a proposal for a Protocol


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

Since
the EU and UK presented a (partially) agreed draft version of the
Withdrawal Agreement (WA) in March 2018, many seem to assume that the
post-Brexit status of the more than 3 million EU27 citizens in the UK (and more
than a million British citizens in the EU) is resolved.  The EU has indeed made an important effort to
define and obtain a status for those citizens that comes close to their current
rights.  However, the debate has
particularly focused on the material scope of these rights, rather than on the
process through which people will be recognised entitlement of those
rights.  In fact, many people who have
been legally in the UK for years or decades are at risk of failing to prove
their entitlement to remain once the UK has left the EU. 
The
key problem is that the Withdrawal Agreement is built on a flawed premise.  It assumes that by copying the criteria of Directive 2004/38/EC (the Citizens Directive) relating to the acquisition of
residence rights, EU27 citizens will be guaranteed the same status as they hold
today.  In a nutshell, in order to obtain
residence rights provided by the Directive, one needs to be in work (or have
been in work), or show to have sufficient resources and comprehensive sickness
insurance. There is a level of discretion for the Member States on whether and
to what extent they impose and control these criteria.  However, applying these criteria will operate
very differently once the UK leaves the EU than when it was still an EU member. 

First,
after Brexit EU citizens in the UK will no longer be protected by all judicial
remedies provided under EU law. The infringement procedure will no longer
apply. Neither can Francovich damages
be asked for in the national court. 
There are still doubts on how exactly the UK will ensure respect of
direct effect of the WA’s citizens provisions; and one can question to what
extent UK courts will make use of the time-limited option to ask preliminary
references.  Courts have a considerable
discretion in this, and one wonders to what extent judges will feel inclined to
make use of it once the UK is no longer part of the EU.  The UK has already shown bad implementation
of the Citizens Directive (for instance in relation to Comprehensive Sickness
Insurance) even as a Member State of the EU. Without the full protection of the
EU judicial system, correct enforcement of the Directive and the WA post-Brexit
will become even more problematic.

Secondly,
once the UK withdraws from the EU, the criteria of the Citizens Directive will
be applied in a constitutive rather than a declaratory registration system.
Under a constitutive system people have to successfully apply in order to
obtain a residence status.  In case of
rejection, an applicant will have no document certifying their status; as a
result they will lose all entitlements and ultimately face deportation.  The consequences of not obtaining a ‘settled
status’ document are thus far more serious than not obtaining a permanent
residence card under EU law.  In a
declaratory system, absence of a document does not mean that you are not
entitled. Even if your application is rejected you might still be able to stay
on a temporary basis, or might be able to return under free movement
provisions.  The consequences of a
constitutive registration system can be particularly dire if combined with the
UK’s so-called ‘hostile environment’ policy on immigration.

Thirdly,
applying the criteria of the Citizens Directive within a constitutive system is
particularly problematic in the UK context because the country never registered
EU citizens upon arrival.  Requiring
citizens who for example may have lived in the UK for decades to
retrospectively prove their legal status may prove highly problematic in many
cases.  The recent Windrush scandal
exemplifies the dramatic consequences of such an approach.

Finally,
the sheer number of people to be registered within a short period of time makes
a rigid application of the Citizens Directive practically impossible and
undesirable.  This has also been
recognised by the UK Government. The UK’s implementation of the EU permanent
residence registration procedure has a current rejection rate of 28%.   If a similar interpretation of the Directive
criteria and registration was to be applied to more than three million EU
citizens, this could have disastrous consequences.

It
is, therefore, rather shocking that the EU has agreed a WA that simply copies
the Directive criteria, pretending that all those currently profiting from EU
free movement rights in the UK would still be protected after Brexit, and
underestimating the particular challenges of applying these criteria in a very
different context.

The
UK Government itself has stated that a rigid application of the criteria is
both impossible and undesirable.  Thus it
has promised that it would not apply the criteria of Comprehensive Sickness
Insurance (CSI) and ‘genuine and effective work’ and that it would instead
introduce a simple registration system based on proof of identity, residence
and criminality checks.  But, these are
merely political statements. The Government can change its position at any
time, possibly introducing a registration system not dissimilar from the
current procedure for permanent residence applications, with that difference
that after Brexit the procedure would be constitutive in nature.  This would mean that about 28% of 3 million EU
citizens would immediately face the hard consequences of the UK’s ‘hostile
environment’ and be threatened with deportation.

