Citizens' rights

Brexit Explained banner

 

Issue

What the document says

What this means

Who is covered

“Union citizens who in accordance with Union law legally reside in the UK, and UK nationals who in accordance with Union law legally reside in an EU27 member state by the specified date, as well as their family members”

Any citizen and their family members, residing on the date of withdrawal (29 March 2019), are covered by the agreement.

Family reunification, future family members and partners

“family members who were not residing in the host state on the specified date will be entitled to join a Union citizen or UK national right holder after the specified date for the life time of the right holder, on the same conditions as under Union law”

Future family members covered are:

  • family members who were “related to the right holder on the specified date and continue to be related on the date they wish to join the right holder”
  • “children born, or legally adopted, after the specified date”.

The UK and EU will also “facilitate entry and residence of partners in a durable relationship after the UK’s withdrawal in line with national legislation if the partners did not reside in the host state on the specified date, the relationship existed and was durable on the specified date and continues to exist at the point they wish to join the right holder”.

EU citizens residing in the UK will retain their family reunification rights, allowing them to bring family members or partners to the UK without being subject to minimum income requirements or English language tests (as UK citizens are).

However there are a number of caveats:

  • It only covers family members who were related at the point of exit.
  • It only covers those partners that were in a ‘durable relationship’ at the time of withdrawal and continue to be at the point of reunification.

What is considered a durable relationship is defined in UK law.

Application for new status

Citizens must “apply to obtain a status conferring the rights of residence as provided for by the Withdrawal Agreement and be issued with a residence document attesting to the existence of that right.”

“Administrative procedures for applications for status will be transparent, smooth and streamlined”

“Application forms will be short, simple, user friendly and adjusted to the context of the Withdrawal Agreement. The host State will work with the applicants to help them prove their eligibility under the Withdrawal Agreement and to avoid any errors or omissions that may impact on the application decision.”

Where an application is required to obtain status, adequate time of at least two years will be allowed to persons within the scope of the withdrawal agreement to submit their applications.

EU citizens must apply for the new settled status as set out in the UK Government’s white paper on citizens’ rights.

The UK Government will introduce a new streamlined system, which will reduce the burden of proof on applicants and offer them an opportunity to provide supplementary evidence. This is to reduce the high number of rejections on technical grounds that have been seen under the current permanent residence process.

There have been a lot of concerns in the European Commission and the European Parliament about the way existing applications from EU residents have been handled by the UK Home Office.

Citizens will have a two-year ‘grace period’ after exit, where they will be able to apply for this new status.

Existing permanent residence holders

“Those already holding a permanent residence document issued under Union law at the specified date will have that document converted into the new document free of charge, subject only to verification of identity, a criminality and security check and confirmation of ongoing residence”

All permanent residence holders will need to apply for the new settled status, but the process will be a more straightforward swap.

There will be some requirement to prove identify and ongoing residence, and there will be no application fee.

Professional qualifications

“Decisions on recognition of qualifications granted to persons covered by the scope of the withdrawal agreement before the specified date in the host state … will be grandfathered.”

Citizens will continue to have their professional qualifications recognised.

This means lawyers, accountants and other regulated professionals can continue to work as before without needing any new qualifications or recognition of qualifications

European Court of Justice (ECJ) case law

“Citizens’ rights agreement to be interpreted in line with the case law of the Court of Justice of the European Union [CJEU] by the specified date”

In line with the EU Withdrawal Bill, the agreement will be interpreted in line with ECJ case law which exists at the point of exit.

Legislative implementation of the withdrawal agreement

“The UK Government will bring forward a bill, the withdrawal agreement and 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.”

The UK Government has already confirmed that the withdrawal agreement will be legislated in an Act of Parliament.

This will entrench the rights agreed in UK law.

Role of the ECJ

“UK courts shall therefore have due regard to relevant decisions of the CJEU after the specified date. The agreement should also establish a mechanism enabling UK courts or tribunals to decide, having had due regard to whether relevant case-law exists, to ask the CJEU questions of interpretation of those rights where they consider that a CJEU ruling on the question is necessary for the UK court or tribunal to be able to give judgment in a case before it. This mechanism should be available for UK courts or tribunals for litigation brought within eight years from the date of application of the citizens' rights part.”

UK Courts will need to take into account ECJ judgments on cases that happen after Brexit, if they concern citizens’ rights.

If UK courts want clarity or advice on matters of EU law, they will be able to ask the ECJ questions of interpretation.

In practice, this happens relatively rarely. On average, the UK refers only a couple of cases on citizens’ rights to the ECJ each year.

Interpretation of law

“Consistent interpretation of the citizens' rights part should further be supported and facilitated by an exchange of case law between the courts and regular judicial dialogue. It is envisaged to give the UK Government and the European Commission the right to intervene in relevant cases before the CJEU and before UK courts and tribunals respectively.”

As an EU member state, the UK can currently intervene in ECJ cases if they are deemed relevant, even if it is not directly involved.

This agreement preserves that right for matters relevant to citizens’ rights, allowing the European Commission the right to intervene in UK cases and the UK the right to intervene in ECJ cases.

Monitoring and enforcement

“The implementation and application of the citizens' rights part will be monitored in the Union by the Commission acting in conformity with the Union Treaties. In the UK, this role will be fulfilled by an independent national authority; its scope and functions, including its role in acting on citizens' complaints, will be discussed between the parties in the next phase of the negotiations and reflected in the withdrawal agreement.”

The Commission will monitor the implementation and application of the agreement for UK citizens living in the EU, as it does now with EU law in the UK.

The UK will have its own surveillance mechanism, ensuring that it is compliant with the rights agreed for EU citizens living in the UK. This could form part of a surveillance mechanism for the new relationship as a whole, which will be discussed in the next phase of negotiations.

Onward movement – rights for UK citizens to take up residence in another member state

Not included in the text, but covered in ‘Joint technical note' expressing detailed consensus’ on citizens' rights:

"raised by the UK, but outside the scope of the EU mandate for the first phase of the negotiations.”

The EU mandate did not cover the onward movement of UK citizens and their right to move to other member states under the withdrawal agreement.

That means the EU will need to get a mandate that covers this issue before any negotiations can begin

Future mutual recognition of professional qualifications

Not included in text but covered in ‘Joint technical note' expressing detailed consensus’ on citizens' rights.

"raised by the UK, but outside the scope of the EU mandate for the first phase of the negotiations."

For those not covered in the withdrawal agreement – i.e. those who move between the UK and the EU after the date of withdrawal – the question of whether or not their qualifications will be recognised in the other state after Brexit will be determined in future relationship negotiations.

Update date: 
Friday, December 8, 2017