Menu

Some brief reflections on Citizens Rights in the Brexit Withdrawal Agreement, by Prof. Eleanor Spaventa




The Brexit Withdrawal Agreement has now been finalized and it is soon to be discussed by the UK Parliament. At present, it is impossible to say whether Ms. May will manage to steer the boat and get the deal approved: in fact, as I write, all indications are to the effect that the Withdrawal Agreement and the political declaration attached to it, will not gain the approval of MPs, with much uncertainty as to what would happen next should this be the case (see the article by C. Muttukumaru). In this contribution, I am going to briefly summarise what the Withdrawal Agreement provides for ‘Brexit citizens’, i.e. EU citizens residing in the UK, and British citizens residing in the EU27 at the point of Brexit. A more detailed analysis can be found here

Citizens’ Rights in the Withdrawal Agreement

From the very beginning, both the EU27 and the UK Government espoused a citizens-friendly rhetoric: both parties stated that Brexit citizens, i.e. UK citizens living in the EU27 and EU citizens living in the UK, should not be penalized by Brexit. Accordingly, the EU (and the EU Parliament particularly) made the negotiations of citizens’ rights its first priority and, the citizens’ part of the Withdrawal Agreement was indeed the first to be agreed.

These are the main features of the deal:
 
  • The Agreement covers Union / UK citizens lawfully resident in UK/EU27 at the end of the transition period; frontier workers; work-seekers; and Union/UK citizens’ family members, even when not residing in UK/EU27 at the end of the transition period.
  • Brexit citizens and their family members who have resided lawfully for 5 years or more in the UK /host MS will be entitled to permanent residence.
  • Brexit citizens and their family members have a right to reside in the UK/host Member State; until the Brexit citizen has matured the right to permanent residence, the right to reside is conditional upon meeting the requirements provided for in Directive 2004/38 (either economic activity; or sufficient resources and comprehensive health insurance).
  • Brexit citizens and their family members have a right to equal treatment equivalent to that available under Union law.
  • Social security coordination is maintained for the lifetime of the Brexit citizen. This is particularly important for pensioners who will continue to be insured for health purposes by the State where they last worked; and who will continue to receive their pension under the same conditions as now.
  • The Brexit status continues for the lifetime of the holder; it can be lost either through temporary absences of more than 6 months  per year (in exceptional circumstances residence is not lost even in case of absences of up to a year) before having gained permanent residence status; or absences of more than 5 years after having gained permanent residence.
  • The UK and the Member States remain free to exclude potential beneficiaries on public policy grounds and systematic criminality checks are allowed (something not permitted under Directive 2004/38). In a derogation from established Union law principles, conduct which has occurred after the end of the transition period can be assessed having regard to domestic public policy rather than under the Union law (narrow) concept. This leaves a potential loophole in the protection of Brexit citizens since public policy pursuant to national law is, often, very broadly construed.
  • The Agreement does not cover own citizens and those whose right of residence is derived from national law rather than EU law (for instance through marriage). Basically, this means that:
  • The so-called Singh route to family reunification is not covered by the agreement, i.e. the right for a returning migrant to bring their family back to the home state under the conditions provided for by Union law for migrant citizens.
  • The Ruiz-Zambrano route is (naturally) no longer available to UK citizens, i.e. the right of the child Union citizen not to have their parents deported to a non-EU country if that would mean that they would also have to leave the UK.
  • Those who are residing pursuant to national law rather than EU law at the end of transition will not be allowed to change status later on, and will, therefore, be then subjected to normal immigration rules.   
 
Generally, the agreement seeks to preserve most of the existing rights of Union /UK citizens: this aim is both its virtue and its main limitation. The right to reside in EU law is granted under rather narrow conditions: EU citizens, in order to be protected by EU law, must either be economically active or economically independent.

Brexit risks for economically active

The notion of economic activity is interpreted broadly and covers also part-time work (even very part-time work) as long as the activity is genuine and not marginal and ancillary. However, despite this broad interpretation at the EU level, we know that the Member States do not necessarily comply with the Court’s interpretation.[1]

For instance, several Member States adopt presumptions (sometimes rebuttable sometimes conclusive) in relation to minimum income and /or minimum hours worked to be able to be qualified as a ‘worker’. We also know that those in atypical contracts might find it difficult to obtain worker status: take for instance zero-hours contracts where the worker has to be available for work, but might not be assigned regular hours; or work that varies according to the needs of the employer (e.g. term only contracts and the like). Establishing economic activity, whilst relatively easy in theory, might be therefore very difficult in practice.

In the context of Brexit, this means that some citizens residing in the UK/EU27 might find themselves excluded from the benefits of the Withdrawal Agreement through a formalistic interpretation of the free movement rules. Whereas such formalistic interpretation is always bad news for citizens, it is particularly so in the context of Brexit because if the UK/EU citizen does not gain Brexit status s/he will have to leave her country and would only be able to come back under normal (and usually very strict) immigration rules.

