On 8th December 2017 the EU and UK negotiators issued a joint report on progress in the negotiations for a withdrawal agreement between the United Kingdom and the EU It confirmed that the parties had reached agreement in principle on the key areas set in the EU negotiation guidelines for the first phase of negotiations namely protection of mutual protection of citizens’ rights, financial settlement the unique position of Northern Ireland.
The agreement in principle confirms that citizens rights in the withdrawal agreement are to be interpreted in accordance with the Court of Justice of the EU case law. The agreement covers UK and EU citizens respectively legally resident in the other jurisdiction on the specified date. It confirms that there must be no discrimination on the grounds of nationality in either case in respect of those covered by the Withdrawal Agreement.
Irrespective of nationality, the following categories of family members not resident in the host State on the specified date may join the EU or UK citizen after that date for the lifetime of the rights holder under the same conditions as under pre-existing EU law. The includes
- all family members under the Citizen’s Directive however related in the specified day and who continue to be so related.
- children born or adopted after the specified date either inside or outside the host State where the child is born or legally adopted by the parents protected by the agreement or where one parent is protected and the other is a national of the host State or
- a child born to or adopted by parents who are protected by the agreement who have sole or joint custody under the applicable family law (without prejudice in particular as regards the operation of that law regards the best interest of that child).
The EU and UK will respectively facilitate entry and residence of partners in a durable relationship in accordance with the Citizens’ Directive after the Withdrawal Agreement even if the partners do not reside in the host State on the specified date.
Persons who are frontier workers on the specified date are also covered by the agreement.
Procedure to Claim Rights
Each of the UK and EU may require persons concerned to apply to obtain status conferring the right of residence given by the Withdrawal Agreement and be given a residence document for that purpose. The UK and EU may continue the existing system under which entitlement to rights are proved in other manners.
The procedures for application for status must be transparent, smooth and streamlined. Nothing more than that which is strictly necessary or proportionate to determine whether the criteria are met can be required. The host state will avoid any unnecessary administrative burdens. The application form will be short, simple and user-friendly. States will work with applicants to help them prove eligibility and avoid errors and omissions.
Where an application is required adequate time of at least two years is to be allowed to persons who benefit from the Agreement to submit their applications. During such time they will continue to enjoy their rights under the Withdrawal Agreement. Authorities will give applicants the opportunity to furnish further evidence and rectify defects in their application. A proportionate approach will be taken to those who miss the deadline.
Pending a final determination including a judgement if the matter is legally challenged the Withdrawal Agreement shall apply to the applicant. Applicants who submit fraudulent or abusive applications may be removed even before a final judgement has been handed down in a judicial challenge.
Decisions in relation to obtaining status are to be made in accordance with objective criteria with fair procedural safeguards. There are to be mechanisms for redress in respect of decisions and access to a court to challenge legality.
The conditions for acquiring permanent residence are the same as in the Citizens Directive. Lawful periods of residents prior to the specified date are to be included in calculating the required period. The UK and EU states may apply more favourable national provisions.
Systematic criminality and security checks can be carried out on applicants in the context of acquiring status under the Withdrawal Agreement.
Persons who require permanent residence in the host state under the agreement may be absent for up to five years without losing the status.
Restrictions on the ground of public policy or security are to be subject to the Citizens Directive provisions before withdrawal, and thereafter subject to national law. Social security coordination rules of the EU apply. They will allow aggregation of periods of social insurance to EU and UK States respectively in respect to work periods in the other in the past.
Ongoing Rights for Brexit Day Residents
Rules for healthcare including the European Health Insurance Card will follow the existing regulations. Persons whose competent state is the UK who are in the EU on the relevant date and vice versa (whether temporary stay or residents) continue to be eligible for healthcare reimbursement, including under the European health insurance scheme as long as that stay, residence or treatment continues.
Equal treatment applies in accordance with the EU treaty provisions and the Citizens Directive including rights of workers, self-employed students and economically inactive persons with respect to social security, social insurance, health care employment, self-employment setting up and managing a business, education including higher education, training social and tax advantages.
- the recognition of qualification granted to persons covered by the Withdrawal Agreement before the specified date and for frontier workers.
