Tuesday, 13 March 2018

EU27 and UK citizens’ acquired rights in the Brexit withdrawal agreement: detailed analysis and annotation



Professor Steve Peers, University of Essex*   

The issue of the acquired rights of EU27 and UK citizens has long been a focus of this blog. The latest development in this field is the proposed rules in the Brexit withdrawal agreement on this issue, as recently tabled by the Commission. This follows on from the partial agreement on this issue in the joint report agreed by the UK and EU27 in December, which I analysed here. (Note that the health law implications of this part of the agreement were already discussed here by Professor Tamara Hervey, who proposed some additional amendments).

It remains to be seen whether the UK agrees to the Commission proposal on these issues; although a large part of the proposal reflects the December agreement in general terms, some points were left open and inevitably a legal text fleshes out points of detail which might not have been fully agreed in the previous, more political, text.

Even if the UK and EU27 side do agree on all the content of these proposals, there is a risk that this agreement is torpedoed because of failure to agree on (or ratify, if agreed) the rest of the withdrawal agreement. For that reason I have argued that the agreement on these issues ought to be ring-fenced, ideally as soon as possible but certainly if the main talks fail. I have also suggested the text of a ring-fenced treaty on citizens’ rights, simply extracting the relevant text of the Commission proposal.  

While the Commission proposals go a long way to guarantee the acquired rights of all concerned, there are still many possible omissions and uncertainties. I have pointed to all those I could discover, in particular as regards: EU27 citizens or UK citizens who return to their state of nationality; the non-EU parents of UK children; carers and others who have not had “comprehensive sickness insurance” as defined (rather questionably) by the UK, and did not realise they needed it; other aspects of the settled status” proposal; data protection rights; dual citizens of the UK and another Member State; and the loss of free movement rights by UK citizens in the EU27.

On all of these issues – and more – I have proposed amendments. I hope the blog post is particularly useful to those negotiating the withdrawal agreement, and those campaigning for amendments (see also the detailed proposals of British in Europe, for instance).

But in parallel to this detailed analysis it’s fair to say that we sometimes lose sight of the day-to-day human impact of immigration law. I’ll return to this point shortly with a rather more personal post about what the issues I discuss in detail here mean in practice.

Structure of the withdrawal agreement

Part Two of the withdrawal agreement (Articles 8-35) deals with citizens’ rights, and is the main focus of this blogpost. But I also annotate here the closely connected Part One, setting out the “Common Provisions”. The remaining titles concern “separation provisions” (Part Three: Articles 36-120); the transition (or implementation) period (Part Four: Articles 121-126); the financial settlement (Part Five: Articles 127-150); and the “Final Provisions” in Part Six (Articles 151-168). There will also be Protocols on the Irish border and Cyprus.

I have previously annotated the proposals on: the transition (or implementation) period, the final provisions of Part Six (mainly focussing on dispute settlement and the role of the CJEU); and the Irish border. Those provisions have some cross-overs with the citizens’ rights rules, as discussed in detail below. In particular, it should be noted that the UK government recently tabled a counter-proposal on the rights of EU27 citizens who arrive during the transition/implementation period.

Within Part Two, there are four titles:

-          Title I on General Provisions (Articles 8-11), which covers definitions, personal scope, continuity of residence, and non-discrimination;

-          Title II on Rights and Obligations (Articles 12-27), with Chapter 1 on residence rights and documents (Articles 12-21), covering entry and exit rights, residence rights, status, the application process, safeguards and appeal rights, related rights and equal treatment;  Chapter 2 on the rights of workers and self-employed persons (Articles 22-24), Chapter 3 on professional qualifications (Articles 25-27);

-          Title III on Social Security (Articles 28-31); and

-          Title IV on Other Rights (Articles 32-36).

*This blog post was supported by an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'

Barnard & Peers: chapter 27, chapter 13

Photo credit:



Annex – proposed text of withdrawal agreement, Parts One and Two, annotated



PREAMBLE

THE EUROPEAN UNION AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND,

[…]

HAVE AGREED AS FOLLOWS:

  

PART ONE

COMMON PROVISIONS

Article 1

Objective

This Agreement sets out the arrangements for the withdrawal of the United Kingdom of Great Britain and Northern Ireland ("United Kingdom") from the European Union (“Union”) and from the European Atomic Energy Community (“Euratom”).

Comment: Note the withdrawal from Euratom as well as the EU. This is hard, if not impossible, to avoid, for the reasons I discuss here.

Article 2

Definitions

For the purposes of this Agreement, the following definitions shall apply:

(a)  "Union law" means:

(i) the Treaty on European Union ("TEU"), the Treaty on the Functioning of the European Union ("TFEU") and the Treaty establishing the European Atomic Energy Community ("Euratom Treaty"), as amended or supplemented, as well as the Treaties of Accession and the Charter of Fundamental Rights of the European Union, together referred to as “the Treaties”;

(ii) the general principles of Union law;  

(iii) the acts adopted by the institutions, bodies, offices or agencies of the Union;

(iv) the international agreements to which the Union or Euratom is party and the international agreements concluded by the Member States acting on behalf of the Union or Euratom; 

(v) the agreements between Member States entered into in their capacity as Member States of the Union or of Euratom; and

(vi) acts of the Representatives of the Governments of the Member States meeting within the European Council or the Council of the European Union ("Council");

(vii) the declarations made in the context of intergovernmental conferences which adopted the Treaties.

(b) "Member States" means the Kingdom of Belgium, the Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Republic of Croatia, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland and the Kingdom of Sweden;

(c) "Union citizen" means any person holding the nationality of a Member State;

(d) "United Kingdom national" means a British citizen, as defined in the New Declaration by the Government of the United Kingdom of Great Britain and Northern Ireland of 31 December 1982 on the definition of the term ‘nationals’ together with Declaration No 63 annexed to the Final Act of the intergovernmental conference which adopted the Treaty of Lisbon;

(e) “transition period” means the period provided in Article 121.

Background: Point (a) comes from the Commission’s earlier proposal for the transition/implementation period clauses, which I annotated here. Compared to the previous draft, the Commission has added a reference to the Charter of Fundamental Rights (an omission which I raised in my annotation of the earlier proposal), added the words “and the international agreements concluded by the Member States acting on behalf of the Union or Euratom” to point (iv), and added the whole of point (vii). As discussed below, the UK government has proposed a different wording.

Points (b) to (e) are all added.

Comments: The definition of “Union law” in Article 2(a) is clarified further in Article 5. It is particularly relevant for Article 4(4), which requires that CJEU case law on Union law before the end of the transition/implementation period must be applicable.

The definition of “Member States” in (b) is straightforward, although Articles 6, 123 and 153 then go on to define the UK as a Member State for many purposes. Note that the definition is “frozen” by reference to the current EU27 countries; the UK would thus not be bound to protect the rights of citizens of countries that join the EU in future (logically enough, since they do not have EU law rights to protect at the time of the UK’s withdrawal). Conversely, the UK would be bound to keep protecting the rights of citizens of any other countries that might leave the EU.

Since the withdrawal agreement does not cover the position of citizens of non-EU countries whose migration status may derive from EU law, besides family members of EU27/UK citizens, their position depends upon the “rolling over” of any such treaties so that they continue to apply to the UK during the transition/implementation period, and then separately after that date.

Point (c) confirms the orthodox view that UK citizens lose their EU citizenship upon Brexit day, since the Treaties state that only nationals of Member States are citizens of the EU. However, it should be noted that this interpretation is being challenged.

Point (d) refers to UK declarations on the exact scope of its citizenship. The CJEU has ruled on this issue in the Kaur case, accepting the UK’s decision to define various groups of people as not actually UK citizens.

As for point (e), Article 121 states that the transition/implementation period ends at the end of 2020. The UK government has queried this; but that raises questions about how the period would be extended, whether this would go beyond the legal base of the withdrawal agreement, or how the period might be extended by a separate treaty after Brexit day. 

UK position: The UK proposes that this text appears in the Withdrawal Agreement section of the agreement, instead of the section on Common Provisions. Substantively, the UK takes a partly different approach from the Commission, suggesting definitions for “acts”, “Treaties”, “bilateral international agreement” and “Union law”.  “Acts” are defined by reference to various EU measures; “Treaties” only includes Treaty amendments before Brexit day; “bilateral international agreement” means those treaties which the EU entered into as a bloc; it’s clarified that Treaty Annexes, Protocols etc are covered; and acts adopted during the transition/implementation period are explicitly covered.


Article 3



Territorial scope

1.  Unless otherwise provided in this Agreement or in Union law made applicable by this Agreement, any reference in this Agreement to the United Kingdom or its territory, shall be understood as referring to:

(a)  the United Kingdom;

(b)  the Channel Islands, the Isle of Man, Gibraltar and the Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus to the extent that Union law was applicable to them before the date of entry into force of this Agreement;

(c)  the overseas countries and territories listed in Annex II to the TFEU having special relations with the United Kingdom, where the provisions of this Agreement relate to the special arrangements for the association of the overseas countries and territories with the Union.

2.  Unless otherwise provided in this Agreement or in Union law made applicable by this Agreement, any reference in this Agreement to Member States, or their territory, shall be understood as covering the territories of the Member States to which the Treaties apply as provided in Article 355 TFEU.

Comment: Article 355 TFEU refers to the territorial scope of the Treaties. Alongside the UK in point (1)(a), point (1)(b) includes cross-references to accession treaties as regards the status of the Channel Islands, Isle of Man, Cyprus bases and Gibraltar. The withdrawal agreement will have (if agreed) a separate protocol on the Cyprus bases, but it is not filled in yet. The proposal is that they will be affected by the withdrawal agreement to the extent they are covered by EU law already, which they are in part in different ways. For instance, see the recent CJEU judgment in Buhagiar, the latest ruling on which EU law applies in Gibraltar.

As for the overseas countries and territories in (1)(c), the draft agreement mentions them in Article 145(3) as regards financial issues, and in a footnote to Annex y+2, which concerns customs issues outstanding at the end of the transition/implementation period. According to Annex II to the EU Treaties, for the UK those countries and territories are: Anguilla; the Cayman Islands; the Falkland Islands; South Georgia and the South Sandwich Islands; Montserrat; Pitcairn; Saint Helena and dependencies; British Antarctic Territory; British Indian Ocean Territory; Turks and Caicos Islands; British Virgin Islands; and Bermuda.



Article 4

Methods and principles relating to the effect, the implementation and the application of this Agreement

1. Where this Agreement provides for the application of Union law in the United Kingdom, it shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States.

In particular, Union citizens and United Kingdom nationals shall be able to rely directly on the provisions contained or referred to in Part Two. Any provisions inconsistent or incompatible with that Part shall be disapplied. 

