Monday 19 November 2018

Draft Withdrawal Agreement - November 2018 - No.5 - Part 2 (Citizens' Rights) - November 2018

This post considers the draft withdrawal agreement Part Two (Citizens' Rights).  The change in UK-EU relationship from full member to non-member was always bound to be a complex business.  After all, there have been 46 years of deep integration with numerous changes along the way.  In consequence, the provisions in Parts Two of the draft withdrawal agreement are complex and particularly detailed with numerous references to relevant EU legislation.  In this post I have tried to set out the main features.

Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators' level on 14 November 2018

There are also "Explainers" from the European Union - Brexit negotiations: What is in the Withdrawal Agreement and from the UK government see Withdrawal Agreement Explainer.

: Part Two (Citizens' Rights) :

Titles I to IV - Articles 9 to 39 of the withdrawal agreement -  (pages 16-68).  In Part Two there are frequent references to Directive 2004/38/EC which deals with freedom of movement, residence etc.

Definitions and scope:

Article 9 contains important definitions - e.g. "family members."   The definitions are not considered further here.

It is vital to know who is covered by Part Two and this is set down in Article 10 (Personal scope).  It begins -

Paragraph (e) then states - "Family members of the persons referred to in points (a) to (d), provided that they fulfil one of the conditions set out in paragraphs (e)(i) to (e)(iii).  These are not set out further here.

Paragraph (f) includes - family members who resided in the host State in accordance with Article 12 and 13, Article 16(2) and Articles 17 and 18 of Directive 2004/38/EC before the end of the transition period and continue to reside thereafter.  For example, the Directive Article 12 addresses retention of the right of residence by family members in the event of death or departure of the Union citizen.  Article 13 covers retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership.

The EU has published the following overview of who is within scope of the agreement - (click on it to enlarge):

The UK government's explainer states - "Part two provides that all UK nationals lawfully residing in a Member State at the end of the implementation period will be able to stay, as will all EU citizens lawfully residing in the UK. Their family members resident in the host state by 31 December 2020 will also be covered by the rights set out in the Withdrawal Agreement.  Individuals in scope of the Agreement can be joined by close family members (spouses, civil and unmarried partners, dependent children and grandchildren, and dependent parents and grandparents) who live in a different country at any point in the future, if the relationship existed on 31 December 2020 and still exists when the person wishes to come to the UK.  Any child born to an individual in scope is also protected by the Agreement if the individual has custody of the child. The Withdrawal Agreement also protects the rights of those citizens who reside in one state and work in another (‘frontier workers’)."

By Article 11, continuity of residence for the purposes of Articles 9 and 10 is not affected by those absences referred to in Article 15(2).  Discrimination on grounds of nationality is prohibited by Article 12 regarding persons covered by Article 10.

Anyone concerned as to whether they or a relative are within the scope of the agreement should seek expert advice as to their status.

The remainder of this post adopts the presentation of Citizens' Rights in the EU Explainer - Brexit negotiations: What is in the Withdrawal Agreement.   The Explainer is helpful, and so is the UK Government's version - Withdrawal Agreement Explainer, but neither text can be taken as legally authoritative. 

Rights related to residence:

The substantive conditions of residence are and will remain the same as those under current EU law on free movement. In the case where the host states opted for a mandatory registration system, decisions for granting the new residence status under the Withdrawal Agreement will be made based on objective criteria (i.e. no discretion), and on the basis of the exact same conditions set out in the Free Movement Directive  Directive 2004/38/EC: Articles 6 and 7 of the Directive confer a right of residence for up to five years on those who work or have sufficient financial resources and sickness insurance, Articles 16 – 18 confer a right of permanent residence on those who have resided legally for five years.

In essence, EU citizens and UK nationals meet these conditions if they are: workers or self-employed; or have sufficient resources and sickness insurance; or are family members of some other person who meets these conditions; or have already acquired the right of permanent residence and are therefore no longer subject to any conditions.

The Withdrawal Agreement does not require physical presence in the host state at the end of the transition period – temporary absences that do not affect the right of residence and longer absences that do not affect the right of permanent residence are accepted.

Those protected by the Withdrawal Agreement who have not yet acquired permanent residence rights – if they have not lived in the host state for at least five years – will be fully protected by the Withdrawal Agreement, and will be able to continue residing in the host state and acquire permanent residence rights also after the UK's withdrawal.

EU citizens and UK nationals arriving in the host state during the transition period will enjoy exactly the same rights and obligations under the Withdrawal Agreement as those who arrived in the host state before 30 March 2019. Their rights will be subject to the same restrictions and limitations, too. The persons concerned will no longer be beneficiaries of the Withdrawal Agreement if they are absent from their host state for more than five years.

