On Monday 18 March, the European Commission published its third draft legal text for the Withdrawal Agreement and announced that it and the UK had reached “complete agreement” on citizens’ rights.
You’re probably wondering whether that is in fact the case, and where the March agreement leaves you. This is a quick (and non-exhaustive) general summary of the state of play. It’s a mixture of good news, bad news and unfinished business, the balance of which is different for each of us, depending on the particular situation that we are in.
We are still hoping that the unfinished business, such as whether we have free movement across the EU 27, will be discussed in the second phase and we at British in Europe are continuing to campaign hard for that. Our big concern is that it could get lost in the mass of issues now to be discussed such as airline slots. And until the final agreement is signed, none of this is set in stone – although it is unlikely that what has been agreed so far will be changed, if there is no deal then there is no guarantee of our rights.
One big change following the draft agreement is that there will – assuming that the final agreement is ratified – be a transition period which will last until 31 December 2020, and that almost all our rights will remain unchanged until then. This is the ‘effective date’ referred to in the paragraphs that follow. This also means that anyone who arrives during this period will be covered by the protections of the Withdrawal Agreement on the same terms as those present before Brexit day itself.
- If you are ‘legally resident’ on transition day you can stay – but in some countries, you may have to make an application to secure this (see below). This includes people who have moved to the EU27 up to the end of transition on 31 December 2020.
- The current conditions for a right of residence under EU law will apply unless an EU country decides to require an application to secure status (see below) . For the first 3 months there are no conditions. After 3 months you have to be working/self-employed, self-sufficient, a student or a family member of any such person. People who are self-sufficient or students have to have health insurance (for pensioners or others who hold one, the S1 form is sufficient). After 5 years these conditions fall away and you will either be entitled to ‘permanent residence’ or may have to apply to secure it.
- The 5 years can include years both before and after the effective date. Anyone with less than 5 years’ residence can build up their years until they reach 5, when they are eligible for permanent residence, under the same conditions as now (see above).
- If you have acquired permanent residence, you can be away from your host country for 5 years and still retain the right to return and keep your rights of permanent residence. This includes where you have acquired permanent residence before the effective date but are not actually resident in the country on the effective date e.g. because you are on a work posting or studying.
- Reciprocal healthcare is agreed, so that those who have an S1 or will be eligible for one when they retire will still have their healthcare funded by the UK. For these people this includes a UK issued EHIC which will cover travel across the EU27 and, we believe, to the UK. This means that for those who pay into the national system in their country of residence e.g. a British person working in Germany, the rules will also remain the same as they are now.
- Aggregation of social security contributions is agreed, both before and after the effective date.
- Lifetime export of uprated pensions is agreed – so your UK state pension will be increased annually just as it would be if you were living in the UK.
- There is some agreement on recognition of professional qualifications – if you have an individual recognition decision re your qualification including through automatic recognition e.g. doctors, architects, your qualification will continue to be recognised but only in the country where the decision was issued.
- If you are a ‘frontier worker’ according to EU rules – living in one country and working in one or more other countries at the effective date – you will still have the right to work in each country.
- Subject to the next bullet point certain close family members (spouse, civil partner, direct ascendants/descendants who are dependant on you) will be able to join you if your rights are protected under the withdrawal agreement. This will apply for the whole of your lifetime. If you have children after the effective date they also are protected under the withdrawal agreement if you and the other parent are also protected or a national of the country you live in.
- The present wording excludes children born after transition to parents one of whom (i) is a third country national (ie not an EU or UK citizen covered by the agreement) or (ii) is an EU or UK national not residing in the host state at the end of transition, but British in Europe has challenged whether this omission was intentional.
- The rights will have direct effect, which means that they are binding and you can rely on the rights set out in the Withdrawal Agreement directly before the courts even if the country where you are living doesn’t apply the provisions of it correctly in national law.
