Stijn Smismans, Professor of Law, School of Law and Politics, Director of the Centre for European Law and Governance, Cardiff University

While a draft Withdrawal Agreement (WA) between the EU and UK, partially agreed upon in March 2018, aims to address the post-Brexit status of EU27 citizens in the UK and British citizens in the EU, concerns remain about the process of securing residency rights. Although the EU has made efforts to safeguard these rights, the focus has been on the scope rather than the process of obtaining them. Many long-term legal residents in the UK risk being unable to prove their eligibility to stay after Brexit.

The WA’s primary flaw is its reliance on replicating the criteria of Directive 2004/38/EC (Citizens Directive) for residency, assuming it guarantees equivalent rights for EU27 citizens as they currently hold. This Directive outlines criteria for residency based on factors like employment status, financial sufficiency, and health insurance. However, implementing these criteria post-Brexit presents significant differences compared to the UK’s pre-Brexit membership in the EU.

Firstly, post-Brexit, EU citizens lose the protective judicial remedies of EU law. The infringement procedure and Francovich damages will no longer apply, and the extent to which UK courts will uphold the WA’s citizens’ rights provisions through direct effect or preliminary references remains uncertain. The UK’s previous shortcomings in implementing the Citizens Directive, even as an EU member, raise concerns about its commitment to upholding these rights outside the EU’s legal framework.

Secondly, the UK’s shift from a declaratory to a constitutive registration system for residency post-Brexit creates significant challenges. Under a constitutive system, individuals must proactively apply and be approved to gain residency status, with rejection leading to potential deportation. This differs significantly from the declaratory system, where the absence of a document doesn’t negate existing rights. This shift, coupled with the UK’s “hostile environment” immigration policy, could have severe consequences for individuals unable to secure the required documentation.

Thirdly, retrospectively proving legal status under a constitutive system poses a substantial burden, particularly in the UK, where EU citizen registration upon arrival was never implemented. Requiring individuals, some with decades-long residency, to provide retrospective proof of their legal standing creates significant logistical and practical hurdles, as highlighted by the Windrush scandal.

Lastly, the substantial number of individuals needing registration within a limited timeframe makes rigidly applying the Citizens Directive impractical and undesirable. The UK government has acknowledged this, recognizing the potential for mass rejection based on the existing 28% rejection rate for EU permanent residence applications. Such an approach would have dire consequences for over three million EU citizens.

It is concerning that the EU agreed to a WA replicating the Directive’s criteria without addressing the unique challenges of post-Brexit implementation in the UK. This approach disregards the shift to a constitutive system and the potential ramifications for EU citizens’ rights.

While the UK government has politically committed to a simplified registration process based on identity, residency, and criminality checks, these remain non-binding promises. The government retains the ability to revert to a more stringent system mirroring the current permanent residence application process, potentially subjecting a significant portion of EU citizens to the “hostile environment” and deportation threats.

The EU’s reluctance to formalize the UK’s political commitments into legally binding obligations is puzzling. The European Commission’s formalistic stance disregards the altered legal landscape post-Brexit and the potential risks for EU citizens. This hesitancy may stem from concerns about setting a precedent for other Member States, potentially undermining the discretion afforded by the Citizens Directive.

However, a Protocol to the WA, specifically addressing the UK’s context, could bridge this gap. It could outline the simplified registration process based on residency, identity, and criminality checks, turning political promises into internationally binding commitments. This approach acknowledges the distinct legal circumstances of a non-EU member state without imposing new obligations on remaining Member States.

Given the ongoing nature of Brexit negotiations, incorporating such a Protocol remains a possibility. The feasibility hinges on political will. The European Parliament, advocating for citizens’ rights, has leverage to push for this. Guaranteeing procedural fairness and a registration system adapted to the UK’s post-Brexit context is crucial to safeguarding EU citizens’ rights, which should be prioritized over a strict adherence to pre-existing Directive criteria.

The remainder of this paper proposes a draft Protocol, exemplifying its potential role and structure. It aims to translate the UK government’s stated intentions into a legally binding framework, ensuring a simple, fair, and transparent registration process for EU citizens. This includes upholding data protection rights under the GDPR and preventing the exploitation of documentation renewal processes. The Protocol seeks to protect the rights of EU citizens residing in the UK post-Brexit, recognizing the unique challenges they face in this new legal and political reality.