Detailed analysis, annotation and proposed amendments on the EU27 and UK citizens' acquired rights in the proposed withdrawal agreement.
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 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).🔷
Barnard & Peers: chapter 27, chapter 13
(Steve Peers’ original piece was supported by an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'.)
(This piece was first published on EU Law Analysis.)