So
why has the EU not made more effort to ensure the UK’s political statements
would be turned into legal commitments and thus avoid such a scenario?

The
European Commission has taken a formalistic approach arguing that EU citizens
retain the same entitlements as under the EU Citizens’ Directive, and thus
pretending they are not at risk. However, that fails to acknowledge that these
criteria cannot operate in the same way when they are applied in a country that
never had registration and will introduce a constitutive registration system
when it is no longer a Member of the EU. 
The refusal to accept this reasoning seems to be inspired by the fear
that writing more details into the WA on a simpler registration system in the
UK would put the other 27 Member States under pressure to apply a similar
procedure, and thus de facto undermine the discretion allowed by the Citizens’
Directive.

However,
the WA is an international treaty.  It
can set particular provisions for the UK (as, in fact, it does on other issues,
such as requiring an independent authority to be set up in the UK), and this
approach would be justified by the fact that the legal situation in a country out
of the EU is not identical to that of countries in the EU. Hence, legally this
can be done within the WA without imposing new requirements on the other 27
Member States.   Nevertheless, if there
is political reluctance by the remaining Member States, an alternative solution
is to set out the UK’s political statements regarding a simple registration
based merely on residence, ID and criminality check into a Protocol attached to
the WA.  A Protocol would not change the main
text of the WA, but simply set out legally the political promises the UK has
made with regard to how it will implement the WA. The aim of adopting a
Protocol is to make these unilateral commitments by the UK legally binding at
the international level.  This is because
a Protocol has the same legally binding force as an international treaty like
the WA.  Protocols can set out further
details, often signed by and applicable to only some parties to the main
international treaty.

Given
that the Brexit withdrawal negotiations are based on the principle ‘nothing is
agreed until everything is agreed’, such a revision of the WA or the inclusion
of a Protocol specific for the UK is still possible.  Whether this is politically achievable
depends on several actors.  It is not
clear to what extent the formalistic approach of the European Commission was
really inspired by substantive resistance from the Member States.  The negotiation has been strongly driven by
the European Commission, within a very short time frame, leaving the Member
States little time to get through the nitty-gritty complex citizens’ rights
provisions of the WA. Whether the UK is ready to agree to such a revision of
the WA or to signing up to a separate Protocol depends on bargaining power in
the negotiations.  From its perspective,
it comes down to setting out legally a commitment it had already made
politically, but it might be very reluctant to do so at an international level.

Yet,
the UK government may be willing to do so if the EU offered freedom of movement
throughout the entire EU for the British citizens already residing in Europe,
which remains the biggest weakness of the WA for this group.  The European Parliament might be the ultimate
dealmaker on this issue.  It has
presented itself as the big defender of citizens’ rights in the Brexit
negotiations and has repeatedly stated it will not approve the WA if it has no
guarantees on their protection.  Yet, to
defend EU citizens properly it has to realise that the key issue is no longer
whether the WA copies all rights of the citizens’ Directive, including the
right of residence for a third country spouse, but whether it provides
procedural guarantees on the registration system that take into account the
particular challenges of the UK post-Brexit.

In
the remainder of this paper I will provide a draft of a Protocol to exemplify
what role it can play and how it could be written.  There is no one single way in which such a
Protocol could be drafted or used.  The
exact content will depend on how the UK intends to implement the Withdrawal
Agreement, and formulation of the exact provisions will obviously be done by
legal drafters.  The aim of this proposal
is to show what a Protocol could look like, how it would operate and what would
be its main provisions.   At the same
time, the proposal is not an ‘ideal type’ solution, but is based on several
intentions the UK Government has made clear:

1)        The UK Government has committed to a
procedure that will be simple and based on ‘residence, identity, and
criminality check’. It has repeatedly stated that it will neither require proof
of Comprehensive Sickness Insurance, nor of ‘genuine and effective work’.  The latter implies that the UK will not apply
any means testing in its registration procedure. Under EU law, means testing is
only possible if one fails the test of ‘genuine and effective work’.  Hence, if the UK were to introduce means
testing without a preceding test of ‘genuine and effective work’, it would be
in breach of EU law and the commitments of the Withdrawal Agreement.