2. The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities, through domestic primary legislation.

3. The provisions of this Agreement referring to concepts or provisions of Union law shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union.

4. The provisions of this Agreement referring to Union law or concepts or provisions thereof shall in their implementation and application be interpreted in conformity with the relevant case law of the Court of Justice of the European Union handed down before the end of the transition period.

5. In the interpretation and application of this Agreement, the United Kingdom's judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period. 

Background: Article 4(1) partly reflects paras 34 and 35 of the joint report, which specified that “Both Parties agree that the Withdrawal Agreement should provide for the legal effects of the citizens' rights Part both in the UK and in the Union” and “The provision in the Agreement should enable citizens to rely directly on their rights as set out in the citizens' rights Part of the Agreement and should specify that inconsistent or incompatible rules and provisions will be disapplied.”

However, the first sub-paragraph goes beyond the joint report, since it refers to the entire agreement, and furthermore refers to the “same legal effect”, which was not expressly stated in the joint report. (Note that Articles 2(a) and 5 define “Union law” for the purposes of the Agreement). By comparison, the second sub-paragraph reflects the joint report precisely.

Article 4(2) partly reflects paras 34 and 36 of the joint report, which specified that “UK domestic legislation should also be enacted to this effect” (referring to citizens’ rights) and “The UK Government will bring forward a Bill, the Withdrawal Agreement & Implementation Bill, specifically to implement the Agreement. This Bill will make express reference to the Agreement and will fully incorporate the citizens' rights Part into UK law. Once this Bill has been adopted, the provisions of the citizens' rights Part will have effect in primary legislation and will prevail over inconsistent or incompatible legislation, unless Parliament expressly repeals this Act in future.” So the proposal partly reflects what the UK agreed to in December, but partly goes beyond it, to the extent that Article 4(1) covers the agreement as a whole, not just the citizens’ rights part.

Article 4(3) is a general provision, supplemented by the following two paras, on the interpretation of the entire agreement in conformity with EU law principles. This does not reflect any prior agreement by the UK. (Again, note that Articles 2(a) and 5 define “Union law” for the purposes of the Agreement).

Article 4(4) means that CJEU case law up until the end of the transition/implementation period will be binding. The text is taken from the Commission’s earlier proposal for text on the transition/implementation period, and reflects also para 9 of the joint report. The UK government has not objected to it in in principle in its response to the Commission proposals. This proposal needs to be read alongside Article 2(a), which defines “Union law” for the purposes of the agreement; Article 5 clarifies this issue further.

Article 4(5) reflects part of para 38 of the joint report, which states that, as regards citizens’ rights, “In the context of the application or interpretation of those rights, UK courts shall therefore have due regard to relevant decisions of the CJEU after the specified date.” However, the Commission’s proposal extends the “due regard” obligation to the entire text of the withdrawal agreement, not just citizens’ rights. It also applies the rule to UK administrative authorities. There is no clarity as to what “relevant case law” may mean here. This para is linked to Article 155, which gives the UK rights of intervention in CJEU cases, but with narrower scope than the wording of Article 4(5).  

Note that Article 12 of the Protocol on Ireland applies some provisions of Article 4 to that Protocol, but has different rules for others.

Article 5

References to Union law

1. With the exception of Parts Four and Five, unless otherwise provided in this Agreement all references in this Agreement to Union law shall be understood as references to Union law as applicable on the last day of the transition period, including as amended or replaced.

2. Where in this Agreement reference is made to Union acts or provisions thereof, such reference shall, where relevant, be understood to include a reference to Union acts or provisions thereof that, although repealed by the act referred to, continue to apply in accordance with that act.

3. For the purposes of this Agreement, references to provisions of Union law made applicable by this Agreement shall be understood to include references to the relevant Union acts supplementing or implementing those provisions.

Background: This provision is an amended version of an Article the Commission proposed in its suggestion for Articles on the transition/implementation period, which read:Where a provision of Union law is amended, supplemented or replaced during the transition period, the reference to this provision of Union law is to be read as referring to the amended, supplemented or successor provision, provided that the change takes effect before the end of the transition period.”

Comments: Notice that “take effect” has been replaced by “as applicable”; but this is still unclear what this means by comparison to the definition of EU legislative acts in Article 288 TFEU. Also the limitation to acts which were amended or replaced in the earlier version has been replaced by a reference to EU law more broadly. I raised both these points in my comments on the earlier draft.

The underlying point here is whether the UK has to comply with EU legal acts whose deadline for implementation falls after the end of the transition/implementation period. There seems little point requiring it to do so, but this raises the awkward question of extending that period. I suggest an amendment to read: “…including as amended or replaced, to the extent that Member States must implement that Union law by that date.

Effectively Article 5 supplements the definition of “Union law” in article 2(a), and the two provisions should be read together. It is also very relevant to the interpretation rules in Article 4. The exception in Article 5(1) for Parts Four and Five of the agreement refers to the transition/implementation period and the financial settlements rules; the exception “unless otherwise provided in this Agreement” refers to changes such as the amendments to social security rules, referred to in Part Two on citizens’ rights, and the Protocol on Ireland, Article 12(3) of which has a different rule than Article 5(1) – although Article 12(1) of the Protocol applies Article 5(2) and (3) to that Protocol.

UK government position: The UK government is particularly concerned about being bound by EU legislation adopted during the transition period without its involvement. The government’s approach in its proposed definitions clause is simpler and clearer. The UK also wants a “good faith” clause to deal with new EU legislation it disagrees with, but has not publicly proposed a text for this.

As regards citizens’ rights, the following provisions of Union law are referred to: Article 2(2), Directive 2004/38 (Articles 8(a) and 9(1)(e)); Articles 45 and 49 TFEU (Article 8(b)); Article 2(9), Regulation 2201/2003 (Article 8(e)); Articles 12, 13, 16(2), 17 and 18, Directive 2004/38 (Article 9(1)(f)); Article 3(2), Directive 2004/38 (Article 9(2) and (3)); Article 18 TFEU (Article 11); Articles 21, 45 or 49 TFEU and in Article 6(1), Article 7(1)(a), (b) or (c), Article 7(3), Article 14, Article 16(1) or Article 17(1) of Directive 2004/38/EC (Article 12(1)); Article 21 TFEU and in Article 6(1), Article 7(1)(d), Article 12(1) or (3), Article 13(1), Article 14, Article 16(1) or Article 17(3) and (4) of Directive 2004/38/EC (Article 12(2)); Articles 4(1) and 5 (1), Directive 2004/38/EC (Article 13(1)); Articles 16, 17 and 18, Directive 2004/38/EC (Article 14(1)); Articles 16(3) and 21, Directive 2004/38/EC (Article 14(2)); Article 7, Directive 2004/38/EC (Article 15); Articles 2(2)(c) or (d), 3(2), 7(1)(a), (b) and (c) and (2), 8(3), (4) and (5), 10(2), 19, 20 and 27(3), Directive 2004/38/EC (Article 17); Chapter VI and Articles 31 and 35, Directive 2004/38/EC (Article 18); Article 15 and Chapter VI of Directive 2004/38/EC (Article 19); Article 23 of Directive 2004/38/EC (Article 20); Article 24 of Directive 2004/38/EC (Article 21(1)); Articles 6 and 14(4)(b) of Directive 2004/38/EC (Article 21(2)); Article 45 TFEU and Regulation 492/2011 (Article 22); Article 49 TFEU (Article 23(1)); Directives 2005/36, 98/5, 2006/43 and 74/556 (Articles 25 and 26); Regulations 1231/2010 and 859/2003 (Article 28); Regulations 883/2004 and 987/2009 (Articles 28, 29 and 31);

Article 6

References to Member States

For the purposes of this Agreement, all references to Member States and competent authorities of Member States in provisions of Union law made applicable by this Agreement shall be read as including the United Kingdom and its competent authorities, except as regards: 

(a) the nomination, appointment or election of members of the institutions, bodies, offices and agencies of the Union, as well as the participation in the decision-making and the attendance in the meetings of the institutions;

(b)  the participation in the decision-making and governance of the bodies, offices and agencies of the Union;

(c)  the attendance in the meetings of the committees referred to in Article 3(2) of Regulation (EU) No 182/2011 of the European Parliament and of the Council, of Commission expert groups or of other similar entities, or in the meetings of expert groups or similar entities of bodies, offices and agencies of the Union, unless otherwise provided in this Agreement. 

Background: This is effectively the same text which the Commission proposed as part of its suggested Articles on the transition/implementation period. The UK accepts it in principle.

This text reflects the second sentence of para 13 of the EU27 negotiation directives on the transition/implementation period, which state that “the Union acquis should apply to and in the United Kingdom as if it were a Member State”, as well as the final sentence of para 18 and the first sentence of para 19 on the exclusions from a UK role in the institutions.

Comment: While the definition of “Member States” in Article 2(b) excludes the UK, Article 6 then qualifies that significantly by effectively making the UK a Member State for the purposes of the substantive law of the EU, but not the institutional law of the EU, for the purposes of the withdrawal agreement.

Article 123(1) applies Article 6 during the transition/implementation period, as a derogation from the rule in Article 122 that EU law will still apply to the UK during that period. Article 123(5) then sets out a derogation from Article 6, giving the UK limited access to decision-making until the end of that period. There is also a derogation from Article 6 in Articles 129(3)(d) and 131(3), as regards some financial settlement issues; while Article 12 of the Protocol on Ireland applies some provisions of Article 6 to that Protocol, but has different rules for others.

While the Treaties only refer to Member States as having a full decision-making role within EU institutions, there is nothing to rule out consultation with non-Member States. Indeed, the Schengen association agreement with Norway and Iceland gives them consultation rights at ministerial level. The notion that the UK is expected to apply new EU law (see Article 5) without even being informally consulted on the relevant proposals therefore has a vindictive tinge to it.

Article 7

Access to network and information systems and data bases

At the end of the transition period, the United Kingdom shall cease to be entitled to access any network, any information system, and any database established on the basis of Union law. The United Kingdom shall take appropriate measures to ensure that it does not access a network, information system, or database which it is no longer entitled to access.

Comment: This ends the UK’s access to databases and information systems – particularly relevant to justice and home affairs issues – at the end of the transition/implementation period. It would be possible to continue access on the basis of a future security treaty, as discussed here.

There are derogations from this Article in: Article 30(2) on social security; Article 49, where “strictly necessary” to comply with the separation provisions on VAT and excise tax in Articles 47-49; and Article 92(2), winding up UK involvement with the EU greenhouse gas trading system. Implicitly Article 7 is not applicable to the Protocol on Ireland, since Article 12 of that Protocol does not apply it. 