Brexit risks for economically inactive citizens

Economically inactive people are even more vulnerable to exclusion from the Brexit deal. Here, in order to gain EU law residency rights the individual must have sufficient resources and comprehensive health insurance. The Court has declared those requirements to be a necessary precondition in order to gain the rights provided for in Directive 2004/38 (right to reside, right to equal treatment etc).

The problem, in relation to Brexit is then twofold: first of all, many Union/UK citizens might have been simply unaware of the comprehensive health insurance requirement. This is the case for instance in the UK, where healthcare is free at the point of delivery; for students who are generally unaware that, if and when they are no longer covered by the European Health Insurance card, they should seek private insurance; for people who have changed status from economically active to economically inactive etc.

Secondly, even if and when aware of the comprehensive health insurance requirement, many citizens might have not complied because private health insurance is expensive, and prohibitively so for those with pre-existing conditions or disabilities (and certain risks might well be uninsurable). 

The fact that the Withdrawal Agreement replicates the strict conditions in EU law in order to gain Brexit status is, therefore, both problematic and inevitable: it is problematic because de facto risks excluding some citizens who have made their lives in the UK/EU27 only to find that they do not meet the strict requirements provided for by EU law. This might be particularly the case, for instance, in relation to those who have left the job market to assume caring responsibilities (usually women) as well as for those who have a scattered employment trajectory (for instance because of mental or physical health problems outside the protection of Directive 2004/38).

The imposition of those strict conditions is also, however, inevitable because it would have been impossible, as a matter of EU law, to afford a more generous treatment to former EU citizens to that afforded to current EU citizens. Non-EU citizens cannot be treated better than EU citizens: how could, for instance, a UK citizen in Spain not be required to have comprehensive health insurance to establish life-long rights, when a French citizen in the same country would need comprehensive health insurance or face losing residence rights.

This said, it is important to remember that citizens’ rights in the Withdrawal Agreement constitute a baseline: the UK and, to a certain extent, the EU27 are free to provide more extensive protection. In this respect, the UK had initially indicated that it would not check the eligibility of EU citizens applying for pre-settled and settled status, which is to say it would not require proof of employment or comprehensive health insurance, although the extent to which this is still true is debatable.[2] Ideally, and given the uniqueness of the situation, that the EU27 would do the same; yet, there might be some limits imposed by EU and international human rights law on the extent to which such preferential treatment is possible.

UK Citizens in the EU to lose free movement rights

The other most problematic issue with the withdrawal deal is that it does not provide for free movement rights for UK citizens living in the EU 27. This is cause for much grief for British citizens in Europe as it really will dramatically change their lives, locking them in the State of residence at the time of Brexit. This restriction is difficult to explain but for the fact that both parties, despite promises to the contrary, are using citizens as bargaining chips.

In particular, in the explanations to the Withdrawal Agreement published by the UK government it is openly stated that “As part of the future relationship with the EU, the UK will also seek to secure onward movement opportunities for UK nationals in the EU who are covered by the citizens’ rights agreement”.[3]

There are then two potential explanations for the fact that UK citizens have not been given free movement rights immediately: first, as it appears from the above statement, the EU has wanted to reserve leverage in future negotiations possibly to extract some benefits for EU citizens wanting to go to the UK; or/and there is going to be a limited free movement deal which will benefit all EU and UK citizens. In either case, it is utterly disappointing that UK citizens have been deprived of the right to work and live in EU countries other than that in which they live and/or work at the end of the transitional period.
 

[1] See C. O’Brien, E. Spaventa and J.de  Corninck  “Comparative Report 2015: The Concept of Worker under article 45 TFEU and Certain non-Standard Forms of Employment”, Report commissioned by the European Commission.
[2] See the new UK immigration rules, https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-eu, EU15 “Suitability” that indicates that an application will be refused when the applicant is subject to a deportation decision on the grounds of non-exercise of rights granted by Directive 2004/38. Non-exercise of rights covers exactly cases where the citizen not being economically active/independent does not have an EU law right to reside. 
[3] UK Government, Explainer for the agreement on the withdrawal of the United Kingdom of Britain and Northern Ireland from the European Union, 14 November 2018, point 29 

Eleanor Spaventa

Eleanor Spaventa is Professor of European Law at Bocconi University (Milan) having recently moved from the UK. (Eleanor main areas of research are Union citizenship, internal market law, fundamental rights, constitutional issues of the European Union and Brexit. Eleanor has written two reports for the PETI committee of the European Parliament on Brexit and citizens' rights).




L M M J V S D
          1 2
3 4 5 6 7 8 9
10 11 12 13 14 15 16
17 18 19 20 21 22 23
24 25 26 27 28 29 30
31            











Semblanzas Fide

Síguenos en redes sociales
Facebook
Twitter
LinkedIn
YouTube Channel
Rss