2)        The WA allows for the creation of either
a constitutive or a declaratory registration system.  The UK Government has stated it will
introduce a constitutive registration system. 
As it is politically highly unlikely that the UK could be persuaded to
accept a declaratory system, or to revise the WA in that direction, this
proposal for a Protocol is based on the premise that a constitutive system will
be introduced.

3)        The UK Government has proposed an online
registration system, through which people would apply and the Home Office will
then check data making use of existing databases from the revenues collection
and the work and pensions government departments (i.e. HMRC and DWP).  The full details of this procedure have not
yet been communicated.  Neither are there
yet any substantive details of how people can apply if they have no online access
or they face other barriers that will make it harder for them to apply.  On the basis of the available information,
this proposal suggests a registration procedure that allows either application
online (as set out in Article 2(2) and (3) of the proposed Protocol) or
application via post or contact with local services such as passport service
(set out in Article 2(4))

As
the exact way the UK intends to implement the UK is not yet clear, this
proposal for a Protocol cannot be read as a full legal translation of the UK’s
intentions. Moreover, I have included some provisions necessary to protect EU
citizens’ rights but that go beyond what the UK Government has promised in its
political statements.

Barnard & Peers: chapter 27

Photo credit: Business Insider UK

Protocol
on the implementation of the Withdrawal Agreement by the United Kingdom

Article
1

Implementation
of Article 4 WA

The
UK shall ensure compliance with Article 4(2) of the Withdrawal Agreement via
the adoption of a Withdrawal Agreement and Implementation Bill.  This act of primary legislation will:

a)         include a provision ensuring the direct
effect and supremacy of Part II of the WA as set out in Article 4(1) paragraph
2 of the WA

b)        fully incorporate the provisions of Part
II of the WA, and in particular the detailed provisions of the registration
procedure as set out in Article 2 of this Protocol.  

Explanation

The Joint Report promised that the
Withdrawal Agreement and Implementation Bill will ensure direct effect, but at
the same time it required for the citizens’ rights provisions of the Withdrawal
Agreement to be fully incorporated in that Bill. This provides a double guarantee; namely a supranational guarantee
via direct effect and protection via primary legislation to avoid that
citizens’ rights provisions are set out in ever- changing and
difficult-to-monitor acts of secondary legislation.  Unfortunately, the WA is less clear in this
regard.  This Article 1 of the Protocol
clarifies the interpretation of Article 4 WA, so it is in line with the
promises made in the Joint Report. 

As the UK will be no longer part of the EU
judicial system, the tool of direct effect on its own, independent of other
features of that system, will not be sufficient to guarantee EU citizens their
rights.  Hence, it is also necessary for
their rights to be set out in primary legislation. In particular where the
Withdrawal Agreement leaves discretion to the Host State (such as on the
application of Article 17WA), the UK should make its key choices of
implementation via primary legislation setting out the main applicable rules in
the Withdrawal Agreement and Implementation Bill and not delegate this
discretion to secondary legislation. 
This does not mean that certain administrative implementation measures
cannot be delegated to affirmative secondary legislation, but the key features
as set out in this Protocol should be set out in primary legislation.

Article
2

Implementation
of Article 17 WA

The
UK will implement Article 17 in the following way:

1.
The United Kingdom will require EU nationals, their respective family members
and other persons, residing in its territory in accordance with the conditions
set out in Part II, Title II, to apply for residence status which confers the
rights under this Title and a physical document evidencing such status.

The
application procedure shall comply with the conditions set out in Article 17.

Explanation

This first paragraph confirms that
the UK registration procedure will comply with all the provisions of Article 17
WA.  It commits the UK to providing a
physical document as proof of status. 
The WA allows for only a digital document.  In light of
the UK’s ‘hostile
environment’ to immigration (which requires private actors such as banks,
employers and landlords to check on the status of immigrants) a digital
document will not be sufficient protection for those benefiting from the
WA.  Ideally, the WA itself needs to be
amended on this issue, as it is equally a potential problem for British
Citizens wishing to benefit from the WA in Europe.

