Can we drop our attempts at getting residency in EU member state and leave after 630 days?

Question

Me (EU national, non-Cypriot) and my husband (non EU national) moved to Cyprus in mid 2022 in order to relocate ourselves and our business here. We attempted to contact the immigration department for months but couldn't use the broken online portal and could not reach them on the phone despite repeated attempts. In December we contracted a service to help us get residency.

The service outlined what documents we needed after our rental lease had expired, which included the lease. Our landlords were in divorce and kept stringing us along on a new lease until they figured out who owned the property. Also, we were told we needed many documents all with apostille required, even for EU documents from my home country that were in English. They also asked for a criminal background check for my husband as the one (with apostille) that we had brought was now more than 6 months old. Even though it is my understanding they are not legally allowed to ask for that. They also required statements from the local village leader certified at the court.

I signed my application a year after arrival and assumed they had submitted it while waiting for my husband's paperwork. He got his crime report eventually after much pain and effort. It is my understanding that they aren't allowed to ask for extraneous documents like this and require apostille because of the undue burden of documentation it requires and that this infringes on my EU freedom of movement rights.

Regardless late that summer we let them know we had the document and they said they were waiting on my application and then they would do his.

It is now 1 year and 9 months later, and they have now informed me they never filed the paperwork. They say that I need a new EU passport for myself because mine expires in two months, and another criminal background check. They have also now added there is a large risk my husband will be forced to leave the country and unable to come back for as many days as he spent in the country.

We are fed up and we would like to simply leave Cyprus which has treated us so badly and move to Portugal instead, but we're scared that he will be detained while trying to exit the country, or maybe even both of us. As far as I understand it is my right as an EU national to exit this country with my non-EU family (spouse) under EU Directive 2004/38/EC but it seems Cyprus doesn't at all care about complying with the EU legal framework set forth therein. If we do make it across the border, would we be able to enter the mainland Schengen area without further incident? Would there be a black mark on my husband's record, and would this impact attempts to gain residency for him as my husband in Portugal?

There is currently no order for him to leave the country and as far as I understand he cannot have overstayed since as he has been with me the entire time he has been exercising his EU freedom of movement as granted to him by being the spouse of an EU national.

Answer 1

Also, we were told we needed many documents all with apostille required, even for EU documents from my home country that were in English.

This is normal. The apostille certifies that the document is genuine; it has nothing to do with language. However, EU documents from the following list must be accepted without any apostille; the certification of the official issuing the document is sufficient (and Cyprus appears to accept documents in English without a translation):

You can present public documents without an apostille stamp in the following areas:

• birth
• the fact of a person being alive
• death
• name
• marriage, including capacity to marry and marital status
• divorce
• legal separation or marriage annulment
• registered partnership, including capacity to enter into a registered partnership and registered partnership status
• dissolution of a registered partnership,
• legal separation or annulment of a registered partnership
• parenthood
• adoption
• domicile and/or residence
• nationality
• absence of a criminal record and the right to vote and stand as a candidate in municipal elections and elections to the European Parliament.

With regard to the €2,500 fine mentioned in the comments, I note that such fines are required to be proportionate with penalties that might be imposed on nationals of the host member state for failing to register. It is a bit difficult to believe that such a penalty exists for Cypriots, but it might be worth looking into -- perhaps the highest possible fine can only be levied in certain circumstances.

If we do make it across the border, would we be able to enter the mainland Schengen area without further incident?

You should be able to, yes. You and your husband can only be denied entry on serious grounds of public policy, public health, or public security.

Would there be a black mark on my husband's record, and would this impact attempts to gain residency for him as my husband in Portugal?

It should not. His application for a residence card can be refused only on the same grounds.

But given the possibility of a €2,500 fine, you might want to give some thought to engaging a lawyer with a practice in immigration law, preferably with experience in EU free movement law. You might also want to consider whether it is worthwhile to pursue the service you engaged because of their failure to provide the service for which you engaged them.

Most optimistically, a qualified lawyer ought to have an idea of how burdensome it would be to obtain a residence card for your husband, including the likely size of any fine. It might not be that bad, especially if you can document your good-faith efforts to apply. Lawyers are often valuable for their practical knowledge of administrative processes as much as for their technical knowledge of the law.

Related to that, if you remain determined to leave Cyprus, a lawyer can probably help you understand the risks of crossing the border. If there is a chance of being slapped with the €2,500 fine at that point, for example, you may want to have evidence of your unsuccessful good-faith efforts on hand when you leave.

If you can't or won't engage a lawyer, your best course of action is probably to leave with evidence of your good-faith efforts in hand, while being prepared for the possibility of being fined €2,500.