Ending the limbo: the case for ring-fencing EU27 and UK citizens’ rights after Brexit – with a proposed text

Professor Steve Peers, University of Essex*   

Yesterday’s Commission proposal for a text of the Brexit withdrawal agreement may well run in to difficulties and not be approved, due to disagreements over the status of the Irish border or possibly other reasons. In that case, what happens to the provisions on EU27 citizens living in the UK, and UK citizens living in the EU27, before Brexit day?

In order to ensure for them the maximum certainty about their immigration status, there is a strong case to remove these provisions from the main text of the withdrawal agreement and approve them in a separate agreement, so that they are in force no matter what happens to the negotiations on the rest of the withdrawal agreement. Even if such an initiative is not taken forward now (and it cannot be done immediately, since there are still some issues on citizens’ rights that have to be agreed between the parties), it could always be taken forward later if the main talks fail, either before or after Brexit day. (A treaty agreed after Brexit day could provide that it retroactively applies from Brexit Day, if necessary).

Furthermore, pushing for an early separate agreement on this issue could have a positive impact on the overall climate of the negotiations, and the first side to press for it would be showing its goodwill towards the citizens of the other party.

Are there legal issues with this? First of all, it might be argued that Article 50 only refers to a single ‘agreement’.  But it is sometimes accepted that for legal purposes, the singular could also refer to the plural. Secondly, it may turn out to be the case that an agreement on citizens’ rights is the only thing the parties can agree on. In that case, it could reasonably be argued that the drafters of Article 50 were thinking of other issues as well. But it seems bizarre to suggest that Article 50 requires an “all or nothing” approach to the issues arising from withdrawal of a Member State, ruling out its use to resolve only some of those issues.

If a treaty is agreed after Brexit day, it would fall under the immigration provisions of the Treaties. While Article 79(5) TFEU leaves it to Member States to have competence over the numbers of persons coming to their territory to work, this treaty would only concern those who are already present on the territory, so would not infringe upon that national competence.

If there are any doubts about these legal questions, the ECJ could be asked to resolve them already, using its powers under Article 218 TFEU to give an advance ruling on draft treaties before they come into force. With the tabling of the draft agreement, the content of the planned agreement is now precise enough to meet the threshold set by the case law for the ECJ to exercise these powers (it isn’t necessary for negotiations to be complete in order for the Court to have jurisdiction).  

To assist anyone interested in pursuing this idea, I have drafted the text of what a ring-fenced deal could look like. I have used the text of the Commission proposal for the withdrawal agreement, making only those adjustments necessary to take account of the narrower scope of the agreement. For instance, I have deleted all references to a transition period, on the assumption that there would either be no such period (in a “no deal” scenario) or it would be an issue for the main withdrawal agreement (in the “multiple deals” scenario). I mention other necessary changes in comments on the Articles.

For the sake of simplicity, I have not suggested any substantive amendments to the Commission’s text at this time, although I believe that some are desirable and will propose some soon; and in any event the text is likely to be amended during negotiations.

Barnard & Peers: chapter 26, chapter 27, chapter 13

Photo credit: Business Insider

*This blog post was supported by an ESRC priority grant on "Brexit and UK/EU immigration policy" 

Annex – proposed text of Treaty

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 protection of citizens’ rights following 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: I added the words “for the protection of citizens’ rights” to Article 1 of the Commission proposal, due to the narrower scope of this suggested treaty.

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.

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 relevant to this agreement 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: I inserted the words “relevant to this agreement” into para 1(b) for clarity.

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 entry into force of this agreement.

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 entry into force of this Agreement. 

Comments: I have replaced “end of the transition period” with “entry into force of this Agreement” in paragraph 4, and throughout the rest of the text.

Article 5

References to Union law

1. 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 entry into force of this agreement, 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.

Comment: I deleted a cross-reference to Parts Four and Five of the withdrawal agreement from para 1.

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.

Comment: I deleted text relating to institutional issues, since it concerns only the transitional period.

Article 7

Common Travel Area

1. The United Kingdom and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories (the "Common Travel Area"), while fully respecting the rights of natural persons conferred by Union law.

2. The United Kingdom shall ensure that the Common Travel Area and associated rights and privileges can continue to operate without affecting the obligations of Ireland under Union law, in particular with respect to free movement for Union citizens and their family members, irrespective of their nationality, to, from and within Ireland.

Comment: I replaced Article 7 of the Commission proposal, which concerns “Access to network and information systems and data bases”, is replaced by Article 2 of the Protocol on Ireland, since it is relevant to the issue of movement of persons. This also means that the numbering of the text is the same as the Commission proposal, right up until Article 35.

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 entry into force of this Agreement 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 entry into force of this Agreement 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 entry into force of this Agreement 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 entry into force of this Agreement 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.