PART TWO

CITIZENS’ RIGHTS

TITLE I

GENERAL PROVISIONS

Article 8

Definitions

For the purposes of this Part, and without prejudice to Title III, the following definitions shall apply:

(a) "family members" means family members of Union citizens or United Kingdom nationals as defined in point (2) of Article 2 of Directive 2004/38/EC of the European Parliament and of the Council, irrespective of their nationality and who fall within the personal scope provided for in Article 9 of this Agreement; 

(b) "frontier workers" means Union citizens or United Kingdom nationals who pursue an economic activity in accordance with Article 45 or 49 TFEU in one or more States in which they do not reside;

(c) "host State" means:

(i)  in respect of Union citizens, the United Kingdom if they exercised there their right of residence in accordance with Union law before the end of the transition period and continue to reside there thereafter; 

(ii)  in respect of United Kingdom nationals, the Member State in which they exercised their right of residence in accordance with Union law before the end of the transition period and continue to reside there thereafter;

(d) "State of work" means:

(i) in respect of Union citizens, the United Kingdom, if they pursued an economic activity as frontier workers there before the end of the transition period and continue to do so thereafter;

(ii) in respect of United Kingdom nationals, a Member State where they pursued an economic activity as frontier workers before the end of the transition period and continue to do so thereafter;

(e) "rights of custody" means rights of custody within the meaning of point (9) of Article 2 of Council Regulation (EC) No 2201/2003 and shall cover rights of custody acquired by judgment, by operation of law or by an agreement having legal effect.

Background: This reflects para 10 of the joint report. I have added a hyperlink, in place of a footnote, to the EU citizens’ Directive and the “Brussels II” Regulation on family law respectively. 

Comments: The reference to special rules in Ttile III reflects Article 28(2) of the agreement, which includes a derogation from Article 8(a) since EU social security law has its own definition of family members.

To interpret Article 8(a) of the agreement, note that Article 2(2) of the citizens’ Directive, referred to here, defines core family members as follows:

(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b).

The interpretation of the EU law definition of “family member” must follow CJEU case law: see Articles 4 and 5. The relevant case law includes the pending Coman case on whether same-sex spouses are covered by the definition of “spouse”, and the case law on the definition of “dependence” (see discussion of the most recent case law here).

Two important issues arise from Article 8(a). First of all, the CJEU recently ruled in Lounes (discussed here) that dual citizens of two Member States can claim rights in one of those Member States if they have moved between them.

Secondly, in a line of case law starting in Zambrano (discussed here), the EU ruled that where children live in the Member State of their nationality but have a non-EU parent with caring obligations for the child, the non-EU parent cannot be removed (except on public security etc grounds) as it would infringe the child’s EU citizenship rights.

In order to continue this case law in force, I suggest an amendment as follows:

(a) "family members" means family members of Union citizens or United Kingdom nationals as defined in point (2) of Article 2 of Directive 2004/38/EC of the European Parliament and of the Council, or whose status derives from Articles 20 or 21 TFEU…

(Note that a third line of case law – covering family members of EU27 or UK citizens who return to their state of nationality – would be protected by an amendment to Articles 8(c) and 9 which I propose below. A fourth line of case law – on the children of workers and their carers – is addressed by Article 22 of the proposed Agreement).

The definitions of “frontier worker” and “rights of custody” in Article 8(b) and (e) are also EU law concepts, where the CJEU case law must be applied in accordance with Articles 4 and 5. As for the latter rule, Article 2(9) of the Brussels IIa Regulation states that “the term "rights of custody" shall include rights and duties relating to the care of the person of a child, and in particular the right to determine the child's place of residence.”

Note that these definitions are only applicable to the citizens’ rights rules in part Two; other definitions applicable to the entire agreement (including the citizens’ rights Part) appear in Article 2. The proviso that the definitions are “without prejudice” to Title III on social security (Articles 28-31) presumably refers to the derogation from Article 8(a) in Article 28(2), which instead applies the different definition of “family member” in EU law on social security coordination to social security issues.

In Article 8(c), the words “and continue to reside there thereafter” – not reflected in the joint report – limit the scope of the agreement to a single state, so that it does not cover EU27 or UK citizens who return to their state of nationality (relevant to the position of their family members or recognition of qualifications: on family members see the Surinder Singh and Eind case law, discussed here), or UK citizens who move to another member State (see Article 32). This would significantly and unjustifiably impede the future lives of many people, so I suggest an amendment to delete the words “and continue to reside there thereafter” from Article 8(c).

An important issue dividing the EU27 and UK is the exact status of those who move during the transition/implementation period. The EU27 proposal would treat them just the same as those who were there beforehand, but the UK proposal would treat them differently. In the UK’s view, there will still be free movement in both directions, to be set out in the withdrawal agreement (point 4). There will be a registration system in the UK, in accordance with Article 8 of the citizens’ Directive (point 5: for further discussion of that point, see here). This will not apply to Irish citizens, since the agreement will not apply to them (point 6: this statement is false, since Ireland is listed as one of the “Member States” in Article 2(b), and Irish citizens are therefore covered by Article 2(c) as EU citizens). Such persons can stay after the end of the transition/implementation period and still obtain permanent status in future, but will be subject to the family reunion rules applicable to UK citizens (point 10: contradicting the proposal for Article 9). It will be up to EU27 Member States to determine what happens to UK citizens who arrive during this period (point 11), again contradicting the proposal, which would give them a route to permanent residence in future. 

Article 9

Personal scope

1.  Without prejudice to Title III, this Part shall apply to the following persons: 

(a)  Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter; 

(b)  United Kingdom nationals who exercised their right to reside in a Member State in accordance with Union law before the end of the transition period and continue to reside there thereafter; 

(c)  Union citizens who exercised their right as frontier workers in the United Kingdom in accordance with Union law before the end of the transition period and continue to do so thereafter; 

(d)  United Kingdom nationals who exercised their right as frontier workers in one or more Member States in accordance with Union law before the end of the transition period and continue to do so thereafter; 

(e)  family members of the persons referred to in points (a) to (d), where they fulfil one of the following conditions:

(i) they resided in the host State in accordance with Union law before the end of the transition period and continue to reside there thereafter;

(ii) they resided outside the host State before the end of the transition period, provided that they fulfil the conditions set out in point (2) of Article 2 of Directive 2004/38/EC at the time they seek residence under this Part in order to join the person referred to in points (a) to (d) of this paragraph;*

(iii) they are born to, or legally adopted by, persons referred to in points (a) to (d) after the end of the transition period, whether inside or outside the host State, where they fulfil the conditions set out in point (2)(c) of Article 2 of Directive 2004/38/EC at the time they seek residence under this Part in order to join the person referred to in points (a) to (d) of this paragraph and fulfil one of the following conditions:

 - both parents are persons referred to in points (a) to (d);

 - one parent is a person referred to in points (a) to (d) and the other is a national of the host State; or

 - one parent is a person referred to in points (a) to (d) and has sole or joint rights of custody of the child, in accordance with the applicable rules of family law of a Member State or of the United Kingdom, including applicable rules of private international law under which rights of custody established under the law of a third state are recognised in the Member State or in the United Kingdom, in particular as regards the best interests of the child and without prejudice to the normal operation of such applicable rules of private international law;

(f)  family members who resided in the host State in accordance with Articles 12 and 13, Article 16(2) and Articles 17 and 18 of Directive 2004/38/EC before the end of the transition period and continue to reside there thereafter.

2. Without prejudice to any right to residence which the persons concerned may have in their own right, the host State shall, in accordance with its national legislation, facilitate entry and residence for persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who resided in the host State in accordance with Union law before the end of the transition period and continue to reside there thereafter.

3. Without prejudice to any right to residence which the persons concerned may have in their own right, the host State shall, in accordance with its national legislation and in accordance with point (b) of Article 3(2) of Directive 2004/38/EC, facilitate entry and residence for the partner with whom the person referred to in points (a) to (d) has a durable relationship, duly attested, provided that the relationship was durable before the end of the transition period and continues at the time the partner seeks residence under this Part.

4. In the cases referred to in paragraphs 2 and 3, the host State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to such persons.

Background: This Article reflects paras 12 and 13 of the joint report.

Comment: The reference to Title III as a lex specialis can be explained by the different personal scope of social security law, as set out in Article 28(2) of the agreement.

Article 9(1) reflects, like Article 8(c), a limitation on the scope of the agreement by means of the words “and continue to reside there thereafter”. For the reasons discussed already, I suggest an amendment to delete the words “and continue to reside there thereafter” from Article 9. While the UK government reportedly intends to protect family members of UK citizens covered by the Surinder Singh case law in national law, that does not adequately protect their rights, since they will be subject to the whims of a government devoted to a low net migration target and the creation of a “hostile environment” to that end.

The most controversial issue here is Article 9(1)(e), regarding core family members. Point (i) covers those already resident before the end of the transition/implementation period on the basis of EU law, which as broadly defined by Article 2, covers also EU immigration and asylum law. Point (ii) covers those who resided outside the host State before that date, who can still seek entry on the basis of Article 2(2) of the Directive. This contradicts the agreement between the UK and the EU27 in the joint agreement, since the Commission seeks to keep the right of family life intact for all the persons concerned. Point (iii) covers children born to or adopted by EU27 or UK citizens or their family members after that date, regardless of where they were born, as long as they are under 21 or dependent as defined by EU law. This includes cases where one parent is an EU27/UK citizen and the other is a UK national, and where one parent is covered by the Agreement and has sole or joint rights of custody (which was defined in Article 8). 

Note also that Article 9(1)(f) protects family members who were present as permanent residents or pursuant to the family breakdown rules before the end of transition/implementation period. Moreover, Article 22 covers a group of children and carers who will in some cases fall outside the scope of this Article.  

Article 9(2), (3) and (4) set out rules for extended family members, as defined by reference to Article 3(2) of the citizens Directive. The persons concerned are: (a) “any other family members, irrespective of their nationality, not falling under the definition” in Article 2(2) who, “in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen”; and (b) “the partner with whom the Union citizen has a durable relationship, duly attested”.

It is sometimes falsely suggested that the list of extended family members in EU free movement law is unlimited, and that there is an obligation to admit them. Neither claim is true, as the obligation to “facilitate entry and residence” is not a right of admission as such, as confirmed by the CJEU in its judgment in Rahman. (An Advocate-General’s opinion in the second case on Article 3(2), Banger, is due shortly).

