EU Law Analysis: 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.

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

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.





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