Professor Steve Peers
The recent joint report on Brexit negotiations, along with accompanying documents, represents an informal agreement to move to the next stage of discussions. This phase will center around a transition period and the framework for the future relationship between the UK and the EU.
Although a political rather than legal document, this report holds significant practical relevance for the withdrawal agreement. It outlines agreed-upon details concerning citizens’ rights, the Irish border, the financial settlement, and concluding rules. However, some aspects require further agreement or refinement, the formal legal text needs drafting, and any transition period arrangements must be integrated. Nevertheless, this agreement marks a significant step toward a finalized withdrawal agreement.
This post will focus specifically on the citizens’ rights aspects of the deal, with a more in-depth analysis of other issues to follow.
Scope of the agreement
It’s crucial to understand that the citizens’ rights agreement is reciprocal, covering both EU27 citizens in the UK and UK citizens in the EU27. However, public discourse often neglects the latter group, and the joint report arguably follows suit. While the UK has moved closer to the EU27’s position on several issues, compromises remain.
The agreement covers citizens who have “exercised free movement rights by the specified date” – Brexit Day. This means individuals residing legally on that date, including those temporarily absent in line with EU free movement law. Family members defined by the EU citizens’ Directive are also included, as are those working as frontier workers on Brexit Day. The final agreement is expected to cover those who moved in accordance with the Treaties, such as individuals covered by the free movement of workers Regulation, Surinder Singh cases, and dual citizens. However, non-EU family members of British citizens residing in the UK covered by the Zambrano case law are seemingly excluded.
Further negotiations are needed on the free movement rights of UK citizens in the EU27, post-Brexit qualification recognition, future healthcare (including the EHIC card), lawyers practicing under home state title, and posted workers.
Family reunion
The agreement imposes limitations on family reunification after Brexit. Current rules for admitting core family members (spouse, children, dependent parents, etc.) will apply only to those related to the relevant EU27 or UK national on Brexit Day. National law, which is generally less generous, will apply to those related after Brexit Day. However, national law won’t apply to children born or adopted after Brexit Day.
The agreement also affects extended family members. While the current EU citizens’ Directive mandates consideration for entry of non-registered partners and other dependent family members, the agreement limits this right to partners only. The partnership must also be durable and exist on Brexit Day.
Overall, the agreement weakens existing family reunification rules. For example, the UK’s strict income requirements for sponsoring family members will impact EU27 citizens post-Brexit if their marriage occurred after that date. This also impacts UK citizens bringing an EU spouse to the country.
Residence rights
The agreement allows parties to require UK or EU27 citizens to apply for new residence status under national law. This particularly affects the UK’s plan to require settled status applications from all EU citizens. While rules aim to simplify the process, they primarily benefit the UK, potentially neglecting difficulties faced by UK citizens transitioning to national immigration status in EU27 states. The relevant EU law on non-EU citizens, the long-term residents’ Directive, is also overlooked.
The agreement allows for the transfer to national status, with a two-year grace period for application. However, the consequence of not applying within this timeframe remains unclear. The agreement also permits the removal of individuals suspected of abusing rights even before completing judicial redress procedures. This derogation from existing protection raises concerns.
The agreement confirms the application of current rules from the EU citizens’ Directive to residence and permanent residence rights. However, it allows for refusal of permanent residence due to lacking “comprehensive sickness insurance.” This impacts stay-at-home parents or carers whose NHS coverage may be deemed insufficient. The agreement also allows for systematic criminality checks, prohibited under the citizens’ Directive.
The threshold for refusing status will shift to national law, potentially leading to status loss for offenses that wouldn’t have this consequence under free movement law. Permanent residence rights obtained under the agreement will, however, extend to five years of departure instead of two under the EU citizens’ Directive.
Other rights
The agreement ensures that UK and EU27 citizens retain rights under EU social security legislation (including the EHIC card) if they moved before Brexit Day. A process for incorporating future amendments to EU social security law into the withdrawal agreement is yet to be defined. Equal treatment in healthcare and social assistance access is guaranteed under existing EU legislation. Professional qualifications recognized before Brexit Day will remain so, and pending applications will be processed.
Enforcement of rights
The agreement includes detailed provisions for enforcing citizens’ rights. Citizens can directly rely on their rights under the agreement, and inconsistent laws should be disapplied. The UK will introduce legislation incorporating citizens’ rights directly into national law, taking precedence over conflicting laws unless expressly repealed by Parliament.
The agreement allows for international sanctions if either side breaches the agreement following an arbitration process. It remains to be seen how individuals can access this dispute settlement process.
The agreement’s binding nature on the EU and its member states is stated, although direct effect in domestic law is not explicitly guaranteed. However, the agreement’s nature suggests a high likelihood of direct effect in EU law. For clarity, the agreement should explicitly state both parties’ intent to ensure direct effect and supremacy of citizens’ rights rules within their legal systems.
Jurisdiction of the ECJ
While enforcing rights through national courts is possible, the EU27 sought continued involvement of the ECJ. The ECJ’s role is multifaceted:
Interpreting EU law concepts referred to in the withdrawal agreement in line with pre-Brexit Day ECJ case law.
Requiring UK courts to give “due regard” to post-Brexit Day ECJ judgments.
Allowing UK courts to refer questions on the agreement to the ECJ within eight years of its application if no clear case law exists.
Establishing case law exchange between the UK and EU, with intervention rights for both sides in each other’s courts.
Creating an independent UK authority to monitor the agreement’s implementation.
These provisions resemble those in the European Economic Area (EEA) agreement. The UK’s “independent authority” further mirrors the EEA model. This “one-country EEA” model, currently limited to citizens’ rights, might set a precedent for future UK-EU27 relations.
Conclusions
Comparisons of special rights for EU27 citizens in the UK to colonial occupiers or US gun laws are baseless. The agreement merely seeks to maintain aspects of a pre-existing, reciprocally agreed-upon immigration status. Additionally, the agreement aligns with Leave campaign promises to guarantee acquired rights for UK citizens in the EU27 and ensure no less favorable rights for EU27 citizens in the UK.
While some may express disappointment, the agreement provides a degree of certainty for those who have exercised their free movement rights. It offers key guarantees for acquired rights, outlines administrative processes, and includes enforcement provisions.
However, concerns remain for vulnerable groups, such as the homeless facing weakened appeal rights and carers dependent on the UK government’s potentially fleeting goodwill. UK citizens in the EU27 face uncertainty regarding future free movement rights. Lower-income EU27 citizens also face limited family reunification prospects.
Although many might prefer indefinite ECJ involvement, the agreement offers other enforcement mechanisms without time limits. It’s crucial to advocate for the rule of law and the rights of EU citizens domestically, coupled with an effective international dispute settlement system if necessary.
Ultimately, the agreement’s value lies in the increased likelihood of a final deal, offering more security than a “no deal” scenario. However, advocating for improvements that safeguard the lives of UK and EU27 citizens who moved before Brexit Day remains crucial.
Barnard & Peers: chapter 13; chapter 27
Photo credit: vice sports
* *This blog post was supported by an ESRC Priority Brexit Grant on ‘Brexit and UK and EU Immigration Policy’