In any event, the agreement will curtail the limited rights of extended family members significantly. Article 9(2) only continues the “facilitation” obligation if the family members concerned “resided in the host State in accordance with Union law before the end of the transition period and continue to reside there thereafter”. (Note that “Union law”, as defined broadly in Article 2 of the agreement, could include EU law on immigration or asylum for non-EU citizens). Article 9(3) allows slightly more protection for duly attested partners, but the facilitation obligation for them still applies only where “the relationship was durable before the end of the transition period and continues at the time the partner seeks residence under this Part.” If the couple concerned chooses to marry (if that option is possible) then they would fall within the scope of Article 9(1).

Article 10

Continuity of residence

Continuity of residence for the purposes of Articles 8 and 9 shall not be affected by absences as referred to in Article 14(2) and (3).

Background: This Article partly does not specifically reflect any para of the joint report.

Comment: This applies the usual rules on continuity of residence, which are usually applied to acquisition of permanent residence as in Article 14 of the agreement, to any issues of continuity of residence which may arise from Articles 8 or 9.

Article 11

Non-discrimination

Within the scope of this Agreement and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality within the meaning of the first subparagraph of Article 18 TFEU shall be prohibited in the host State and the State of work in respect of the persons referred to in Article 9 of this Agreement.

Background: This Article partly reflects para 31 of the joint report.

Comment: This Article copies the wording of Article 18 TFEU, first subparagraph, and refers to it also, so the relevant CJEU case law will apply. Note that other non-discrimination clauses appear in Articles 21 and 22 of this agreement.

TITLE II

RIGHTS AND OBLIGATIONS

CHAPTER 1

Rights related to residence, residence documents

Article 12

Residence rights

1. Union citizens and United Kingdom nationals shall have the right to reside in the host State under the limitations and conditions as set out in Articles 21, 45 or 49 TFEU and in Article 6(1), Article 7(1)(a), (b) or (c), Article 7(3), Article 14, Article 16(1) or Article 17(1) of Directive 2004/38/EC. 

2. Family members who are either Union citizens or United Kingdom nationals shall have the right to reside in the host State as set out in Article 21 TFEU and in Article 6(1), Article 7(1)(d), Article 12(1) or (3), Article 13(1), Article 14, Article 16(1) or Article 17(3) and (4) of Directive 2004/38/EC.

3. Family members who are neither Union citizens nor United Kingdom nationals shall have the right to reside in the host State as set out in Article 6(2), Article 7(2), Article 12(2) or (3), Article 13(2), Article 14, Article 16(2), Article 17(3) or (4) or Article 18 of Directive 2004/38/EC.

4.  The host State may not impose any limitations and conditions other than those provided for in this Title on the persons referred to in paragraphs 1, 2 and 3 for obtaining, retaining or losing residence rights. There shall be no discretion in applying the limitations and conditions, other than in favour of the person concerned.

Background: This reflects paras 20 and 21 of the joint report.

Comments: This Article sets out the core right to stay on the territory for EU27/UK citizens and their family members. It is not absolute, since it is subject to the process of confirming status after Brexit (Article 17) and removal in the event of criminality (Article 18); and the persons concerned must meet the conditions for residence in the first place. These conditions are generous, but not unlimited; in particular there is no right to stay solely on the basis of receiving social benefits from the outset. 

More precisely, Article 12(1) refers to the EU law rules on citizenship and free movement (Article 21 TFEU), free movement of workers (Article 45 TFEU), free movement of self-employed people (Article 49 TFEU), initial stays (Article 6(1), citizens’ Directive), stays after three months (Article 7(1)(a) to (c), citizens’ Directive), stays as a former worker (Article 7(3)); stays looking for work (Article 14, citizens’ Directive), and permanent residence (Article 16(1) or Article 17(1), citizens’ Directive). On former workers, note that the EU law applies to those who take a break for maternity, even if they switch employers at that time under certain conditions (see discussion here); it also covers the self-employed (see the Pusa judgment), but not those who become unemployed shortly after arriving and run out of time to find replacement work (see discussion here). While non-economic migrants need “sufficient resources” to stay, the case law makes clear that this can be provided by others, for instance a spouse or partner.

Article 12(2) of the agreement sets out the corresponding rules for family members who are EU or UK citizens, while Article 12(3) of the agreement sets out the corresponding rules for family members who are not EU or UK citizens. Note that Articles 12 and Article 13 of the citizens’ Directive, referred to here, concern stays after family breakdown, while Article 18 grants permanent residence rights to those who stayed on the basis of those provisions. (On the most recent CJEU judgment on the family breakdown rules, see the discussion here).

All these references to EU law are subject to the interpretation rules in Articles 4 and 5. Article 12(4) removes any state discretion over “obtaining, maintaining or losing residence rights” besides the possibilities set out in this Title (Articles 12-27 of the Agreement, not all of which deal with residence rights).    

Article 13

Right of exit and of entry

1. Union citizens, United Kingdom nationals, and their respective family members, shall have the right to leave the host State and the right to enter it with a valid passport or national identity card for Union citizens and United Kingdom nationals, and a valid passport for their respective family members who are not Union citizens or United Kingdom nationals as set out in Articles 4(1) and 5(1) of Directive 2004/38/EC. No exit or entry visa or equivalent formality shall be required for holders of a valid residence document issued in accordance with Article 17 or 24 of this Agreement.

2.  Where the host State requires family members who join the Union citizen or the United Kingdom national after the end of the transition period to have an entry visa, the host State shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.

Background: There is no parallel provision in the joint report.

Comments: The first sentence of Article 13(1) matches – and cross-refers to – Article 4(1) and the first sub-paragraph of 5(1) of the citizens’ Directive. However, the second sentence of Article 13(1) is not the same as Article 4(2) or the second sub-paragraph of Article 5(1) of that Directive, since it limits the exemption from an entry visa or similar document only for those who hold a new residence document on the basis of Article 17 (the “settled status” clause) or Article 24 (document for frontier workers) of the agreement.

Article 13(2) can be compared to Article 5(2) of the Directive, which also provides for exemption of the visa requirement if the person has a residence card, and covers short-term visits (see the 2014 McCarthy judgment, discussed here).

There is no equivalent to Article 4(3) and (4) of the Directive, concerning the issue of passports or identity cards to nationals. Nor is there any equivalent to: Article 5(3), banning entry or exit stamps in passports of those non-EU family members holding a residence card; Article 5(4), giving people the opportunity to obtain travel documents or visas; or Article 5(5), an option to require reporting presence, which can be made subject to proportionate and non-discriminatory sanctions.    



Article 14

Right of permanent residence

1.  Union citizens, United Kingdom nationals, and their respective family members, who have resided legally in accordance with Union law for a continuous period of five years in the host State, or for the duration specified in Article 17 of Directive 2004/38/EC, shall have the right of permanent residence in the host State as set out in Articles 16, 17 and 18 of Directive 2004/38/EC. Periods of legal residence or work before and after the end of the transition period shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.

2.  Continuity of residence for the purposes of acquisition of the right of permanent residence shall be determined in accordance with Article 16(3) and Article 21 of Directive 2004/38/EC.

3.  Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding five consecutive years.

Background: This Article reflects paras 21 and 25 of the joint report.

Comment: Article 14(1) incorporates the main rule on acquiring permanent residence in Article 16 of the citizens’ Directive, as well as the subsidiary rules in Articles 17 and 18 of that law. The second sentence confirms that times of employment both before and after the end of the transition/implementation period will count.

An important point here is that Article 14(1) refers to time present on the basis of EU law, as defined broadly by Article 2(a), not only to time spent on the basis of the Directive. This is broader than the case law of the ECJ, which says that only time spent on the basis of the Directive counts (see the Alarape and Tijani judgment). (There are other forms of legal stay under EU law: see Article 22 of this agreement, for instance. And “EU law” could also, for non-EU family members, refer to residence on the basis of EU immigration or asylum law applicable to non-EU citizens).  However, Article 15 of this Agreement, confusingly, refers only to time spent on the basis of the Directive, reflecting the wording of the case law again.

Note that Article 16(1) of the Directive goes on to say that: “This right shall not be subject to the conditions provided for in Chapter III”, ie the rules on the initial five-year stay. This is implicitIy incorporated into Article 14(1) of the agreement by the cross-reference to Article 16. Indeed the cross-reference to EU law incorporates all the relevant case law, except arguably the Alarape and Tijani case due to the different wording.

The cross-reference in Article 14(1) of the agreement also includes Article 16(2) of the Directive, which grants permanent residence to non-EU family members who “have legally resided with the Union citizen in the host Member State for a continuous period of five years”; Article 17 of the Directive, which grants permanent residence after a shorter period in the event of retirement, death or accident at work; and Article 18 of the Directive, which gives permanent residence to non-EU family members in the event of family breakdown referred to in Articles 12 and 13 of the Directive (see Article 12 of this agreement).

Article 14(2) of the agreement, concerning continuity of residence, incorporates Article 16(3) of the Directive, which provides:

Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

It also incorporates Article 21 of the Directive, which provides:

…continuity of residence may be attested by any means of proof in use in the host Member State.  Continuity of residence is broken by any expulsion decision duly enforced against the person concerned.

Article 14(3) of the agreement, on loss of the status, is identical to Article 16(4) of the citizens’ Directive, except that the relevant period is five years, not two as in the Directive. Nevertheless, the persons concerned still have lesser protection overall, since under the Directive they could always exercise free movement rights from scratch if they met the criteria in Article 7 of the Directive. Post-Brexit they cannot.

Article 15

Accumulation of periods

Union citizens, United Kingdom nationals, and their respective family members, who before the end of the transition period resided legally in the host State under the conditions of Article 7 of Directive 2004/38/EC for a period of less than five years, shall have the right to acquire the right of permanent residence set out in Article 14 of this Agreement once they have completed the necessary periods of residence. Periods of legal residence or work before and after the end of the transition period shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.

Background: This Article reflects para 21 of the joint report.

Comment: It is hard to see how to distinguish this Article from Article 14(1) of this agreement, which it differs from only by referring explicitly to residence on the basis of the citizens’ Directive, rather than EU law more generally. While Article 15 only covers those who do not yet qualify for permanent residence at the end of the transition/implementation period, Article 14(1) must cover them too, since it also refers to periods of residence after that date.

Article 16

Status and changes

1.  The right of Union citizens, United Kingdom nationals, and their respective family members to rely directly on this Title shall not be affected when they change status, for example from student to worker, from worker to being economically inactive, or from being economically inactive to student.

2.  The rights provided for in this Title for the family members, who are dependent on Union citizens or United Kingdom nationals before the end of the transition period, shall be maintained even after they cease to be dependent as a result of taking up employment or self-employment in the host State.

Background: This Article reflects para 20 of the joint report.

Comment: The right of EU citizens or their family members to change the basis of their stay (provided that they still comply with the criteria for residence under EU law) is not explicitly referred to in the citizens’ Directive, but has always been protected in practice under the CJEU case law.