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 entry into force of this Agreement 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 entry into force of this Agreement 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 entry into force of this Agreement 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 entry into force of this Agreement 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 entry into force of this Agreement and continue to reside there thereafter;

(ii) they resided outside the host State before the entry into force of this Agreement, 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 entry into force of this Agreement, 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 entry into force of this Agreement 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 entry into force of this Agreement 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 entry into force of this Agreement 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.

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).

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.

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.

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 entry into force of this Agreement 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.

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 entry into force of this Agreement 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.

Article 15

Accumulation of periods

Union citizens, United Kingdom nationals, and their respective family members, who before the entry into force of this Agreement 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 entry into force of this Agreement shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.

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 entry into force of this Agreement, shall be maintained even after they cease to be dependent as a result of taking up employment or self-employment in the host State.

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:

(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;

(b) the deadline for submitting the residence document application shall not be less than two years from the entry into force of this Agreement 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;

(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;

(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;

(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;

(h) persons who, before the entry into force of this Agreement, 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 entry into force of this Agreement 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;

(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;

(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 selfemployed;

(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;

(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;

(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 entry into force of this Agreement;

(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 entry into force of this Agreement 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 entry into force of this Agreement and continues to exist thereafter;

(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;

(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;

(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;

(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.

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.

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 entry into force of this Agreement 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 entry into force of this Agreement 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.  

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.

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.

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.

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.

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.

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.

CHAPTER 3

Professional qualifications

Article 25

Recognised professional qualifications

1.  The recognition, before the entry into force of this Agreement, 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.

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 entry into force of this Agreement by Union citizens or United Kingdom nationals and in respect of the decision on any such application.

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.  

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 entry into force of this Agreement 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 entry into force of this Agreement 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 entry into force of this Agreement 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 entry into force of this Agreement 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.

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 entry into force of this Agreement 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 entry into force of this Agreement 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, selfemployment 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.

Article 30

Administrative cooperation

1. 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.  The United Kingdom shall take part in the Electronic Exchange of Social Security Information (EESSI) and bear the related costs.

Comment: I dropped the cross-references to Articles 6 and 7 of the Commission’s proposal.

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 entry into force of this Agreement, 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. 

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.

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.

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.  

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.

PART THREE

INSTITUTIONAL AND FINAL PROVISIONS

TITLE I

CONSISTENT INTERPRETATION AND APPLICATION

Article 36 (ex-Article 151)

References to the Court of Justice of the European Union

Where, in a case which has commenced at first instance within eight years from the entry into force of this Agreement before a court or tribunal in the United Kingdom, a question is raised concerning the interpretation of this Agreement, and where a court or tribunal in the United Kingdom seized with that case considers that a decision on that question is necessary to enable it to give judgment in that case, it may request the Court of Justice of the European Union to give a preliminary ruling on that question. The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings on such requests. The legal effects in the United Kingdom of such preliminary rulings shall be the same as the legal effects of preliminary rulings given pursuant to Article 267 TFEU in the Union and its Member States. 

Article 37 (ex-Article 152)

Monitoring of the implementation and application

The United Kingdom shall set up an independent Authority to monitor the implementation and application of this Agreement. That Authority shall have the power to receive and investigate complaints from Union citizens and their family members, and to conduct inquiries on its own initiative, concerning alleged breaches by administrative authorities of the United Kingdom of their obligations under this Agreement. The Authority may make its findings public. Where it considers that the administrative authority concerned has not acted appropriately on its findings, and without prejudice to any remedies available to the Union citizens or family members concerned, the Authority shall have the right to bring a legal action before a competent court or tribunal in the United Kingdom in an appropriate judicial procedure with a view to seeking adequate redress. The Authority shall inform the European Commission of any such legal actions brought before courts or tribunals in the United Kingdom. It may also consult the European Commission before bringing such legal actions and the European Commission may suggest to the Authority to bring such legal actions.

Article 38 (ex-Article 154)

Submission of statements of case or written observations

Where a court or tribunal of a Member State refers a question concerning the interpretation of this Agreement to the Court of Justice of the European Union for a preliminary ruling, the decision of the national court or tribunal containing that question shall be notified to the United Kingdom. The United Kingdom shall be entitled to submit statements of case or written observations to the Court of Justice of the European Union within two months of such notification.

Article 39 (ex-Article 155)

Participation of the European Commission in cases pending in the United Kingdom

Where the consistent interpretation and application of this Agreement so requires, the European Commission may submit written observations to the courts or the tribunals in the United Kingdom in pending cases where the interpretation of the Agreement is concerned. The European Commission may, with the permission of the court or tribunal in question, also make oral observations. The European Commission shall inform the United Kingdom of its intention to submit observations before formally doing so.

Article 40 (ex-Article 156)

Regular dialogue and exchange of information

In order to facilitate the consistent interpretation of this Agreement and in full deference to the independence of courts, the Court of Justice of the European Union and the United Kingdom's highest courts shall engage in a regular dialogue, analogous to the one which the Court of Justice of the European Union pursues with the highest courts of the Member States.

