Post Brexit EU Citizens’ rights

Post Brexit EU Citizens’ rights were one of the three issues it was intended to resolve during the first phase of the Brexit negotiations, along with Northern Ireland and the financial settlement. On 8 December 2017 it was announced that sufficient progress had been made on the phase 1 issues to move to the second stage. Two key documents were published on that date: a Joint report on progress during phase 1 of the Brexit negotiations, and a Joint technical note setting out in detail the issues on which agreement had been reached.

On 28 February 2018 the European Commission (the Commission) published a first draft Brexit Withdrawal Agreement for discussion with the European Council and the Brexit Steering Group of the European Parliament before transmission to the UK authorities for negotiation. Following discussions, a revised draft Brexit Withdrawal Agreement was transmitted to the UK authorities for negotiation on 15 March 2018 in advance of a further round of negotiations on 16 to 19 March 2018.

On 19 March 2018, following the March 2018 negotiations, a further (third) draft Brexit Withdrawal Agreement was published by the Commission, with the text of the agreement coloured to indicate areas where the wording is ‘agreed at negotiator level’ (green), areas where the underlying policy objective is agreed but, per Commission Chief Negotiator Michel Barnier in his speech of 19 March 2018 ‘further clarifications are needed in the weeks to come’ (yellow), and areas where ‘discussions are ongoing’ (white).

For the purposes of what follows, it is relevant to note at the outset that, following the negotiations that took place between 16 and 19 March 2018, the UK agreed that free movement will continue until the end of the transition period, that being 31 December 2020 (see Article 121 and 122 of the draft WA). It is also relevant to note at the outset that nothing in the draft WA will impinge on the operation of arrangements between the UK and Ireland relating to the movement of persons between their territories (the ‘Common Travel Area’; see the Protocol on Ireland/Northern Ireland, Article 2).

These Practice Notes focus on what the draft WA says, insofar as it bears on citizens’ rights. They do not trace the history of the negotiations or comment on the earlier versions of the draft WA, save where that casts light (or shade) on the terms of the current agreement. They do not deal with provisions relating to social security, or Home Office proposals in relation to EU citizens residing in the UK after Brexit, which may be (and in fact are likely to be) more favourable in some respects for EU citizens in the UK than the draft WA requires.

Nothing is agreed until everything is agreed
This mantra of the Brexit negotiations bears repeating in the present context.

It will be seen that the whole of Part Two of the draft WA, which addresses citizens’ rights, is coloured green and, further, that Article 4 in Part One, which provides for the WA to have direct effect, whilst only partially agreed, includes a footnote confirming that its content ‘is agreed in its entirety in relation to Part Two of this Agreement’.

Assuming that a WA is eventually concluded between the EU and the UK, it is likely that the provisions on citizens’ rights will broadly, if not exactly, reflect the terms of the third draft WA.

There remains a risk, however, that there will be no concluded WA. Much ground remains to be covered in the forthcoming negotiations. Any putative agreement that is reached requires both the consent of the European Parliament and the agreement of the European Council by qualified majority (at least 72% of the members of the Council, representing Member States comprising at least 65% of the population of the EU). The UK’s adoption of the final agreement will be subject to a vote in parliament.

Given the political uncertainty surrounding the Brexit process, the prospect of a ‘cliff edge’ Brexit with no agreement cannot be ruled out. If no WA is concluded by 29 March 2019, and there is no extension of the Article 50 period, the UK would by default leave the EU with none of the obligations and safeguards that have been agreed in principle in the draft WA.

Whilst it might be assumed that, in those circumstances, the UK would continue to implement its proposals for granting ‘settled status’ (and in fact, the UK intends to begin accepting applications for settled status before the transition period begins), there has to date been no unilateral guarantee to that effect.

Direct effect
Union citizens and UK nationals shall be able to ‘rely directly’ on the citizens’ rights provisions in Part Two of the WA. The UK must legislate to ensure compliance with this commitment.

Transition period
It is agreed that there will be a ‘transition or implementation period’, beginning on the day on which the WA enters into force, and ending on 31 December 2020. Save to the limited extent specified in Article 122(1) and 122(2), EU law shall be applicable to and in the UK during the transition period. Free movement will continue unabated for EU citizens in the UK and UK nationals in the EU27 states.

Applicable law, enforcement and the role of the CJEU
EU law concepts in the agreement are to be interpreted in conformity with the relevant caselaw of the CJEU handed down before 31 December 2020.