2.
EU citizens falling under Title 2 of Part II of the WA can apply via an online
procedure, which requires:

a)
proof of identity as required under Article 17, 1(i)

b) a
statement that the applicant is resident prior to the end of transition for
those applying for temporary residence; or resident for more than five years
for those applying for settled status

Explanation

It is anticipated that most EU
citizens will be able to apply online for their respective status.  For many this procedure could be minimal and
close to a ‘declaratory’ procedure. From the information so far communicated,
it seems that the Home Office seeks to establish a process where EU citizens
can apply by:

1.      
 providing evidence of identity,
which can be done by scanning passport/ID; and

2.      
 Making a statement on residence. 

This will then prompt the Home
Office to confirm the validity of the ID and check their and other government
agencies existing databases that those applying meet the relevant residence
criteria. 

For many (potentially most) the
process should be concluded at this stage.  
Only if the Home Office has no confirming information, it will ask for
additional information, as set out in the next paragraph.

3.
The Government will check the validity of the identity and then check the
statement against existing databases. 
The Government can require that the applicant provides further proof
regarding:

a)
identity: by presentation of the identity card or passport. In respect of
Article 17,1(i) the administration shall return that document upon application
without delay and before the decision on the application is taken.

b)
residence:

(i)
For temporary residence application, one document showing residence in the last
year before the application. As required by the WA the evidence must show
residence by the last day of the transition period.

Examples
of acceptable items of proof are:

          Letters or other documents from
government departments or agencies, for example HM Revenue and Customs,
Department for Work and Pensions, DVLA, TV Licensing.

          Letters or other documents from your
GP, a hospital or other local health service about medical treatments,
appointments, home visits or other medical matters

          Bank statements/letters

          Building society savings books/letters

          Council tax bills or statements

          Electricity and/or gas bills or
statements

          Water rates bills or statements

          Mortgage statements/agreement

          Tenancy agreement(s)

          Contract of employment showing address

          Telephone bills or statements

Explanation

This list is just an example. The
objective is not to set out an exhaustive list in the Protocol.  However, ideally, a non-exhaustive list could
be outlined in the Protocol and in the Withdrawal Agreement and Implementation
Bill (WAIB), while a full list could be set out by delegated legislation
(ideally with the affirmative procedure). Yet, the decision on such delegation
would be taken in the WAIB and not in the Protocol.

 (ii) Applicants applying for settled status
relying on 5 years continuous residence; one document from the list provided in
3(b)(i) above, for each year in any period of five successive years.  The five documents can span a period of six
years if the applicant has been absent for less than one full year.  

(iii)
Applicants falling under Article 17 Directive 2004/38/EC are required to
present one document for each year of their shorter qualification period.
Additionally, one has to provide one document of this list showing residence
within the year preceding the application, and at the latest at the last day of
the transition period, in order to prove continuity of residence.

They
have to provide evidence of being entitled to the shorter qualification period
provided by Article 17 Directive 2004/38EC.

In
respect of Article 7,1(j) supporting documents other than identity documents
may be submitted in copy. Originals of supporting document can be required only
in specific cases where there is a reasonable doubt as to the authenticity of
the supporting documents submitted.

Explanation

This explains how the UK will apply
criteria in relation to settled status, in respect of the WA and Directive
2004/38.  Please note Article 16(3) of
the Directive provides that permanent residence may not be obtained in the case
of absence for an uninterrupted period of six months during the five years, but
extends this to one year in some cases like pregnancy.  The system proposed here in this Protocol
allows maximum one year of absence during the five-year period.  To avoid overload of the application
procedure it does not require proof of continuity of residence other than proof
of continuing residence short (one year) before application. There is no
requirement to prove that one has not been absent for more than two years since
building up the five years.

4.
In alternative to the procedure provided under paragraph 2, the applicant can
apply:

a)
via presentation of the documents listed in paragraph 3, to a local passport
service

b)
via presentation of the documents listed in paragraph 3 via postal application

Explanation

This will particularly facilitate
registration for those who do not have access to online registration.