Article 17

Issuance of residence documents

1.  The host State may require Union citizens or United Kingdom nationals and their respective family members, residing in its territory in accordance with the conditions set out in this Title, to apply for a new residence document as a condition for the enjoyment of the rights under this Title, subject to the following conditions:

Background: this is the “settled status” clause. It reflects para 16 of the joint report. Note that it would be optional for the UK or EU27 Member State to apply it. Obviously the UK at least intends to do so.

Comment: Note that holding the document as a condition enjoying rights diverges from Article 25 of the citizens’ directive, which states that holding forms cannot be a precondition for having any form of status under the Directive. The pledges of “no less favourable status” and “automatic indefinite leave to remain” for EU27 citizens in the UK have therefore been breached.

(a) the purpose of the application procedure shall be to verify whether the applicant falls within the personal scope provided for in Article 9 and is entitled to the residence rights set out in this Title. Where that is the case, the applicant shall have a right to be granted the residence document;

Comment: There is no overall discretion to refuse the document if the applicant can prove their entitlement to status, as Article 12(4) states.

(b) the deadline for submitting the residence document application shall not be less than two years from the end of the transition period or from the date of arrival in the host State, whichever is later; a certificate of application for the residence document shall be issued immediately;

Comment: This resembles Article 8(2) of the citizens’ Directive, which has a three-month minimum deadline. It goes on to state that the certificate of application must state “the name and address of the person registering and the date of the registration” and that “[f]ailure to comply with the registration requirement may render the person concerned liable to proportionate and non-discriminatory sanctions”.

(c) the deadline for submitting the residence document application referred to in point (b) shall be extended automatically by one year where the Union or the United Kingdom has notified the United Kingdom or the Union, respectively, that technical problems prevent the host State either from registering the application or from issuing the certificate of application referred to in point (b). The host State shall publish that notification and shall provide appropriate public information for the citizens or nationals concerned in good time;

Comment: This is new compared to the citizens’ Directive. A one-year extension may prove to be useful in practice.

(d) where the deadline for submitting the residence document application referred to in point (b) is not respected by the persons concerned, the competent authorities shall assess all the circumstances and reasons for not respecting the deadline and allow those persons to submit an application within a reasonable further period of time, unless such an application is manifestly abusive;

Comment: The “try again” clause is new compared to the citizens’ Directive. It could be useful in practice but is not clearly drafted as a right of the person concerned. Presumably point (r) grants a right of redress in the event of refusal here.

(e) the host State shall ensure that administrative procedures for applications for the residence document are smooth, transparent and simple and that any unnecessary administrative burdens are avoided;

(f) application forms shall be short, simple, user friendly and adjusted to the context of this Agreement; applications made by families at the same time shall be considered together;

(g) the residence document shall be issued free of charge or for a charge not exceeding that imposed on citizens or nationals for the issuing of similar documents;

Comment: The cost clause resembles Article 25(2) of the citizens’ Directive. Note the exemption in (h) however.

(h) persons who, before the end of the transition period, are holders of a valid permanent residence document issued under Article 19 or 20 of Directive 2004/38/EC or a valid domestic immigration document conferring a permanent right to reside in the host State, shall have the right to exchange that document within two years of the end of the transition period for a new residence document after a verification of their identity, a criminality and security check in accordance with point (p) of this paragraph and confirmation of ongoing residence; such a document shall be free of charge;

Comment: Those who already hold documentation of permanent residence are required to apply again. There is an exemption from costs and there are limited grounds to refuse; but this remains an unjustifiable imposition and also an extra cost for the UK. I suggest an amendment as follows (two alternatives; the first is preferable):

(h) persons who, before the end of the transition period, are holders of a valid permanent residence document issued under Article 19 or 20 of Directive 2004/38/EC or a valid domestic immigration document conferring a permanent right to reside in the host State, shall [be exempt from the provisions of this Article] [shall automatically be issued with a new residence document, upon application, free of charge]

 (i) the identity of the applicants shall be verified through the presentation of a valid passport or national identity card for Union citizens and United Kingdom nationals, and a valid passport for their respective family members who are not Union citizens or United Kingdom nationals; the acceptance of such identity documents shall not be made conditional upon any criteria other than that of validity. Where the identity document is retained by the competent authorities of the host State while the application is pending, the host State shall return that document upon application without delay and before the decision on the application is taken;

Comment: this partly reflects the wording of Article 8(3) of the citizens Directive. Note the requirement to return passports or identity cards.

(j) supporting documents other than identity documents, such as civil status documents, may be submitted in copy;

(k) the host State may only require Union citizens and United Kingdom nationals to present, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in Article 8(3) of Directive 2004/38/EC:

(i) where they reside in the host State in accordance with Article 7(1)(a) of Directive 2004/38/EC as workers or self-employed, a confirmation of engagement from the employer or a certificate of employment, or proof that they are self-employed;

(ii) where they reside in the host State in accordance with Article 7(1)(b) of Directive 2004/38/EC as economically inactive persons, evidence that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host State during their period of residence and have comprehensive sickness insurance cover in the host State;

(iii) where they reside in the host State in accordance with Article 7(1)(c) of Directive 2004/38/EC as students, proof of enrolment at an accredited establishment and of comprehensive sickness insurance cover and a declaration or equivalent, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host State during their period of residence. The host State may not require this declaration to refer to any specific amount of resources.

With regard to the condition of sufficient resources, Article 8(4) of Directive 2004/38/EC shall apply;

Comment: This copies – and cross-refers to – the criteria and process in the citizens’ Directive. The underlying problem here is the UK’s insistence that NHS cover does not count as “comprehensive sickness insurance”. While the UK has promised to waive this requirement, this is in principle not an enforceable right and there is a risk that the Agreement could be interpreted as meaning that the persons concerned are not covered by it at all.  

Suggested amendment: “…of comprehensive sickness insurance cover, which shall be satisfied for European Union citizens in the United Kingdom by proof of registration with the National Health Service…

(l) the host State may only require family members who fall under Articles 9(1)(e)(i) or 9(2) of this Agreement and who reside in the host State in accordance with Article 7(1)(d) or 7(2) of Directive 2004/38/EC to present, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in Articles 8(5) or 10(2) of Directive 2004/38/EC:

(i) a document attesting to the existence of a family relationship or of a registered partnership;

(ii) the registration certificate or, in the absence of a registration system, any other proof of residence in the host State of the Union citizen or of the United Kingdom nationals with whom they reside in the host State;

(iii) for direct descendants who are under the age of 21 or are dependants and dependent direct relatives in the ascending line, and for those of the spouse or registered partner, documentary evidence that the conditions set out in Article 2(2)(c) or (d) of Directive 2004/38/EC are fulfilled;

(iv) for the persons referred to in Article 9(2) of this Agreement, a document issued by the relevant authority in the host State in accordance with Article 3(2) of Directive 2004/38/EC.

With regard to the condition of sufficient resources as concerns family members who are themselves Union citizens or United Kingdom nationals, Article 8(4) of Directive 2004/38/EC shall apply;

Comment: This copies – and cross-refers to – the criteria and process in the citizens’ Directive.

(m) the host State may only require family members who fall under Articles 9(1)(e)(ii) or 9(3) of this Agreement, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in Articles 8(5) and 10(2) of Directive 2004/38/EC:

(i) a document attesting to the existence of a family relationship or of a registered partnership;

(ii) the registration certificate or, in the absence of a registration system, any other proof of residence in the host State of the Union citizen or of the United Kingdom nationals whom they are joining in the host State;

(iii) for spouses or registered partners, a document attesting to the existence of a family relationship or of a registered partnership before the end of the transition period;

(iv) for direct descendants who are under the age of 21 or are dependants and dependent direct relatives in the ascending line and those of the spouse or registered partner, documentary evidence that they were related to Union citizens or United Kingdom nationals before the end of the transition period and fulfil the conditions set out in Article 2(2)(c) or (d) of Directive 2004/38/EC relating to age or dependence;

(v) for the persons referred to in Article 9(3) of this Agreement, proof that a durable relationship with Union citizens or United Kingdom nationals existed before the end of the transition period and continues to exist thereafter;

Comment: This copies – and cross-refers to – the criteria and process in the citizens’ Directive.

(n) for cases other than those set out in points (k), (l) and (m), the host State shall not require applicants to present supporting documents that go beyond what is strictly necessary and proportionate to provide evidence that the conditions relating to the right of residence under this Title have been fulfilled;

Comment: This presumably refers to those covered by Article 22 – children of workers and their carers.

(o) the competent authorities of the host State shall help the applicants prove their eligibility and avoid any errors or omissions in the application; they shall give the applicants the opportunity to furnish supplementary evidence and to correct any deficiencies, errors or omission;

Comment: This would be a useful procedural protection in practice.

(p) criminality and security checks may be carried out systematically on applicants with the exclusive aim of verifying whether restrictions set out in Article 18 of this Agreement may be applicable. For that purpose, applicants may be required to declare past criminal convictions which appear in their criminal record in accordance with the law of the State of conviction at the time of the application. The host State may, should it consider this essential, apply the procedure set out in Article 27(3) of Directive 2004/38/EC on enquiries to other States regarding previous criminal records;

Comment: This diverges from Article 27(3) of the citizens’ Directive, which states that such checks will not be made “as a matter of routine”.

(q) the new residence document shall include a statement that it has been issued in accordance with this Agreement;

(r) the applicant shall have access to judicial and, where appropriate, administrative redress procedures in the host State against any decision refusing to grant the residence document. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed decision is based. They shall ensure that the decision is proportionate.

Comment: the second sentence reflects Article 31(3) of the citizens’ Directive, although there is no cross-reference to it, and the reference to the high threshold for expulsion in Article 28 of that Directive has been dropped.

2.  During the two-year period referred to in point (b) of paragraph 1 of this Article and its possible one-year extension under point (c) of paragraph 1 of this Article, all rights provided for in this Part shall be deemed to apply to Union citizens or United Kingdom nationals and their respective family members, residing in the host State in accordance with the conditions set out in this Title.

Comment: A useful ban on the Home Office “jumping the gun”.

3. Pending a final decision by the competent authorities on any application referred to in paragraph 1, as well as a final judgment handed down in case of judicial redress sought against any rejection of such application by the competent administrative authorities, all rights provided for in this Part shall be deemed to apply to the applicant, including Article 19 on safeguards and right of appeal.

4. Where a host State has chosen not to require Union citizens or United Kingdom nationals, and their respective family members, to apply for the new residence document referred to in paragraph 1 as a condition for legal residence, those Union citizens, United Kingdom nationals and their respective family members eligible for residence rights shall have the right to receive a residence document that includes a statement that it has been issued in accordance with this Agreement.