- those recognised under the Lawyers Directive as having the right to practice under their home state title and
- recognition procedures that are ongoing on the specified date
are to be completed under EU law and “grandfathered”.
Assertion of Rights
The parties are to give effect to the Withdrawal Agreement in EU and UK legislation respectively. That legislation in so far as it reflects the agreement is to take precedence over other inconsistent or incompatible rules. In the UK an implementation bill will give effect to the agreement and will prevail over inconsistent incompatible legislation.
The agreement establishes rights for Citizens following from those established under EU law during UK membership. The Court of Justice of the European Union is the arbiter in the interpretation of EU law. In the context of applications and interpretation, UK courts shall have due regard to the relevant decisions after the specified date.
The Agreement should establish a mechanism allowing the UK court or tribunal to decide having due regard to the relevant case law to ask the Court of Justice of the EU questions of interpretation as they consider necessary for the purpose of giving judgement in the case before it. The mechanism should be available for UK courts and tribunals for litigation brought within eight years of commencement.
The implementation and application of the citizen’s rights part are to be monitored by the Commission in the EU and by an independent national authority in the UK. Its. functions and scope including the role for citizens’ complaints will be discussed and reflected in the withdrawal agreement.
Northern Ireland Principles
A Joint report was concluded in December 2017 following the first stage of negotiations between the EU and UK. Both parties reaffirmed in the joint report, their commitment to peace, stability and reconciliation and for that purpose to the protection of the Good Friday Agreement including the practical application of the agreement on the Island on Ireland and the totality of relationships set out in the agreement.
The UK confirmed its commitment to protect the Agreement including subsequent implementation agreements and arrangements and to the effective and proper operation the institutions and bodies established under them and its commitment to the avoidance of hard border including any physical infrastructure or related checks and controls.
Both parties recognised the need to respect the 1998 Agreement including the provisions in respect of the Constitutional status of Northern Ireland as part of the UK and the principle that it could be altered only with the consent of the majority of the people in Northern Ireland.
The United Kingdom respects Ireland’s ongoing membership of the EU with its rights and obligations, including its place in the internal market and customs union.
The commitments in principle set out below will not pre-determine the outcome of wider discussions on the future relationship between UK and EU and are as necessary, specific to the unique circumstances of the Island of Ireland. There are made and must be upheld in all circumstances irrespective to if the nature of any future agreement between the UK and EU
NI North South Matters
The parties recognise co-operation between Ireland and Northern Ireland as a central part of the Agreement and that it is necessary for achieving reconciliation and normalisation of relations. The UK and EU record the roles function and safeguards of Northern Ireland Executive, Northern Ireland Assembly and the North-South Ministerial Council.
The two parties confirmed having undertaken a mapping exercise which shows that North-South cooperation relies to a significant extent on a common EU legal and policy framework such that the UK’s depart from the EU, gives rise to substantial challenges to the maintenance and development of North-South co-operation.
The UK confirms that it remains committed to protecting and supporting continued North South and East West co-operation across the full range of political, economic, security, societal and agriculture context and in the framework of co-operation including the continued operation of the North side implementation bodies.
The United Kingdom confirms this commitment to protecting North-South co-operation and its guarantee to avoid a hard border. The United Kingdom’s intention is to achieve these objectives through the overall EU UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the Island of Ireland.
In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the internal market and customs union which now and in the future support North-South e co-operation, the all-island economy and the protection of the 1998 Agreement.
In the absence of agreed solutions, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of United Kingdom unless consistent with the 1998 Agreement, the Assembly and Executive agree that the distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s business to the whole of the United Kingdom market.
Both parties agree to establish mechanisms to ensure the implementation and oversight of any specific arrangement to safeguard the integrity of the EU internal market and the customs union.
Both parties acknowledge that the Belfast Agreement recognise that the birthright of all persons of Northern Ireland to choose to be British, Irish or both. People of Northern Ireland who are Irish citizens will continue to enjoy EU citizenship including where they reside in Northern Ireland.
The Withdrawal Agreement should respect and would be without prejudice to the rights, opportunities, and identity that come with European Union citizenships for such persons. The EU and UK agree that in the next phase of negotiations they will examine arrangement to give effect to the ongoing exercise of and access to the EU rights, opportunities, and benefits.
