A provisional agreement was reached this week on the UK withdrawal from the European Union. The deal sets out in 585 pages the conditions of the UK exit from the EU. It includes a 50-page section on how to protect the status of EU nationals living in Britain and of British residents in the EU.

UK Prime Minister Theresa May and EU chief Brexit negotiator Michel Barnier said that the agreement secures the rights of the people who chose to move across the Channel. But not all existing rights will be protected.

Who is covered by the deal

The withdrawal agreement covers EU nationals residing in the UK and British nationals residing in the EU at the end of the Brexit transition period. The transition is set to last until 31 December 2020, but it could be extended.

The deal also covers family members (spouses and registered partners, parents, grandparents, children, grandchildren and a person in an existing durable relationship), as long as the relationship existed before the end of the transition period.

Children born or adopted after Brexit will be protected too.

Frontier workers (people residing in a country and working in another) are covered too.

Which rights are protected

People covered by the agreeent can continue to live, work or study in their country of residence. In particular, they will continue benefiting of the following rights:

• Study, work and set up business under the same rules and with the same benefits of nationals
• Equal treatment and prohibition of any discrimination on grounds of nationality
• Recognition of qualifications acquired before the end of the transition period
• Social security and benefits, e.g. healthcare and pensions
• Social security coordination, e.g. aggregation of pension contributions in different EU countries (also applicable to persons who resided in the UK or in the EU27 in the past)
• Access to public healthcare during short stays in EU countries, or in the UK, based on the European Health Insurance Card
• Family reunion, as long as the relationship existed before the end of the transition period (future partners will be subject to national immigration rules)
• Return to the country of residence after an absence of up to 5 years
• Reliance on the European Court of Justice for at least 8 years for the interpretation of related laws.

The withdrawal agreement does not prevent countries from granting more generous rights.

Who is not covered by the deal

The focus of the withdrawal agreement is on the people who moved across borders and were at risk of becoming “illegal” after EU treaties cease to apply in the UK. It does not cover British and EU nationals who live in their own country and intend to move from and to the UK after the transition period. New rules will have to be established for them as part of the future trade relationship.

Children born after the UK’s withdrawal and for which a parent not covered by the agreement has sole custody are also excluded.

Although they benefit from EU’s free movement rules, citizens from Iceland, Liechtenstein, Norway and Switzerland who reside in the UK, and vice versa, are not covered by the deal. The UK is making separate arrangements for the countries of the European Free Trade Association. But the Brexit deal allows the coordination of social security rights (e.g. pensions) across the UK, the EU and EFTA countries.

Which rights are lost

Both EU nationals living in the UK and Britons living in the EU lose some of their exisiting rights.

Britons in the EU lose:

• the right to work, study and set up business in EU countries that are not where they reside (free movement rights)
• the recognition of professional qualifications beyond their host country or the country where they work
• the right to return to the UK with non-UK spouses under the more favourable EU regime
• the right to provide cross-border services in the EU as self-employed
• the right to vote in European elections and in municipal elections in the country of residence, unless the host state allows the vote of non-EU residents
• the right to submit European Citizens Initiatives (mass petitions with the request to legislate on a certain matter) to the European Commission.

EU nationals in the UK lose:

• the automatic right of residence, without having to apply and go through criminality checks
• the automatic right to return after an absence of more thatn 5 years
• the automatic right to family reunion for relationships starting after the transition period
• the right to return to the home country with non-EU family members under EU law (because the UK will become a “third country”)
• the recognition in the EU of professional qualifications acquired in the UK after the end of the transition period.

EU nationals provisionally maintain the right to vote in UK local elections, but this may change in the future as voting rights are not protected by the withdrawal agreement.

Some of these rights could be negotiated as part of the future trade relationship or in bilateral agreements between the UK and EU states.

What happens next

Leaders of EU countries and the UK are expected to sign the deal at an extraordinary European Council meeting in Brussels on 25 November. Then the agreement will have to be approved by the UK and the EU parliaments.

After that, the UK and EU countries have to adjust national laws to reflect what has been agreed. If approved, the deal is expected to be enforced on 30 March 2019.

The European Commission will monitor its application in the EU, while the UK will establish an independent authority to fulfill this role. This body will have the power to receive complaints from EU citizens living in the UK and their families, conduct inquiries and bring legal action before UK courts to seek remedy.