The Commission’s proposed text on Judicial Procedures is found in Part Three, Title X (not agreed). It provides, amongst other things, for the CJEU to retain jurisdiction in proceedings and requests for preliminary rulings which are live before it before the end of the transition period. Alleged breaches by the UK of the Treaties or of the terms of Part Four of the draft WA (Transition) during the transition period are also to be justiciable before the CJEU.

The UK’s courts and administrative authorities will be required to have ‘due regard’ to CJEU rulings handed down after the end of the transition, rather than being bound by them (Article 4(5), agreed in relation to Part Two). However, express provision is made in Article 151 (in the Title covering Consistent Interpretation and Application) for the CJEU to have a continuing role in relation to the interpretation of Part Two of the WA in the UK for far longer:

• Article 151(1) provides that where, in a case which has commenced at first instance in the UK within eight years of the transition period ending, an issue arises concerning the construction of Part Two of the WA, and where the relevant court or tribunal considers it necessary, it may request a preliminary ruling on the point from the CJEU

• where the issue arising relates to the provision of residence documents under Article 17(1) or 17(4) or Article 17a, the eight-year period runs from the date on which Article 17a first applies (Article 151(1)). That is to say, where the process for considering and granting residence documents is commenced before the end of the transition period, as permitted by Article 17a(1), the eight-year period within which preliminary rulings can be sought from the CJEU runs from the date on which that process begins, and not from the end of the transition period

the legal effects in the UK of a preliminary ruling under Article 151(1) shall be the same as the legal effects of preliminary rulings under the present regime

Also of relevance here is Article 154, which permits the UK to participate in proceedings before the CJEU where a preliminary ruling is sought by a court or tribunal of a Member State concerning the interpretation of any provision of the WA.

Finally, Article 155 permits the Commission to intervene in writing and, with the permission of the relevant court or tribunal, by way of oral submissions in proceedings in the UK regarding the interpretation of the WA where the consistent interpretation and application of Part Two is concerned.

The joint committee and the committee on citizens’ rights
Article 157 establishes a ‘Joint Committee’ comprising representatives of the EU and the UK to meet at the request of either party or in any event at least once a year.

The Joint Committee will be responsible for the implementation and application of the WA. The duties of the Joint Committee are:

• to supervise and facilitate the implementation and application of the WA to decide on the tasks of the specialised committees and supervise their work

• to seek appropriate ways and methods of preventing problems that might arise in areas covered by the WA or of resolving disputes that may arise regarding the interpretation and application of the WA

• to adopt its own rules of procedure, as well as rules of procedure of the specialised committees

• to consider any matter of interest relating to an area covered by the WA

• to adopt decisions and make recommendations as set out in Article 159. Article 159 further provides that the Joint Committee shall have the power to make binding decisions ‘in respect of all matters for which [the WA] so provides and make appropriate recommendations to the Union and the United Kingdom’, and

• to adopt amendments to the WA in the cases provided for in the WA

Article 158 provides for the creation of a number of specialised committees including a Committee on citizens’ rights. The Joint Committee may delegate responsibilities to the specialised committees. The specialised committees are to meet at least once a year, and at the request of either party or the Joint Committee. Members of the specialised committees are to have relevant expertise.

There is provision in Article 162 (not agreed) for disputes concerning the interpretation or application of the WA to be brought before the Joint Committee, with the Committee to have the power to settle the dispute by way of a recommendation. The Commission’s proposed text provides for the Joint Committee to have the discretion to refer a dispute to the CJEU for a ruling, and for the court’s ruling to be binding on both the EU and the UK. It is further proposed that if the Joint Committee has not settled a dispute within three months, either party will be entitled to refer the matter to the CJEU for a ruling.

The Commission also proposes a mechanism in Article 163 (not agreed) whereby the EU or the UK as the case may be can bring the other party before the CJEU for an alleged failure to comply with a judgment issued under Article 162. The proposal is that the court shall have the power to impose financial penalties on the defaulting party. Further provisions in relation to alleged defaults are set out in draft Article 163(2).

Independent authority to monitor implementation of Part Two in the UK
Article 152(1) requires that, in relation to the implementation of Part Two, the UK establish an independent authority with power to inquire into alleged breaches of Part Two, and to receive complaints from EU citizens and their family members for the purposes of conducting such inquiries. The authority shall also have the right, following such complaints, to bring a legal action before a UK court or tribunal.

