Regardless or not of whether there is a new future relationship agreement ready to take effect, the Northern Ireland Protocol is to commence at the end of the transitional period. It is to last for an initial period of four years. This may be extended every four years by democratic consent in Northern Ireland. Democratic consent is contemplated to be by way of the decision of the majority of the Northern Ireland Assembly. If the consent of both designated unionists and designated nationalists (or 60% overall with 40% of either designation) is forthcoming, then the Protocol is to continue for another eight years until further consent to renewal.
The United Kingdom government has set out certain alternative arrangements for demonstrating democratic consent where the Northern Ireland assembly is not sitting as has been the case for much of its existence.
Should the consent of the Northern Ireland Assembly (or another democratic consent mechanism) not consent to renewal then there is a standstill period of two years in which steps are to be taken to ensure compliance by the Irish and UK government with the requirements of the Belfast Agreement/Good Friday agreement.
The provisions on citizens’ rights in the Withdrawal Agreement are of enormous practical importance to EU citizens living in the United Kingdom and British citizens living in the EU 26 countries. Because of the long-standing Common Travel Area, Irish and British citizens will continue to enjoy the rights to travel to and settle in each other’s jurisdiction unconditionally, even after Brexit.
The Common Travel Area rights are not the same as the extensive rights enjoyed by EU citizens under the EU treaty and EU legislation which can be asserted against governments and governmental bodies in any EU states. The Common Travel Area has grown up in practice and the rights that it entails are not precisely defined.
Broadly the key right is to travel visit or settle in the other jurisdiction on the basis of having immediate lawful settled status. Traditionally each of Ireland and the United Kingdom has afforded the others’ citizens most of the rights it affords its own citizens.
Persons born in Northern Ireland may elect to be Irish citizens, British citizens or both. This right is guaranteed by the Belfast/Good Friday agreement. Irish citizenship is usually asserted by applying for an Irish passport. Irish citizens enjoy the benefit of EU citizenship. This includes the right to assert the key EU treaty and legislative freedoms to travel work and settle in EU states subject to various conditions. Other key EU rights such as the right to sell goods and to provide services into another EU state require residence or establishment in an EU state so that they could not be asserted by Irish citizens outside of Ireland.
Residents and businesses established in Northern Ireland will have EU like rights enforceable in the same way as under EU law to trade in goods with other EU states under the Northern Ireland Protocol, for so long as it applies.
The Withdrawal Agreement grants special rights to citizens of each of the EU and UK residents in the other territory which are enforceable after the effective date of Brexit in much the same way as before. Those who have acquired permanent settled status, retain it. Broadly speaking persons in the course of acquiring permanent rights to remain. continue to accrue those rights in the same way as before the effective date Brexit.
Persons with five continuous years of residence in the other state will generally have a right to reside permanently in the home state under the same conditions as applied prior to the effective date of Brexit. Such EU citizens and UK nationals retain the rights to travel provided under EU citizenship law with a valid passport or identity card.
The rights extend to EU and UK citizens who exercise the rights to reside in the other territory or work as a frontier worker prior to the end of the transition period. Subject to conditions, their family members who reside in the host state before that date, retain the same rights. Family members are defined broadly including certain dependents and carers. There are distinctions and differing conditions as between family members who are citizens of non-EU countries and those who are citizens of EU countries, similar to those which apply before Brexit.
Because most EU rights accrue automatically, many UK and EU citizens have resided in the other’s territory informally and without registration requirements. The Withdrawal Agreement provides for the issue of (sometimes electronic) documentation confirming the entitlement of the citizens concerned to have continued rights as provided.
The procedures for the issue of the residence documents are to be simplified. The deadline for submitting the application is to be at least six months before the end of the transition period. There are provisions for variations and extensions. The administrative arrangements for application are to be smooth transparent and simple. Documents are to be issued free of charge. The proof of entitlement is simplified.
EU citizens and UK nationals who qualify for the above rights continue to enjoy equal treatment with nationals of the state in which they reside. This right applies to their family members with the right of residence. The host state is not required to confer entitlement to social assistance nor to most student grants and loans (other than for workers) in the same way as applies prior to Brexit.
Existing Residents and Frontier Workers
EU and UK workers in the other territory are to continue to enjoy EU rights in relation to discrimination, terms of employment, assistance by employment offices, social and tax advantages, collective rights, housing education, and training. Certain rights for their direct descendants continue. Frontier workers who crossed the border and work in the other state continue to enjoy the same rights as before.
In the same way, self-employed persons in the host state or self-employed frontier workers are to continue to enjoy the pre-existing regime of rights. This includes the right to take up and pursue an activity as a self-employed person and to manage businesses on the same conditions as nationals. Similarly, their descendants are entitled to the same rights as those of workers.
Persons whose professional qualifications are recognised before the end of the transitional period are entitled to continued recognition. They are to have the right to pursue the profession under the same conditions as nationals. as applied prior to the effective date of Brexit.
Provisions are made for continuity of social security rights for EU citizens and UK nationals under each other’s laws which are applicable at the end of the transition period. The defined categories are to be covered for so long as they continue without interruption to be covered by the conditions.
Persons who comply with conditions for aggregation of social insurance contributions and credits under the existing legislation are to continue to benefit provided they comply with certain conditions at the end of the transition period.
The Withdrawal Agreement makes provision for UK’s financial obligations and rights both during the transitional period and after the effective date of Brexit. United Kingdom is to continue to contribute to the EU budget and participate in EU schemes until the end of 2020. The United Kingdom is liable for a share of the commitments which continue beyond the end of 2020 subject to limits and conditions. There are provisions for calculation of the final value of those commitments after a further period when the relevant amounts have been ascertained or can be better estimated.
The United Kingdom is liable EU for a share of all outstanding EU liabilities with certain exceptions and deductions. This includes those in respect of pension rights and employment. There are complex conditions for calculation.
The UK is liable for contingent financial liabilities applying after the effective date of Brexit by reason of events and circumstances occurring before that date. There are complex mechanisms for the final ascertainment of the relevant amounts.
The European Union is liable to the United Kingdom for its share of the net assets of certain bodies and entities including the European Coal and Steel Community the European Central Bank and the European Investment Fund. There are provisions for when payments are to be made for the various categories of liability and where and when credits are applicable.
Cut off issues
Goods that are placed on the market in the EU or UK before the end of the transition period may continue to circulate between the two markets until they reach the end-user or are put into service in the other territory. EU requirements regarding the marketing and sale of the goods apply.
There are special provisions relating to animals, germinal products and animal products. Movement of goods which commenced before the transition and end after it remains subject to the EU rules on free movement. This is to be proved by the transport document relating to the goods in most cases.
Goods that are in temporary storage or under other customs procedures at the end of the transition period in the United Kingdom remain subject to the EU customs code. If they are released and the goods are cleared. EU rules apply to the clearance and discharge of the goods.
EU VAT rules apply to goods where the dispatch or movement commences before the end of the transition period. They are also to apply for five years in relation to the rights and obligations of persons subject to VAT in transactions with a cross-border element that took place before the end of the transition period. Refunds relating to VAT paid by a business territory paid in the other may be claimed by 31st March 2021.