Provisions on Citizens
Part 2 of the draft withdrawal agreement largely reflects the. December 2017 joint report. All of it is colour coded green in the publish draft on 19th March, indicating agreement in principle.
Articles 8 and 9 confirms that all EU ‘citizenship’ rights will continue to apply to EU nationals and their family members (as defined by EU law throughout the transition period.
Article 14 confirms that EU/UK nationals and their family members would acquire the rights of ‘permanent residence’ after accumulating five years’ continuous lawful residence in accordance with EU law, or the period specified in Directive 2004/38/EC (the ‘Citizens’ Directive), before or after the end of the transition period.
Article 14 provides that the right of permanent residence would be lost after more than five consecutive years’ absence from the host State.
As had been agreed in the December Joint Report, Article 17 specifies in greater detail a host of conditions and protections that any national registration system must adhere to. These would apply, for example, to the UK’s proposed process for issuing ‘temporary’ or ‘settled’ status documentation to EU citizens and their family members living in the UK. They may be in a digital form”.
Article 17 proposes that the Citizens’ Directive’s definitions be applied to EU nationals living in the UK, which would make having comprehensive sickness insurance mandatory for students and economically inactive people.
Article 32 provides that, the rights provided for by this Part shall not include further free movement to the territory of another Member State, the right of establishment in the territory of another Member State, or the right to provide services on the territory of another Member State or to persons established in the other Member States.
This proposed clause has been strongly objected to and is missing from later draft texts.
Article 34 confirms that the common travel area between the United Kingdom and Ireland will continue to function and stand separately.
Article 35, noting that: The persons covered by this Part shall enjoy the rights provided for in relevant Titles of Part Two for their lifetime unless they cease to meet the conditions set out in those Titles.
The draft WA generally may be superseded by a ‘future relationship’ treaty between the UK and the EU, following transition and withdrawal, but the citizens’ rights provisions will remain in force until the last EU/UK national benefitting from ‘acquired’ EU law rights passes away.
Rights of citizens during the transition period
The UK Government published a policy statement on 28 February 2018 making clear that it was seeking to restrict the rights of EU nationals moving to the UK after Brexit day (29 March 2019 (may also apply to new exit date on 31 December 2020)). In particular, it wanted to limit the rights of family reunification, receipt of child benefit, and continued oversight by the CJEU.
The draft WA agreement, however, makes explicit that the entire EU citizenship acquis continues to apply throughout the transition, and any EU nationals moving to the UK during the transition will benefit from the EU acquis for, effectively, their lifetimes. The EP had already made clear that it saw limiting the citizenship rights of EU nationals who move during the transition as an unacceptable form of discrimination.
The Government initially disagreed with the Commission’s proposal that EU/UK citizens who move during the transition period should be covered by the Withdrawal Agreement. Its policy paper argued that: The expectations of EU citizens arriving in the UK after our exit will not be the same as those who moved here before our withdrawal, and the same will be true of UK nationals moving to
an EU Member State. Instead, the Government wanted the UK and individual Member States to be free to decide what rights to remain those citizens would have after the end of the transition period. It did not make any detailed proposals on behalf of UK citizens who move to EU countries, apart from encouraging the other Member States to match the UK’s offer to EU citizens who arrive in the UK during the transition period.
The Government published a short policy statement setting out its proposals in respect of EU citizens arriving in the UK during the transition period. It proposed that:
- During the transition period, EU citizens and their family members would be able to move to the UK on the same basis as currently. This would be reflected in the Withdrawal Agreement.
- Those who arrived during the transition period and chose to stay for longer than three months would be required to register with the authorities, in accordance with existing provisions in EU
Directive 2004/38/EC (Article 8).
- EU citizens and their family members who arrived in the UK had registered and were resident in the UK during the transition period, would have been able to apply for a temporary status in UK law up to three months after the end of the transition period. This would have enabled them to lawfully remain in the UK as a worker, student or self-sufficient person after the end of the transition.
- They would have become eligible to apply for Indefinite Leave to Remain after they had accumulated five years’ continuous and lawful residence.
- Family members joining these EU citizens after the end of the transition period would have been subject to the same immigration requirements as family members of British citizens (e.g. English language proficiency, minimum income requirement, etc.)
- Frontier workers would also have had an option to apply for permission to continue to work on that basis after the end of the transition period.
- The rights afforded to these EU citizens would have been enforceable in the UK legal system.
Loss of free movement rights for UK citizens living in Europe
The potential loss of EU free movement rights for UK nationals living in an EU Member State at the time of Brexit is also proving to be controversial, though it is not yet clear what either side is proposing on this issue. The full implications of Article 32, which was included in the Commission’s first two drafts, are as follows:
- UK nationals resident in an EU Member State before the end of transition (as covered by Part 2 of the draft WA, under Article 9(b)), as well as UK nationals resident in an EU Member State who are exercising rights as frontier workers in one or more Member States (under Article 9(d)), would continue to hold the rights they are exercising at the moment the transition period ends: but only with respect to the Member State that they then reside in (if covered by Article 9(b)) or are then ‘frontier workers in’ (if covered by Article 9(d)).
What this would mean in practice is that any UK national in those positions would have all EU citizenship rights (including the right to work, access to benefits on equivalent terms as nationals of the state they live in/work in, and so forth) but only in the Member State they reside in or work in at the end of the transition period. Within that Member State, they are free to change status (e.g. go from employed to studying or retiring) without a loss of the rights the WA extends to them (according to Article 16(1)) – but these ‘acquired’ EU rights do not travel with them to a new Member State.