Article 18

Restrictions of the right of residence

1.  Conduct of Union citizens or United Kingdom nationals or their respective family members, that occurred before the end of the transition period shall be considered in accordance with Chapter VI of Directive 2004/38/EC.

2.  Conduct of Union citizens or United Kingdom nationals, or their respective family members, that occurred after the end of the transition period may constitute grounds for restricting the right of residence by the host State in accordance with national legislation.

3. The host State may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Title in the case of abuse of those rights or fraud as set out in Article 35 of Directive 2004/38/EC. Such measures shall be subject to the procedural safeguards provided for in Article 19 of this Agreement.

4. The host State may remove applicants who submitted fraudulent or abusive applications from its territory under the conditions set out in Directive 2004/38/EC, in particular Articles 31 and 35 thereof, even before a final judgment has been handed down in case of judicial redress sought against any rejection of such an application. 

Background: This Article broadly reflects the second sentence of para 18 of the joint report, as well as paras 26 and 27.

Comment: Due to the cross-reference, the case law on these provisions of the citizens’ Directive will apply. Chapter VI of that law contains substantive rules limiting expulsion on grounds of public policy, public security and public health, particularly in Articles 27-29; there is substantial case law on these rules and on the predecessor law. It will be necessary to establish when conduct took place before the end of the transition/implementation period (Article 18(1)) and when it took place afterward, so national law applies (Article 18(2)).

As for Article 18(3), the case law on Article 35 of the Directive interprets that rule narrowly (see Metock and the 2014 McCarthy judgment, discussed here). The reference to procedural protection in such cases is then undermined by Article 18(4), which refers to expulsion before a final judgment, referring to Article 31 of the Directive. But Article 31 only allows removal from the territory, if the person concerned has applied for an interim order, in a limited number of cases: an expulsion decision based on a prior judicial decision; if there was prior access to judicial review; or where the expulsion is based on “imperative grounds of public security” as defined in the Directive. None of these cases correspond to Article 35 of the Directive.

Possibly the drafting intends to confirm that a person who is being excluded on the basis of Article 35 can have fewer procedural rights only where that person also falls within the scope of the exclusions in Article 31. I suggest an amendment to Article 18(4) to make that more clear:  “The host State may remove applicants who submitted fraudulent or abusive applications from its territory to the extent permitted by Directive 2004/38/EC, in particular Articles 31 and 35 thereof…”

Article 19

Safeguards and right of appeal

The safeguards set out in Article 15 and Chapter VI of Directive 2004/38/EC shall apply in respect of any decision of the host State that restricts residence rights of the persons referred to in Article 9 of this Agreement.

Background: This broadly reflects the first sentence of para 31 of the joint report.

Comment: Due to the cross-reference, the case law on these provisions of the citizens’ Directive will apply. Chapter VI of that law contains rules on notification of decisions (Article 30), stay on the territory (Article 31), entry bans (Article 32) and reconsideration of decisions (Article 33). There is a seeming contradiction with the apparent limit on procedural rights set out in Article 18(4) of this agreement.

Article 15(1) of that Directive extends Articles 30 and 31 also to cases where restrictions on free movement are applied not on grounds of public policy, public security or public health, ie cases where the person might face expulsion due to being reliant upon benefits. Article 15(3) rules out applying an entry ban in such cases, and Article 15(2) states that “[e]xpiry of the identity card or passport on the basis of which the person concerned entered the host Member State and was issued with a registration certificate or residence card shall not constitute a ground for expulsion from the host Member State”.

Article 20

Related rights

In accordance with Article 23 of Directive 2004/38/EC, irrespective of nationality, the family members of a Union citizen or a United Kingdom national who have the right of residence or the right of permanent residence in the host State or the State of work shall be entitled to take up employment or self-employment there.

Background: This does not reflect any specific para in the joint report explicitly.

Comment: This clause essentially copies Article 23 of the citizens’ Directive. Due to the cross-reference, the case law on that Article will apply. This will be an important provision in practice for families where a non-EU citizen spouse or partner earns the sole or higher income.

Article 21

Equal treatment

1. In accordance with Article 24 of Directive 2004/38/EC, subject to the specific provisions provided for in Titles I, II and IV of this Part, all Union citizens or United Kingdom nationals residing on the basis of this Agreement in the territory of the host State shall enjoy equal treatment with the nationals of that State within the scope of this Agreement. The benefit of this right shall be extended to family members of Union citizens or of United Kingdom nationals and who have the right of residence or permanent residence.

2. By way of derogation from paragraph 1, the host State shall not be obliged to confer entitlement to social assistance during residence in accordance with Articles 6 or 14(4)(b) of Directive 2004/38/EC, nor shall it be obliged, prior to acquisition of the right of permanent residence in accordance with Article 14 of this Agreement, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families.

Background: This reflects part of para 31 of the joint report, which refers to securing equal treatment within the limits of the citizens’ Directive. There are specific rules on equal treatment of workers, which are set out in Article 22 of the agreement.

Comment: The reference to EU law means that the case law on Articles 6, 14(4)(b) and 24 of the citizens’ Directive will apply (see discussion of that case law here). Para 1 is very similar to Article 24(1) of the Directive, which is referred to directly anyway, except that it refers to the “specific provisions of” and “scope of” this agreement, rather than of the TFEU.

The limits on access to benefits in para 2 are substantively identical to those in Article 24(2) of the citizens Directive: no social assistance during the first three months of residence or for an initial job-seeker, and no student benefits for non-economic migrants until they attain permanent residence. 



CHAPTER 2

Rights of workers and self-employed persons

Article 22

Rights of workers

1.  Workers in the host State and frontier workers in the State or States of work shall enjoy the following rights:

(a) subject to the limitations set out in Article 45(3) and 45(4) TFEU:

(i) the right, in accordance with Article 45(2) TFEU, not to be discriminated against on grounds of nationality as regards employment, remuneration and other conditions of work and employment;

(ii) the rights referred to in Article 45(3) TFEU;

(b) the rights set out in Regulation (EU) No 492/2011 of the European Parliament and of the Council, including:

(i) 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;

(ii) the right to assistance afforded by the employment offices of the host State or the State of work as offered to own nationals;

(iii) 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;

(iv) the right to tax and social advantages;

(v) collective rights;

(vi) the rights and benefits accorded to national workers in matters of housing;

(vii) 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.

2.  Where a direct descendant of a worker who has ceased to reside in the host State is in education in that State, the primary carer for that descendant shall have the right to reside in that State until the descendant reaches the age of majority, and after the age of majority if that descendant continues to need the presence and care of the primary carer in order to pursue and complete his or her education.

3. Employed frontier workers shall retain the rights they enjoyed as workers in the State or States of work, and the right to enter and exit that State in accordance with Article 13.

Background: This Article elaborates upon para 31 of the joint report, which said (among other things) that equal treatment would be guaranteed for workers on the basis of Regulation 492/2011.

Comments: Article 22 is a précis of the specific rights of free movement of workers in EU law, as set out in Article 45 TFEU and Regulation 492/2011, which replaced the previous Regulation 1612/68. Article 4 of the agreement therefore requires relevant CJEU case law to apply, or for the UK courts to have due regard to it. Note that the CJEU case law has confirmed that the concept of “worker” has a wide scope, applying for instance to part-time workers and trainees, as long as they are doing “genuine and effective” work.

On Article 22(1)(a): Article 45(3) TFEU limits free movement of workers on grounds of public policy, public security and public health, although the case law on the relevant parts of the citizens’ Directive (and its predecessor legislation) referred to in Article 19 of this agreement, and the case law interpreting it, are also relevant. Article 45(4) TFEU limits free movement of workers by providing that “The provisions of this article shall not apply to employment in the public service. CJEU case law interprets this exception narrowly.

Article 22(1)(a)(i) simply restates Article 45(2) TFEU, which has been the subject of CJEU case law. The reference to Article 45(3) TFEU in Article 22(1)(a)(ii) entails a reference to: “accept offers of employment actually made”; “move freely within the territory of Member States for this purpose”; “stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action”; and “to remain in the territory of a Member State after having been employed in that State”. The rules on the last of those issues now appear in Article 17 of the citizens’ Directive, and are incorporated in other provisions of this agreement.

Article 22(1)(b) effectively refers in turn to Regulation 492/2011: Article 1(1) (point Article 22(1)(b)(i)); Article 5 (point Article 22(1)(b)(ii)); Article 7(1) (point Article 22(1)(b)(iii)); Article 7(2) (point Article 22(1)(b)(iv)); Article 8 (point Article 22(1)(b)(v)); Article 9 (point Article 22(1)(b)(vi)); and Article 10 (point Article 22(1)(b)(vii)). But this is a non-exhaustive list (“the rights set out in Regulation 492/2011, including…”), so the rest of the Regulation is covered too. 

Article 22(2) reflects the case law on Article 10 of Regulation 492/2011 and its predecessor, Article 12 of Regulation 1612/68, which gave residence rights to children in education and their carers as a corollary of access to education. The residence right of the child of a worker (or former worker) is protected by Article 22(1)(b)(vii), since it must be interpreted in accordance with prior CJEU case law (according to Article 4(4) of the agreement). See most recently the Alarape and Tijani case, discussed above as regards Article 14.

Article 22(3) does not reflect any specific provision of the citizens’ Directive or Regulation 492/2011.

Article 23

Rights of self-employed persons

1.  Self-employed persons in the host State and self-employed frontier workers in the State or States of work shall have the following rights:

(a) 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;

(b) the rights as set out in Article 22 of this Agreement.

2.  Self-employed frontier workers shall have the same rights as employed frontier workers, without prejudice to Article 32 concerning the scope of rights.

Background: The equal treatment right in para 1(b) reflects part of para 31 of the joint report.

Comment: The wording of para 1(a) reflects the text of Article 49 TFEU, on the rights of self-employed persons. The extension of the provision on workers’ equality in Article 22 to self-employed persons (see para 1(b)) is significant, since Regulation 492/2011 does not apply as such to self-employed workers; rather their equal treatment rights are based on the Treaties. Para 2 does not reflect any specific legislative rule, but it should be noted that it reaffirms the limit on UK citizens exercising free movement rights in other Member States, set out in Article 32.

Article 24

Issuance of a document identifying frontier workers' rights

Union citizens and United Kingdom nationals who have rights as frontier workers under this Title shall have the right, in the State of work, to receive a document certifying that they have such rights under this Agreement.

Background: This does not reflect any specific provision in the joint report.

Comment: This does not reflect any specific provision of the citizens’ Directive or Regulation 492/2011.