5.
Family members of EU citizens falling under Title 2 of Part 2 of the WA can
apply, by providing evidence of:

a)
identity, as defined in 3a) of this Protocol

b)
relationship to EU citizen entitled under the WA, in respect of proof of
documents as defined in Article 17 (l) and (m)

Such
applications can be online, via passport service or via postal
application.  Applications can be made
joint with the EU citizen to whom they are family member.

Explanation

The application for family members
is by providing proof of identity and relationship to EU citizen who is
entitled under the WA.  Documents are
those as accepted in Article 17 WA.

6.
The UK Government can apply criminality checks at the time of application in
respect of Article 17(1)(p) of the Withdrawal Agreement, and in respect of
Directive 2004/38/EC as set out in Article 18(1) of the Withdrawal Agreement.  EU citizens and their family members will not
be asked to declare criminal convictions.

Explanation

Article 17(1)(p) allows host states to ask
applicants for a self-declaration. 
However, this is hugely problematic and not required.  Countries can check criminality anyway
without applicants needing to make such declaration.  Self-declaration is mainly a trap so people
who declare wrongly their criminal past, deliberately or unknowingly, can be
sanctioned and deported on this basis. 
The issue is particularly salient as the UK has shown clear intentions
to use criminality checks as a key selection tool and there are examples of
current practice on this matter already in breach of EU law. 

While enforcement of EU law has already
proven difficult in the UK, it will be even more so post Brexit.  Hence in order to properly protect EU
citizens it is necessary to make clear such self-declaration will not be
applied.  This can be done either in the
Protocol or by changing the WA on this. The latter would be preferable as it
will also provide protection for British citizens in the EU.

7.
EU citizens and their family members who have not successfully applied by the
end of the grace period will not be deprived of the rights Part II of the
Withdrawal Agreement confers without being previously contacted by the UK
authorities with a request to apply following the procedure set out in
paragraphs 2 to 4 of this Protocol.

Explanation

Some vulnerable people might not have
applied prior to the end of the grace period because they have not been
properly informed or did not know how to apply.   Not holding a document to ascertain their
status is likely to cause these people problems in accessing services,
particularly in the context of the hostile environment policy.  However, these vulnerable people should be
protected from being hit by all the punitive measures of the hostile
environment.  They should not be deprived
of the rights they may hold under the WA, without been given a chance to prove
their status at the moment their lack of registration emerges.   

8.
EU citizens who have obtained settled status hold this status for life, with
exception of the situations provided in Articles 14(3) and 18 of the Withdrawal
Agreement. People who have lost their document evidencing their status will be
provided with a new document simply on the basis of proof of identity, with
respect of conditions as set out in Article 17. They will not be asked to
provide again the original documentation at the basis of their status. Neither
will they be asked to provide new proof.  
The same applies in case the document confirming settled status is
subject to renewal.  Such renewal will
neither require the original documentation nor new evidence, but will simply be
delivered by proof of identity.

Explanation

Article 14(3) WA states that settled status
can be lost after five years of absence. 
Article 18 WA allows deportation for criminality on grounds beyond
Directive 2004/38 for acts post transition. 
Only an indefinite right to return and deportation on grounds as defined
by the Directive will ensure that EU citizens hold a status that equals their
current status.  This would require
amending the text of the draft Withdrawal Agreement. However, independently of
whether the WA is revised, it is important to make clear that loss of the
document or renewal of settled status should not be abused as a way to
undermine EU citizens’ established rights. 
Unfortunately, current UK immigration law practice provides multiple
examples of situations where people are asked to provide evidence all over
again when documents are due to be renewed or have been lost.   If applied to settled status, this would
mean that people are never certain of their status, and will remain in a
permanent situation of having to prove their entitlement for the rest of their
life.

9.
Article 17 (1)(e) will be implemented in compliance with the General Data
Protection Regulation.

Explanation

Article 17(1)(e) requires a transparent
procedure.  The UK has just introduced
an exemption on data protection in immigration related matters.  This bluntly undermines the data protection
rights provided by the GDPR and puts EU citizens at risk of not being able to
fight judicially measures taken against them by the Home Office.  The Protocol should make clear that the
GDPR will be respected in relation to the implementation of the WA.



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