The EU and the UK will also have to set up a joint committee to supervise the implementation of the agreement and seek ways to prevent problems or resolve disputes. A special committee on citizens’ rights will also be established.

How it works in practice

If the agreement is approved, not much will change in practice until the end of the transition period.

But the 3.5 million EU nationals in the UK will have to apply for settled status, the scheme designed by the Home Office to secure their rights. This involves paying a fee of 65 GBP, or 32.5 for children under 16 years of age. EU citizens who already hold a permanent residence card can convert it to settled status for free.

Irish nationals do not need to apply because they are covered by the separate arrangements of the Common Travel Area, which ensures free movement between the UK and Ireland.

The online application for settled status is currently being tested and is expected to be fully operational from 30 March 2019. People have to apply by 30 June 2021 (6 months after the end of the transition period).

The 1.2 million British residents in the EU might have to apply for registration schemes set up by EU countries too. Each country is making its own plans.

The European Commission said: “Some EU member states have indicated that they will also apply a mandatory registration system (so-called “constitutive system”). In other Member States, however, UK nationals complying with the conditions set out in the agreement will automatically become beneficiaries of the withdrawal agreement (so-called “declaratory system”). In the latter case, UK nationals will be entitled to request that the host state issues them a residence document attesting that they are beneficiaries of the Withdrawal Agreement.”

Residence documents will be issued for free or for a charge not exceeding that of similar documents for nationals.

So far, only the Czech Republic and Cyprus (pdf document) have published guidance on how they plan to deal with the registration of British nationals.

What happens if the deal falls through

No one knows exactly what will happen if the withdrawal agreement is not approved. A “hard Brexit” with no deal, new elections or another referendum in the UK, a transitional period regardless of a deal are all plausible options.

With regard to citizens, campaigners argue that the best option would be a mini-deal with what has already been agreed.

Countries can also make unilateral commitments. Theresa May already promised to guarantee the rights of EU nationals, but the conditions have not been specified. As regards British residents in the EU, the European Commission has proposed to register them under rules of long-term residence for third country nationals. The unilateral approach, however, does not cover international rights, such as the aggregation of social security contributions.

Another option would be the negotiation of bilateral agreements, but the risk is to end up with different rights in different countries and complications if moving from one to another in the future.

Reactions

Citizens’ rights groups the3million and British in Europe were disappointed at the release of the withdrawal agreement. “There is a strong sense of betrayal among EU citizens in the UK and British citizens in the EU, and by ignoring our numerous asks to improve the March draft agreement over the last 8 months, the negotiators have managed to alienate those who actually made Europe a reality,” the two organisations said in a statement.

Jane Golding, co-chair of British in Europe said: “It is unacceptable and upsetting that free movement, a lifeline for many of us, has been excluded when both sides knew it was critical for us.” Nicolas Hatton, chair of the3million, added: “We are still bargaining chips, as the negotiators will soon discuss the future relationship, with our lives still in the balance.”

Guy Verhofstadt, Brexit coordinator at the European parliament, said:

While I hope one day the UK will return, in the meantime this agreement will make a #Brexit possible, while maintaining a close relationship between the EU and UK, a protection of citizens rights and the avoidance of a hard Irish border. pic.twitter.com/ZAS152JNXO

— Guy Verhofstadt (@guyverhofstadt) November 14, 2018

“The text agreed by the European Union and United Kingdom is the first step on a long road. Nevertheless, I am optimistic that it will pave the way towards a close future EU-UK relationship,” said European parliament president Antonio Tajani.

The Brexit deal aims to secure the rights of people who moved across borders, define the financial settlement of the UK departure (assets and commitments already made to the EU budget), prevent the re-building of a border between Ireland and Northern Ireland, and carry forward existing agreements on issues such as goods placed on the market, intellectual property and geographical indications.

To avoid an Irish border, the UK agreed to stay in a customs union with the EU until a different solution is found within the new trade relationship. The agreement also defines a transitional period during which all EU rules continue to apply in the UK.

Links: draft withdrawal agreement and explainer by the British government.

Claudia Delpero © all rights reserved.
Photo via Pixabay.