The UK government has made clear that its goals for the negotiations are to make visa-free travel throughout the EU possible as part of the future relationship it wishes to negotiate, and if successful, Article 32 will not stop those UK nationals resident in the EU from going on vacation or short business travel in the Schengen area. However, should they wish to work, ‘establish’ (e.g. set up a company), or provide services in or to a new EU Member State following the end of the transition
period, the earlier draft WA suggested that in doing so, they would be subject to the rules governing ‘third-country national’ TCN) settlement in those Member States, rather than the EU laws currently governing these ‘freedoms’.
- In terms of moving as an individual to work or simply live in a new Member State, the UK nationals in question will be subject to domestic immigration law (incorporating the limited EU rules on TCN immigration) in that Member State. These laws are generally significantly less generous than the EU free movement of workers/persons rules, and so it is likely that these UK nationals – upon wishing to move to a new EU Member State – would need to meet conditions such as having secured employment and meeting earning or savings thresholds. Their stay in the new Member State may also be time-limited.
- Regarding the establishment of businesses and the provision of services, domestic law again governs the rules applicable to TCNs. The WTO rules on the provision of services that the EU has signed up to, as a minimum requirement of what the EU Member States must enable regarding TCNs wishing to engage in the provision of services or setting up businesses, are highly complicated but significantly less generous than the EU rules on establishment and services. Without further clarity on the future relationship, at most it can be noted that the ability to work and engage in business in the other EU Member States will be as limited or open to UK nationals already resident in an EU Member State as they will be to UK nationals who did not exercise their free movement rights while the UK remained a member of the EU.
Coordination of social security I
Articles 28 – 31 are about the coordination of social security. Article 28 makes clear that every EU national and UK national covered by the draft WA (e.g. they were legally resident in the UK or in the EU respectively before the end of the transition period) will continue to be covered by the EU rules on social security coordination and aggregation.
These rules are laid down primarily in Regulation 883/2004, which determines which EU Member State is responsible for the calculation and payment of social security benefits for mobile EU citizens who move within the Union. Such citizens are, in principle, entitled to use the local benefits system on the same basis as nationals of their host Member State, including unemployment benefit, child benefit, and state pensions, as well as having a right to access short- and long-term healthcare.
Under Articles 30 and 31 of the draft WA, the UK would continue to need to comply with EU social security coordinating legislation for the duration of the lives of the EU nationals benefitting from this legislation.
To facilitate this, Article 30 outlines mechanisms by which administrative cooperation between the UK and the EU should remain possible. The UK would have observer status at the Administrative Commission for the Coordination of Social Security Systems, which was set up under Regulation 883/2004. It is composed of one representative from each Member States plus the European Commission and deals with administration and interpretation of the rules and promoting collaboration.
The UK will continue to take part in the Electronic Exchange of Social Security Information (EESSI) and “bear the related costs”. Moreover, to ensure uniform treatment, the UK has also undertaken to incorporate changes to the Regulation 883/2004 into the Withdrawal Agreement, meaning the Government would have to apply any changes adopted by the EU to that Regulation to persons covered by the citizens’ rights chapter of the Agreement for the duration of their lifetime.
However, the version of the WA dated 19 March contains a new provision for certain exemptions to this presumption that future changes to EU legislation in this area will always be incorporated into the WA. The new article 31(2)) stipulates that in case of:
- changes to article 3 of the Regulation (which lists the types of benefits covered by the coordination system); or
- any amendments to the extent to which cash benefits covered by the Regulation (such as child or unemployment benefit) can e ‘exported’ (i.e. drawn on) from the UK to an EU country or vice versa,
For such amendments to Regulation 883/2004, the UK-EU Joint Committee can decide (within 6 months of adoption of the amending legislation at EU-level) that the UK will not be required to implement the changes to the Regulation for citizens within the scope of the Agreement.
However, that this article will only take effect after the post-Brexit transitional period. During that period, the UK will have to apply all new EU legislation as if it were still a Member State. If the end date of 31 December 2020 for the transitional arrangement is maintained, article 31(2) would apply only to changes to Regulation 883/2004 that take effect after that date.
Coordination of social security II
The UK Position
Continued alignment with the EU social security coordination rules looks unlikely to be controversial. The EU rules have never stopped the UK from organising its social security system in a particular way but merely obliged it to extend any benefits given to a UK national to qualifying EU nationals in a similar position.
Articles 30 and 31 are coloured green in the 19 March draft, indicating EU and UK agreement.
However, the 19 March draft has introduced a few other changes to the scope of social security coordination the Withdrawal Agreement commits to. Article 28(2) thus now reads that social security coordination rules will only continue to apply if there is no “interruption” to the described situations; this means that the rights set out are not ‘permanently portable’, but instead remain with the EU or UK migrant only so long as they continue to live or work where they did at the end of the transition.
Article 31, furthermore, introduces Joint Committee control over assessing whether social security coordination changes should be applicable to the UK if they alter what benefits are covered by the EU social security rules, or if they make benefits either not exportable or exportable. Such decisions are to be made by the Joint Committee in ‘good faith’, considering how well social security coordination would function without the changes.
If the Joint Committee agrees within 6 months, the relevant updated EU law referred to will not apply to the Withdrawal Agreement. While providing a review mechanism, the new provision, therefore, does not give the UK the right to unilaterally refuse to apply new EU social security legislation (even where it would expand its scope to new categories of benefits or make a previously un-exportable cash benefit exportable).
This Article draws on BRIEFING PAPER Number 8269, 23 March 2018 Brexit: the draft withdrawal agreement. UK public sector information is reproduced pursuant to the Open Government Licence The Legal Materials contain UK public sector information licensed under the Open Government Licence v3.0. The Licence is available at http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/ (the UK Licence).