CHAPTER 3

Professional qualifications

Article 25

Recognised professional qualifications

1.  The recognition, before the end of the transition period, of professional qualifications, as defined in point (b) of Article 3(1) of Directive 2005/36/EC of the European Parliament and of the Council, of Union citizens or United Kingdom nationals by their host State or their State of work shall maintain its effects in the respective State, including the right to pursue the profession under the same conditions as its nationals, where such recognition was made in accordance with any of the following provisions:

(a) Title III of Directive 2005/36/EC in respect of the recognition of professional qualifications in the context of the exercise of the freedom of establishment, whether such recognition fell under the general system for the recognition of evidence of training, the system for the recognition of professional experience or the system for the recognition on the basis of coordination of minimum training conditions;

(b) Article 10(1) and (3) of Directive 98/5/EC of the European Parliament and of the Council in respect of gaining admission to the profession of lawyer in the host Member State;

(c) Article 14 of Directive 2006/43/EC of the European Parliament and of the Council in respect of the approval of statutory auditors from another Member State;

(d) Council Directive 74/556/EEC in respect of the acceptance of evidence of the knowledge and ability necessary in order to take up or pursue activities of self-employed persons and of intermediaries engaging in the trade and distribution of toxic products or activities involving the professional use of toxic products.

2.  Recognitions of professional qualifications in accordance with Title III of Directive 2005/36/EC referred to in point (a) of paragraph 1 of this Article shall include:

(a) recognition of professional qualifications which have benefited from Article 3(3) of that Directive;

(b) decisions granting partial access to a professional activity in accordance with Article 4f of that Directive;

(c) recognitions of professional qualifications for establishment purposes made under Article 4d of that Directive.

Background: This reflects the first sentence of para 32 of the joint report. Directive 74/556 has been added. Article 25(2) is a clarification that is not expressly set out in the joint report. I have replaced the footnotes with hyperlinks to the legislation.

Comments: This clause ‘grandfathers’ recognition of professional qualifications awarded before the end of the transition/implementation period, but does not cover recognition of UK qualifications for EU27 citizens who move after the end of that period to the Member State of nationality, or another Member State. Equally it would not cover recognition in the UK of an EU27 qualification after Brexit day, even if the qualification was obtained beforehand. As such this wording acts as a kind of retroactive obstacle to the prior exercise of free movement. See comments on Articles 8 and 9 above, with suggested amendments there. The references to EU legislation mean that articles 4 and 5 of this agreement apply to interpretation.

It should be noted, however, that the EU draft guidelines on the future relationship refer to possible negotiation on recognition of qualifications, which would cover the gaps just identified – if such negotiations are comprehensive and successful.

Article 26

Ongoing procedures on the recognition of professional qualifications

Title III of Directive 2005/36/EC, Article 10(1) and (3) of Directive 98/5/EC, Article 14 of Directive 2006/43/EC and Directive 74/556/EEC shall apply in respect of the examination by a competent authority of their host State or State of work of any application for the recognition of professional qualifications introduced before the end of the transition period by Union citizens or United Kingdom nationals and in respect of the decision on any such application.

Background: This reflects the second sentence of para 32 of the joint report. Directive 75/442 has been added. I have replaced the footnotes with hyperlinks to the legislation.

Comments: This clause ‘grandfathers’ recognition of professional qualifications which were not awarded before the end of the transition/implementation period, but where an application was made for recognition before that date. Like Article 25, this Article does not cover subsequent recognition in another State of a prior qualification applied for before the end of that period, although this issue might be addressed by a “future relationship” treaty. 

Article 27

Administrative cooperation on recognition of professional qualifications

With regard to the pending applications referred to in Article 26, the United Kingdom and the Member States shall cooperate in order to facilitate the application of Article 26. Cooperation may include the exchange of information, including on disciplinary action or criminal sanctions taken or any other serious and specific circumstances which are likely to have consequences for the pursuit of the activities falling under the Directives referred to in Article 26.  

Background: This does not reflect any specific para in the joint report. It resembles part of Article 56 of Directive 2005/36, but without any cross-reference to that provision (hence Articles 4 and 5 of this Agreement do not apply) or some of the extra detail in that Article.

Comments: This clause could address concern sometimes expressed in the UK about occasional cases in which EU27 professionals have faced some sort of prior professional sanction and so should arguably not have their professional qualification recognised. Note that the clause only applies to qualification applications pending at the end of the transition/implementation period (Article 26), not those qualifications recognised beforehand (Article 25).

Title III

Coordination of social security systems

Article 28

Persons covered

1.  This Title shall apply to the following persons:

(a) Union citizens who are or have been subject to the legislation of the United Kingdom, as well as their family members and their survivors;

(b) United Kingdom nationals who are or have been subject to the legislation of a Member State, as well as their family members and their survivors;

(c) Union citizens who resided in the United Kingdom before the end of the transition period and continue to do so thereafter, and are subject to the legislation of a Member State, as well as their family members and their survivors;

(d) United Kingdom nationals who resided in a Member State before the end of the transition period and continue to do so thereafter, and are subject to the legislation of the United Kingdom, as well as their family members and their survivors;

(e) Union citizens and United Kingdom nationals who pursued an activity as employed or self-employed person both in the United Kingdom and in one or more Member States before the end of the transition period and continue to do so thereafter, as well as their family members and their survivors;

(f) stateless persons and refugees, residing in a Member State or in the United Kingdom, who are or have been subject to the legislation of the United Kingdom or a Member State, respectively, as well as their family members and their survivors;

(g) nationals of third countries who are not Union citizens or United Kingdom nationals, as well as members of their families and their survivors, provided that they fulfil the conditions of Regulation (EU) No 1231/2010 of the European Parliament and of the Council or Council Regulation (EC) No 859/2003.

2. By way of derogation from point (a) of Article 8 of this Agreement, for the purposes of this Title, "family member" means member of the family as defined in point (i) of Article 1 of Regulation (EC) No 883/2004 of the European Parliament and of the Council.

3. For the purposes of this Title, "legislation" means legislation as defined in point (l) of Article 1 of Regulation (EC) No 883/2004.

4. Union citizens or United Kingdom nationals, as well as nationals of third countries referred to in point (g) of paragraph 1, having worked or resided in a Member State or in the United Kingdom before the end of the transition period shall, for the purposes of aggregation of periods of social                                                           security insurance, including rights flowing from such periods, in accordance with Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 of the European Parliament and of the Council, be covered by this Title.

Background: This Article is based on the second and third sentences of para 28 of the joint report, although that para only referred to UK or EU citizens.  

Comments: Regulation 883/2004 is the main EU law text on social security coordination for those who exercise free movement rights. It’s the latest version of legislation going back to 1958, when the EEC was first founded. Note that para 1(a) and (b) do not require that the person concerned still remains in the relevant EU27 Member State or the UK; this is an implied derogation from Article 9 of the Agreement. Regulation 987/2009 sets out detailed rules to implement Regulation 883/2004.

The inclusion of stateless persons and refugees in para 1(f) follows Regulation 883/2004 (and prior EU legislation on this issue), although note that the CJEU ruled in Khalil and Addou that like EU citizens, they only derive rights from the rules if they have moved between Member States.

Para 1(g) refers to separate legislation extending the EU coordination rules to other non-EU citizens who moved within the EU. The UK opted into the 2003 legislation, but not the 2010 legislation; so presumably the reference to the 2010 legislation covers non-EU citizens who derived rights from it in other Member States (every other Member State except Denmark is covered by both of the two laws).

There are EU treaties with non-EU countries setting out rules on social security coordination or equal treatment; they will apply as regards the UK during the transition/implementation period subject to the special rules in the Agreement on that period. After that point their continued application will depend upon whether the UK has “rolled over” the relevant treaty with the country concerned.

It is not clear if the wording captures those within the scope of Article 2(2) of Regulation 883/2004: survivors of non-EU citizens, where the survivors are EU citizens or refugees or stateless persons. To clarify this I suggest an amendment to add an Article 28(1)(fa) as follows: the survivors of persons who have been subject to the legislation of one or more Member States, irrespective of the nationality of such persons, where their survivors are nationals of a Member State or the United Kingdom or stateless persons or refugees residing in one of the Member States or the United Kingdom.

The cross-references to EU law in Paras 1(g) and (2) to (4) mean that Articles 4 and 5 apply to the interpretation of these rules.

Article 29

Social security coordination rules

1. For the purposes of ensuring the rights referred to in Articles 21, 45 and 49 TFEU, the rights and principles set out in Article 48 TFEU, Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009, as well as the Decisions and Recommendations of the Administrative Commission for the Coordination of Social Security Systems attached to the European Commission, set up under Regulation (EC) No 883/2004 ("Administrative Commission") listed in [Part I of the Annex y+5 to] this Agreement, shall apply to the matters covered by those Regulations as set out in Article 3 of Regulation (EC) No 883/2004, notably the branches of social security referred to therein, including in respect of:

(a) the general principles of social security coordination, and in particular equal treatment, assimilation of facts and benefits, aggregation of periods, export of benefits and the prevention of overlapping benefits set out in Articles 4 to 10 of Regulation (EC) No 883/2004;

(b) the determination of the applicable legislation based on Title II of Regulation (EC) No 883/2004;

(c) administrative cooperation set out in Title V of Regulation (EC) No 883/2004.

2. Contributions both before and after the end of the transition period shall be taken into account for the purposes of aggregation of periods of social security insurance, including rights flowing from such periods, in accordance with Regulation (EC) No 883/2004 and shall be covered by this Title.

3.  Where a person referred to in Article 28 of this Agreement has undertaken a course of planned health care treatment before the end of the transition period in a Member State or in the United Kingdom, while that State was not the competent State as determined in accordance with Title II of Regulation (EC) No 883/2004, that person shall have the right to continue the treatment until its end.

4. If, following the grant of a benefit based on the periods of insurance, employment, self employment or residence in accordance with Article 28(3) of this Agreement, the United Kingdom becomes competent for the healthcare cover of a Union citizen, or a Union Member State becomes competent for the health care cover of a United Kingdom national, that Union citizen or United Kingdom national shall be entitled to healthcare cover as set out in Articles 24 to 30 of Regulation (EC) No 883/2004 and the corresponding reimbursement procedures shall apply between the United Kingdom and the Member State.

Background: The text of paras 1 and 2 reflects the first sentence of para 28 of the joint report: “Social security coordination rules set out in Regulations (EC) No 883/2004 and (EC) No 987/2009 will apply.” The text of paras 3 and 4 reflects para 29 of the joint report; these provisions were discussed in detail by Professor Tammy Hervey (who also proposed amendments).