The United Kingdom commits to ensure that there will be no diminution of rights, safeguards and equality protects for which EU law and practices have provided a supporting framework by the departure from the European Union. The European Union commits to facilitating the related work of the institutions and bodies established by the Belfast agreement in upholding human rights and equality standards.
The parties recognise that the UK and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories (the Common Travel Area) while fully respecting the rights of persons conferred the EU law. The UK confirms and accepts that the Common Travel Area and associated rights and privileges can continue to operate without affecting Ireland’s obligations under EU law, in particular in respect of the free movement of EU citizens.
Both parties agreed to honour their commitments to the PEACE and INTERREG funding programs under the current multiannual financial framework. The possibilities for future support will be examined favourably.
Given the specific nature of issues related to Ireland and Northern Ireland, and on the basis of the principles and commitments set out, both parties agree that the second phase of negotiations will continue on the detailed arrangements required to give effect to them. Such work will also address issues arising from Ireland’s unique geographical situation including the transit of goods from Ireland via the United Kingdom in line with the European Council Guideline April 2017.
The December 2017 Agreement provides confirms that both the EU and UK s agree on a methodology for the financial settlement. This includes a list of component principles for calculating the value of the settlement arrangements for the continued participation of the UK in programs of the current multiannual financial framework until closure and financial and related arrangements for the European Investment Bank, European Central Bank and certain other agencies.
The UK agrees to contribute to participate in the implementation of the EU’s annual budgets for 2019 and 2020. The UK will contribute its share to the financing of budgetary commitments outstanding at the end of 2020.
It will contribute its share of the financing of the EU liabilities incurred before that date except for liabilities with corresponding assets and those which are related to the operation of the budget and EU own resources matters.
The UK will remain liable for its share of the EU’s contingent liabilities established at the date of withdrawal. Those related to guarantees given by the EU budget to support financial obligations such as back to back loans for financial assistance and operations managed by the European Investment Bank and other similar bodies.
As provisioning needs for the financial operations associated with contingent liabilities decline, the UK share of paid in guarantees concerned will be returned, provide that it has not been used for recovering losses on underlying financial operations.
The UK is to provide a guarantee of its callable capital in respect of the European Investment Bank on withdrawal day. This is to decrease in accordance with the amortisation of the stock of the EIB operations. The UK share of the paid-in capital will be reimbursed in 12 annual instalments starting at the end of 2019. There are provisions for any call on guarantees given by the UK for the EIB.
The paid-up capital of the UK in respect to the European Central Bank will be reimbursed to the Bank of England after withdrawal. The arrangements for repayment are provided in a protocol to the ECB legislation.
The UK will honour its commitments for participating in the facility for refugees in Turkey and European Union Emergency Trust Fund for stability and addressing the root causes of irregular migration and displaced persons in Africa. The existing modalities of payments are to be maintained unless otherwise agreed in the second phase.
The UK will remain a party to the European Development Fund which is governed by separate international agreement after the closure of the 11th EDF. The UK will honour its existing share of total commitments.
Ongoing Matters on Brexit Day
The UK and the EU recognise the need to provide legal certainty and minimise disruption in respect to the availability of goods placed on the market before Brexit. They have agreed the principles that goods placed on the market before withdrawal may circulate freely on both the UK and EU markets with no need for product modifications or relabeling. They may be put into service were provided in EU law and the goods concerned should be subject to continued oversight.
In relation to co-operation on civil and commercial matters, there is need to provide legal certainty and clarity. There is a consensus that EU rules on the conflict of law should continue to apply to contract before the withdrawal date and non-contractual obligations, where the event causing damage occurred before Brexit date.
There is an agreement to provide legal certainty as to the circumstances in which EU law and jurisdiction and the recognition and enforcement of judgements will continue to apply. It is agreed that judicial co-operation procedure should be finalised.
On police and judicial co-operation in criminal matters, the need for legal certainty and clarity is noted. Both parties broadly agree on the principle that structured and formalised co-operation on-going on the withdrawal date that passes a certain defined threshold should be completed under EU law.
In relation to ongoing judicial procedures, both parties agreed that CJEU should remain competent for EU judicial procedures registered on the date of withdrawal and they should continue through to a binding judgement