The Commission and the authority are required to report to the Committee on citizens’ rights annually on the implementation and application of Part Two in the EU and in the UK respectively including on the number and nature of complaints received.

The authority shall exist for a period of at least eight years after the end of the transition period. After that period it can be abolished, but only if the Joint Committee decides that this may happen.

Related citizens’ rights issues—rights of workers and self-employed persons
Part 2 of the draft WA also contains provisions which concern important aspects of citizen’s rights beyond purely residence matters.

Chapter 2 concerns the rights of workers and self-employed persons. The rights of workers are addressed in Article 22. The rights of self-employed persons are addressed in Article 23.

Workers in the host state and frontier workers in the state or states of work shall enjoy the rights guaranteed by Article 45 TFEU, which provides for the free movement of workers within the EU or granted by Regulation (EU) 492/2011 of the European Parliament and of the Council on freedom of movement for workers. As set out in Article 22(1) of the draft WA, these include:

• the right not to be discriminated against on grounds 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 or the state of work

• the right to assistance afforded by the employment offices of the host state or the state of work as offered to own nationals

• the right to equal treatment in respect of conditions of employment and work, in particular as regards remuneration, dismissal and in case of unemployment, reinstatement or re-employment

• the right to tax and social advantages

• collective rights

• the rights and benefits accorded to national workers in matters of housing

• the right for their children to be admitted to the general educational, apprenticeship and vocational training courses under the same conditions as the nationals of the host state or the state of work, if such children are residing in the territory where the worker works.

Where the child of a worker who has ceased to reside in the host state is in education, that child’s primary carer shall have the right to remain in the host state until the child reaches the age of majority, and thereafter if they continue to need the presence and care of the primary carer to pursue and complete their education. See the discussion on derivative rights of residence in Practice Note: Citizens’ rights of residence in the withdrawal agreement—scope, rights and redress.

Article 22(3) creates a right for employed frontier workers to enter and exit the state of work.

Subject to the limitations in Articles 51 and 52 TFEU, self-employed persons in the host state and self-employed frontier workers shall enjoy the rights guaranteed by Articles 49 and 55 TFEUincluding:

• the right to take up and pursue activities as self-employed persons and to set up and manage undertakings under the conditions laid down by the host state for its own nationals, as set out in Article 49 TFEU; and

• the rights as set out in points (c) to (h) of Article 22(1) (as set out above).

Article 23(2) applies Article 22(2) to the children of self-employed persons (residence right of the child’s primary carer, where the child is in education and the self-employed person has left the host state).

Article 23(3) applies Article 22(3) to self-employed frontier workers (right to enter and exit state of work).

Article 24 permits the state of work to require frontier workers to apply for a document certifying that they have rights in that capacity. Where such a requirement is imposed, those to whom it applies, shall have the right to be issued with such a document.

Related citizens’ rights issues—professional qualifications
Professional qualifications are addressed in Articles 25 to 27. They have the effect that, if a professional qualification was recognised in the host state before the end of the transition period, the holder of that qualification will be able to continue to rely on the qualification in that state after the transition period comes to an end. Similarly, where an application is made for a professional qualification to be recognised before the transition period ends but is not determined by the time it ends, the consideration shall continue under the rules applicable before the transition period ended. There is no provision in the draft WA for recognition of qualifications obtained after the end of the transition period (including qualifications a person might already be in the process of obtaining). There may be further developments on this issue in the negotiations addressing the future relationship between the EU and the UK.

Related citizens’ rights issues—social security
Title III of Part Two addresses the co-ordination of social security systems. It is beyond the scope of this Practice Note.

Related citizens’ rights issues—other provisions
The three articles within Title IV address, respectively, publicity (Article 33), more favourable provisions (Article 34), and life-long protection (Article 35), all of which are concepts of fundamental importance to the implementation of the post-transition regime.

Article 33 obliges the Member States and the UK to publicise the rights and obligations of persons covered by Part Two of the WA.

More favourable provisions
Article 34 confirms that (save in relation to Title III: Social Security) nothing in Part Two shall impact upon provisions of domestic law or any administrative provisions in a host state or state of work which would be more favourable to the persons concerned. At time of writing (May 2018) it appears likely that the UK’s arrangements will be more favourable than required by the terms of the WA in some significant respects.

Life-long protection
Article 35 provides that those covered by Part Two shall enjoy the rights provided for thereunder for their lifetimes unless they cease to meet the conditions set out in the relevant Titles.

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