What hasn’t been included:
- Continuing freedom of movement – which includes the ability to move, reside and work in EU27 countries other than our country of residence/frontier working, as well as other rights such as visa-free travel. If the final Withdrawal Agreement does not include a right of free movement across the EU 27 for UK citizens in the EU, there is EU legislation dealing with rights of third country nationals (non-EU citizens) to move within the EU. How this might apply to UK citizens in the EU would have to be agreed but it is fair to say that it doesn’t offer free movement rights, which we have now as EU citizens, and is considerably more limited. And we will also need to see what the future UK-EU agreement says on this point.
- The right to provide cross-border services as self-employed people.
- Some professional qualifications e.g. lawyers practising under their home titles and EU-wide licences and certificates are not covered, and recognition of qualifications outside the country of recognition/residence across the EU 27 is unlikely to be discussed further as part of the Withdrawal Agreement.
- The right to be joined by a future spouse or partner – ie one that you weren’t in a relationship with on the effective date.
- The right to return to the UK with a non-UK spouse or partner and other family members under the much more favourable EU law regime.
- Partners who are not married and do not have a civil partnership are not covered as “family members” and have more limited rights under the Withdrawal Agreement unless they have an independent right of residence of their own in the host state. Although this is the same as the position under existing EU law, given the greater scrutiny and bureaucratic barriers which may apply after transition, people in that situation should consider whether to ensure their position as family members now by marriage or a civil partnership.
- Those whose right of residence at the end of transition is purely as a family member will never obtain e.g. their own family reunification rights. British in Europe has challenged the negotiators to amend the Agreement to clearly exclude from this group those who have resided in their host state for 5 years at the end of transition: the understanding reached in December, which this Agreement is supposed to implement, clearly did so.
- Ring-fencing of the agreement so far.
So should you be happy?
It’s reasonable to say that for those who are happily settled in their country of residence, work solely in that country, have retired there or are pre-retired, have no wish or need to move to or work or study in another EU country, fulfil all the requirements for exercising treaty rights (see here) and don’t rely on professional qualifications, then your rights are should be covered.
The agreement allows each EU27 state to choose between 2 options for ‘certifying’ our rights after Brexit.
EITHER: they can adopt what’s called a declaratory system, which mirrors what happens now and simply confirms the rights that we already hold, whether as permanent residents (5 years or more) or temporary residents (less than 5 years). If an EU country adopts this system, the current system won’t change much but we will be able to apply for a residence document to prove our status.
OR: they can adopt a constitutive system. Under this, we would have to APPLY for a new status; the application process would include checks on whether people had been exercising treaty rights, as well as criminality checks. This is the equivalent of the UK proposal for EU citizens of ‘settled status’; the concept of reciprocity has led to this being an option for each EU27 country if they wish to adopt it.
The draft Withdrawal Agreement could give the impression that the constitutive system is the default, devoting many paragraphs of detail to it. We have no idea yet whether any EU country will choose to impose this system – though it must remain a possibility given that all EU citizens in the UK will be subject to it. It’s not good news, because (i) it means we would have to apply for a new status instead of having our existing rights confirmed (ii) some people would struggle to find the proof that they meet the statutory requirements of ‘legal residence’ and (iii) as we all know, bureaucracies can make mistakes.
This is one of the major objections by British in Europe to this agreement.
Another is, of course, the fact that free movement isn’t included. This is a big deal for many people whose livelihoods depend on being able to work in an EU country other than their country of residence and who don’t fall under the definition of a frontier worker. This particularly affects cross-border workers, especially the self-employed. It also matters to our children, who would find their rights to study elsewhere in the EU27 curtailed without it. And it has a big knock-on effect for the territorial scope of professional qualifications and economic rights (e.g. to run a business), which currently would only apply in our host country.
In a nutshell, we think the draft agreement has more holes than a piece of French Emmental.
We shall be continuing our strong advocacy campaign on all these issues in months to come to ensure that outstanding issues don’t fall off the table.
 See “current conditions for a right of residence under EU law” above.