the above - but then, I am a hard-nosed retired HMRC official, ho hum...

 

By the way, if you are planning on seeking recognition in NL, the same deadline applies, unless, it would seem, the caveat to (b) applies:

 

"For persons who have the right to commence residence after the end of the transition period in the host State in accordance with this Title, the deadline for submitting the application shall be 3 months after their arrival or the expiry of the deadline referred to in the first subparagraph, whichever is later." 

 

I think that depends on what those family rights actually mean under the WA but to be on the safe side I think I would be wanting to exercise them before 30 June.

0

Share this post


Link to post
Share on other sites

@GaryC Thanks for that, is nice to have a 2nd opinion.

After very little consideration (ie. less than 1 second) I think I shall decline a possible "discussion" with the German authorities as to whether my reasons for applying late were good ones - plus, I can now see a way through the forest to make this all work for me, so no point.

 

"Hard-nosed HMRC": Going to have to disagree with you there. I have always found HMRC to be incredibly nice, and pretty much leaning-over-backwards to help.  *Really* wish the Finanzamt would take a leaf or two out of their book.

 

Very much appreciate your input. Thanks again.

 

 

 

0

Share this post


Link to post
Share on other sites

Hard-nosed was poking fun at my own stereotype.  I was a policy advisor developing new laws to counter tax avoidance for much of my career, so no operational contact with taxpayers, sorry, customers. But I would agree that the approach adopted since at least the introduction of self assessment, way back in 1996 has been very much as you describe, even for those at the sharp end of enquiries, or what are now called compliance checks...

 

Hope you manage to navigate the forest...  

0

Share this post


Link to post
Share on other sites

The first contact I had with HMRC was waayyyy back in ~1978.

My (new) husband was allergic to paperwork, a shortcoming he had failed to tell me about.  I discovered several cardboard boxes in the attic FULL of unopened "File or we will shoot you at dawn" letters.

I only found out by accident, fell over a Court hearing date letter addressed to him, which I opened.

 

I dictated a letter to him (which he wrote under duress), along the lines of "I'm a hippie, doing my own thing, living off savings. I have not earned anything in the past 6 years. I'm really, really sorry I didn't file / inform HMRC, ... ..."

Long story short, the local inspector came round, had a cuppa tea and made bad jokes about prison. He then vacated the hearing and binned all demands.

I've had a soft spot for HMRC ever since.

1

Share this post


Link to post
Share on other sites

WOW - now that is one to tell the grandkids, as it were.  

0

Share this post


Link to post
Share on other sites

I can't let this go can I?  But was wondering under which provisions you would qualify to join family in NL.  It doesn't appear to be under the WA as my reading of it is that you can only fall within its remit by reference to 1 EU MS, except in a limited number of circumstances for family members and as I read it, while your children are your family members, you are not a family member of your children, i.e. in regulatory terms you can look down the family line but not back up it, except where ascendants are dependent.

 

Have a look at Article 9 of the WA where family member is defined by reference to point (2) of Article 2 of Directive 2004/38/EC, i.e. spouse, direct descendants and DEPENDENT direct ascendants (which would appear not to be the case).  Article 3 of 2004/38/EC may also be of assistance for, "(2(a)  any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen", but that would not, on the surface, appear applicable.

 

So, does NL have rules other than those above which take precedence over the WA and other EU Directives, or have you mis-read the requirements. 

 

Hopefully I am wrong but I would hate for you to get to NL to find you have no right of entry/residence...

 

 

0

Share this post


Link to post
Share on other sites

Haha - hope the pie still tastes nice, despite the damaged crust!

0

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!


Register a new account

Sign in

Already have an account? Sign in here.


Sign In Now