Rights of workers and the self-employed:

The persons covered by the Withdrawal Agreement will have the right to take up employment or to carry out an economic activity as a self-employed person. They will also keep all their workers' rights based on Union law. For example, they will maintain the right not to be discriminated against on ground of nationality as regards employment, remuneration and other conditions of work and employment; the right to take up and pursue an activity in accordance with the rules applicable to the nationals of the host state, the right to employment assistance under the same conditions as the nationals of the host state, the right to equal treatment in respect of conditions of employment and work, the right to social and tax advantages, collective rights, and the right for their children to access education.

The Withdrawal Agreement will also protect the rights of frontier workers or frontier self-employed persons in the countries where they work.

Additionally, when a person covered by the Withdrawal Agreement who had his or her professional qualifications recognised in the country (an EU Member State or the UK) where he or she currently resides or, for frontier workers, where he or she works, will be able to continue to rely on the recognition decision there for the purpose of carrying out the professional activities linked to the use of those professional qualifications. If he or she has already applied for the recognition of his or her professional qualifications before the end of the transition period, his or her application will be processed domestically in accordance with the EU rules applicable when the application was made.

Social security:

The Withdrawal Agreement provides for rules on social security coordination in relation to the beneficiaries of the citizens' part of the Withdrawal Agreement, and to other persons who at the end of the transition period are in a situation involving both the United Kingdom and a Member State from the social security cooperation perspective.

Those persons will maintain their right to healthcare, pensions and other social security benefits, and if they are entitled to a cash benefit from one country, they may be able to receive it even if they decide to live in another country.

Applicable procedures:

The Withdrawal Agreement leaves the choice up to the host state whether to require or not a mandatory application as a condition for the enjoyment of the rights under the Withdrawal Agreement. The UK has already expressed the intention to apply a mandatory registration system for beneficiaries of the Withdrawal Agreement. Those fulfilling the conditions will be issued with a residence document (which may be in electronic form).

Some EU Member States have indicated that they will also apply a mandatory registration system (so-called "constitutive system"). In other Member States, however, UK nationals complying with the conditions set out in the Agreement will automatically become beneficiaries of the Withdrawal Agreement (so-called "declaratory system"). In the latter case, UK nationals will be entitled to request that the host state issues them a residence document attesting that they are beneficiaries of the Withdrawal Agreement.

The EU has attached particular importance to the existence of smooth and simple administrative procedures for the citizens covered by the Agreement to exercise their rights. Only what is strictly necessary and proportionate to determine whether the criteria for lawful residence have been met, can be required, and any unnecessary administrative burdens will be avoided. These requirements are particularly relevant if the host state opts for a mandatory registration system. The costs of such applications must not exceed those imposed on nationals for issuing similar documents. Those already holding a permanent residence document will be able to exchange it for the 'special status', free of charge.

Administrative procedures for applications for the 'special status' that the UK or Member States will set up under the Withdrawal Agreement must also respect the above-mentioned requirements. Errors, involuntary omissions or non-respect of the deadline to submit the application have to be dealt with under a proportionate approach. The overall objective is to ensure that the process is as clear, simple and non-bureaucratic as possible for the affected citizens. 

Implementation and monitoring of the citizens' rights part of the Withdrawal Agreement:

The text of the Withdrawal Agreement on citizens' rights is very precise, so that it can be relied upon directly by EU citizens in British courts, and by UK nationals in the courts of the Member States. Any national law provisions that are not consistent with the provisions of the Withdrawal Agreement will have to be disapplied.

UK courts will be able to ask for preliminary rulings from the Court of Justice of the EU on the interpretation of the citizens' part of the Withdrawal Agreement for a period of eight years following the end of the transition period. For questions related to the application for the UK settled status, that eight-year period will start running on 30 March 2019.

The implementation and application of citizens' rights in the EU will be monitored by the Commission acting in conformity with the Union Treaties. In the UK, this role will be fulfilled by an independent national authority. This Authority will be granted equivalent powers to those of the European Commission to receive and investigate complaints from Union citizens and their family members, to conduct inquiries on its own initiative, and to bring legal actions before UK courts concerning alleged breaches by the administrative authorities of the UK of their obligations under the citizens' rights part of the Withdrawal Agreement.

The Authority and the European Commission shall inform each other annually through the Joint Committee established by the Withdrawal Agreement of the measures taken to implement and enforce the citizens' rights under the Agreement. Such information should include in particular the number and nature of complaints treated and any follow up legal action taken.

See also previous post17 November where dispute mechanisms are consider in more detail.

Further material:

UK government 14 November - Progress on the UK's exit from and future relationship with the EU

UK government - UK Nationals in the EU: essential information

 UK Government - Settled and pre-settled status for EU Citizens and their families.  

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