Comments: The cross-references to EU law in every para mean that Articles 4 and 5 of the agreement apply to the interpretation of these rules. There is a technical question as to whether the wording covers uprating of pensions, which is an issue because the UK often does not uprate pensions for its citizens (or non-citizens who qualify for a UK pension) living abroad. That’s because the EU Regulation uses different wording for “pensions” and “old-age benefits”; pensions are subject to uprating (Article 2(w)) but are not listed as one of the branches of social security in Article 3 of the Regulation (“old-age benefits” are). To avoid any doubt, I suggest an amendment on this issue to para 1, which should read: “notably the branches of social security referred to therein and pensions as defined in Article 1(w) of that Regulation…

Note that the temporal scope of para 2 covers contributions made after the end of the transitional period; so the agreement covers not only pensioners but those who would become eligible for a pension (or another type of social security benefit) in the future, as long as they are in any event covered by the personal scope of this Title as set out in Article 28.

Article 30

Administrative cooperation

1. By way of derogation from Articles 6 and 123(1), and as of the date of entry into force of this Agreement, the United Kingdom shall have the status of observer in the Administrative Commission. It may, where the items on the agenda concern the United Kingdom, send a representative, to be present in an advisory capacity, to the meetings of the Administrative Commission and to the meetings of the Technical Commission for data processing and of the Audit Board, both attached to the Administrative Commission where such items are discussed.

2.  By way of derogation from Article 7, the United Kingdom shall take part in the Electronic Exchange of Social Security Information (EESSI) and bear the related costs.

Comment: Articles 6 and 7 were annotated above. Note that, as confirmed by Article 168, this provision applies from Brexit day, rather than the end of the transition/implementation period.

Article 31

Development of law and adaptations of Union acts

1. Where Regulations (EC) No 883/2004 and (EC) No 987/2009 are referred to in this Agreement and where those Regulations are amended or replaced after the end of the transition period, the reference to those Regulations shall be read as referring to them as amended or replaced, in accordance with the acts listed in [Part II of the Annex] to this Agreement.

The Joint Committee shall revise [Part II of the Annex] to this Agreement and align it to any act amending or replacing Regulations (EC) No 883/2004 and (EC) No 987/2009 as soon as such an act is adopted by the Union. To that end, the Union shall, as soon as possible after adoption, inform the United Kingdom within the Joint Committee of any act amending or replacing those Regulations.

2. Regulations (EC) No 883/2004 and (EC) No 987/2009 shall, for the purposes of this Agreement, be understood as comprising the adaptations listed in [Part III of the Annex] to this Agreement. The United Kingdom shall, as soon as possible after adoption, inform the Union of any changes in domestic provisions of relevance to [Part III of the Annex] to this Agreement within the Joint Committee.

Provided that Regulations (EC) No 883/2004 and (EC) No 987/2009 are respected, the Joint Committee shall revise [Part III of the Annex] on a proposal from the Union or the United Kingdom. 

3. The Joint Committee shall amend [Part I of the Annex] to reflect any new Decision or Recommendation adopted by the Administrative Commission. To that end, the Union shall, as soon as possible after adoption, inform the United Kingdom thereof within the Joint Committee.

The Decisions and Recommendations of the Administrative Commission shall, for the purposes of this Agreement, be understood as comprising the adaptations set out in [Part I of the Annex]. Such adaptations shall, provided that Regulations (EC) No 883/2004 and (EC) No 987/2009 as well as the relevant Decisions or Recommendations adopted by the Administrative Commission are respected, be made by the Joint Committee on a proposal of the Union or the United Kingdom. 

Background: this Article reflects para 30 of the joint report, which reads:

For rights and obligations set out in Regulations (EC) No 883/2004 and (EC) No 987/2009 on the coordination of social security systems, a mechanism will be established to decide jointly on the incorporation of future amendments to those Regulations in the Withdrawal Agreement;

Comments: The Joint Committee is established by Article 157, discussed below. The measures concerned may in practice be filtered through the specialised sub-committee on citizens’ rights, referred to in Article 158. Joint Committee decisions are binding and have the same legal effect as the main Agreement, as set out in Article 159. This is the only area where the Joint Committee has decision-making powers as regards citizens’ rights.

The obligation for the Joint Committee to match amendments to EU law does not correspond to the wording of the joint report, which refers to deciding jointly on this issue. Nor does it give the UK consultation rights when the proposal is being discussed. I suggest therefore an amendment, which would read:

The Joint Committee shall endeavour to revise [Part II of the Annex] to this Agreement and align it to any act amending or replacing Regulations (EC) No 883/2004 and (EC) No 987/2009 as soon as such an act is adopted by the Union. To that end, the Union shall, as soon as possible after adoption, inform the United Kingdom within the Joint Committee of any proposed or adopted act amending or replacing those Regulations. The United Kingdom may request consultations on a proposed act within the Joint Committee.



TITLE IV

OTHER PROVISIONS

Article 32

Scope of rights

In respect of United Kingdom nationals and their family members, 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 other Member States.

Comment: This text fails to enshrine the acquired rights to free movement for UK citizens in the EU27 states. Since it profoundly violates the principle of ensuring acquired rights as much as possible, it should be redrafted from scratch.

Suggested amendment: United Kingdom nationals and their family members covered by this Part shall retain their rights to free movement to the territory of another Member State, including the right of establishment in the territory of another Member State, andr the right to provide services on the territory of another Member State or to persons established in other Member States. The European Union shall adopt legislation to set out the modalities of exercising this right by the end of the [transition] [implementation] period.

Article 33

Publicity

The Member States and the United Kingdom shall disseminate information concerning the rights and obligations of persons covered by this Part, in particular by means of awareness-raising campaigns conducted, as appropriate, through national and local media and other means of communication.

Background: There is no corresponding provision in the joint report.

Comment: This text is identical to Article 34 of the citizens’ Directive, adapted to the specific circumstances of this Agreement. The reference to the media is sadly ironic in light of shrieking and misleading reporting about EU27 citizens often found in some UK newspapers.  



Article 34

More favourable provisions

1. This Part shall not affect any laws, regulations or administrative provisions applicable in a host State or a State of work which would be more favourable to the persons concerned. This paragraph shall not apply to Title III.

2.  Article 11 and Article 21(1) shall be without prejudice to the Common Travel Area arrangements between the United Kingdom and Ireland as regards more favourable treatment which may result from these arrangements for the persons concerned. 

Background: Para 1 reflects para 22 of the joint report, which reads: “The UK and EU27 Member States can apply more favourable national provisions in accordance with Article 37 of” the citizens’ Directive. Para 2 does not reflect the citizens’ rights provisions of the joint report, but the common travel area is referred to in the Irish border section of the report (para 54). The CTA is not referred to in the citizens’ Directive, but it is referred to in a Protocol attached to the Treaties and in the Irish border Protocol attached to the withdrawal agreement.

Comment: Para 1 is effectively identical to Article 37 of the citizens’ Directive, but does not refer to it expressly. Therefore Articles 4 and 5 of this Agreement on interpretation will not apply. There is an important substantive issue here: in Ziolkowski, the CJEU said that more favourable rules applied by Member States were not incorporated into the system set up by the citizens’ Directive. That raises the question of whether the UK’s discretion to waive the comprehensive sickness insurance requirement (see discussion on Article 17), or or deal with Surinder Singh cases (see discussion on Article 8) will bring the persons concerned within the scope of the rights in the Withdrawal Agreement, or whether their position will remain solely based on national law. In the absence of a cross-reference to EU law, that will not necessarily be the correct interpretation of this clause, but it is a risk. For that reason the proposed amendments to Articles 8, 9 and 17 should be adopted.

Note that para 1 does not apply to Title III, which deals with social security (Articles 28-31). This reflects the reference to the citizens’ Directive only in the joint report.

Article 35

Life-long protection

The persons covered by this Part shall enjoy the rights provided for therein for their lifetime, unless they cease to meet the conditions set out therein.

Background: This is based on para 12 of the joint report, which refers to family reunion for the life time of the right holder. The scope of this Article is, however, wider than that.

Article 35A

Data protection

Regulation 2016/979 shall fully apply to the processing of personal data based upon this Part.

Comment: This new clause is necessary in order to ensure full protection of EU27 citizens’ data protection rights in the UK, which appear to be jeopardised by a Bill before the UK Parliament. There would be reciprocal protection for UK citizens in the EU27.

7 comments:

  1. Thank you Dr Peers for this great comment on the Withdrawal Agreement Draft, which was very helpful for a Brexit essay (LLM) and which I will willingly cite therein. Just one question: Will there be an update to the Draft of 19.3.2018, which seems to have included Zambrano in Article 8? What do you make of the fact that Article 32 is suddenly missing in the newest draft, which jumps from Article 31 to 33?

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    1. There will likely be some minor amendments to the 19 March draft. Why do you think Article 8 now covers Zambrano cases? And the absence of Article 32, in my view, changes nothing, as there would need to be a positive rule in place to ensure that UK citizens resident in the EU27 keep free movement rights.

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  2. I referred to the new Article 8 (a) (ii) which includes in the family member definition "persons other than those defined in Article 3(2) of Directive 2004/38/EC whose
    presence is required by Union citizens or United Kingdom nationals in order not to deprive them of a right of residence granted by this Part". Well, this certainly seems to cover "Zhu/Chen-children/carers" which have exercised their rights. You're right, Zambrano still seems only to be covered by a veeeeeery extensive interpretation. With regard to Article 32, in my opinion, it is just very outrageous that the new draft is simply silent on it by jumping from 31 to 33. The citizens affected certainly deserve better communication.

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  3. Steve, doesn't art 10 disapply rather than apply the usual rules on absences for the purposes of determining continuity of residence. In other words, you don't, for example, have to evidence that you have not been absent for more than 6 months in a year. If I have understood correctly, this seems quite important for the settled status application process.

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    1. I could have phrased that better. Article 14(3) disapplies the usual rule on *loss* of permanent residence, making it five years instead of two. But Article 14(2) simply restates, as I said, the normal rule on continuity of residence for the *acquisition* of permanent residence.

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  4. I don't fully understand article 12 part 2 . "family members who are either union citizens or UK citizens....etc" In simple terms I am a civil partnership with a Spanish citizen in Spain . Does that mean that I will become a cominitario familiar ? Same as any other non EU citizen who marries an EU citizen ? TIA

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    1. If you are a UK citizen in an EU27 state on Brexit day (or rather at the end of the transition period) you would retain status under EU free movement law which you already had. Your status would most likely be based on being working or self-employed, or failing that having sufficient resources (which can be provided by a partner) and comprehensive sickness insurance. You would not be the family member of an EU citizen, since that status only applies when the EU citizen has moved to another Member State under free movement law. You might have been there long enough by that point to obtain permanent residence status. Also Spanish law might provide for status of civil partners of its own citizens.

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