TITLE II

INSTITUTIONAL PROVISIONS

Article 41 (ex-Article 157)

Joint Committee

1.  A Joint Committee is hereby established, comprising representatives of the Union and of the United Kingdom. The Joint Committee shall be co-chaired by the Union and the United Kingdom.

2.  The Joint Committee shall meet at least once a year or at the request of the Union or the United Kingdom. The Joint Committee shall set its meeting schedule and its agenda by mutual consent.

3.  The Joint Committee shall be responsible for the implementation and application of this Agreement. The Union or the United Kingdom may refer to the Joint Committee any issue relating to the implementation, application and interpretation of this Agreement.

4.  The Joint Committee shall:

(a)  supervise and facilitate the implementation and application of this Agreement;  

(b)  seek appropriate ways and methods of preventing problems that might arise in areas covered by this Agreement or of resolving disputes that may arise regarding the interpretation and application of this Agreement;

(c)  adopt its own rules of procedure;

(d)  consider any matter of interest relating to an area covered by this Agreement;

(e)  adopt decisions and make recommendations as set out in Article 159; 

(f)  adopt amendments to this Agreement in the cases provided for in this Agreement.

5.  The Joint Committee may  take such other action in the exercise of its functions as decided by the Union and the United Kingdom.

6.  The Joint Committee shall issue an annual report on the functioning of this Agreement.

Comments: I deleted references to sub-committees in Article 158 of the Commission proposal, as they are unnecessary in the context of a narrower agreement.

Article 42 (ex-Article 159)

Decisions and recommendations

1.  The Joint Committee shall, for the purposes of this Agreement, have the power to adopt decisions in respect of all matters for which this Agreement so provides and make appropriate recommendations to the Union and the United Kingdom.

2.  The decisions adopted by the Joint Committee shall be binding on the Union and the United Kingdom, and the Union and the United Kingdom shall implement them. They shall have the same legal effect as this Agreement. 

3.  The Joint Committee shall adopt its decisions and make its recommendations by mutual consent. 

TITLE III

DISPUTE SETTLEMENT

Article 43 (ex-Article 160)

Cooperation

The Union and the United Kingdom shall, at all times, endeavor to agree on the interpretation and application of this Agreement, and shall make every attempt through cooperation and consultations to arrive at a mutually satisfactory resolution of any matter that might affect its operation.

Article 44 (ex-Article 161)

Exclusivity

For any dispute between the Union and the United Kingdom arising under this Agreement, the Union and the United Kingdom shall only have recourse to the procedures provided for in this Agreement.

Article 45

Settlement of disputes (ex-Article 162)

1. The Union or the United Kingdom may bring any dispute which concerns the interpretation or application of this Agreement before the Joint Committee.

2. The Joint Committee may settle the dispute through a recommendation. It shall be provided with all information which might be of use in making possible an in-depth examination of the situation, with a view to finding an acceptable solution. To this end, the Joint Committee shall examine all possibilities to maintain the good functioning of the Agreement. 

3. The Joint Committee may, at any point, decide to submit the dispute brought before it to the Court of Justice of the European Union for a ruling. The Court of Justice of the European Union shall have jurisdiction over such cases and its rulings shall be binding on the Union and the United Kingdom.

4. If the dispute has not been settled within three months after it was brought before the Joint Committee and has not been submitted to the Court of Justice of the European Union by the Joint Committee pursuant to paragraph 3, the dispute may be submitted to the Court of Justice of the European Union for a ruling at the request of either the Union or the United Kingdom. The Court of Justice of the European Union shall have jurisdiction over such cases and its rulings shall be binding on the Union and the United Kingdom.

Comment: I deleted a cross-reference to Article 153.

Article 46 (ex-Article 163)

Non-compliance

1. Where the Union or the United Kingdom consider that the other has not taken the necessary measures to comply with the judgment of the Court of Justice of the European Union resulting from proceedings referred to in Article 45, either the Union or the United Kingdom may bring the case before the Court of Justice of the European Union. The Court of Justice of the European Union shall have jurisdiction over such cases and its rulings shall be binding on the Union and the United Kingdom.

2. If the Court of Justice of the European Union finds, in proceedings brought before it pursuant to paragraph 1, that the Union or the United Kingdom, as the case may be, has not complied with its judgement, it may impose a lump sum or penalty payment on it.

Comments: I deleted the prospect of suspending parts of the agreement under the proposed Article 163(3), since it did not apply to citizens’ rights issues.

Article 47 (ex-Article 164)

Procedural rules and powers

Proceedings brought to the Court of Justice of the European Union pursuant to Article 45 or 46 shall be governed by the Rules of Procedure set out in [Annex y+3] to this Agreement.

TITLE IV

FINAL PROVISIONS

Article 48 (ex-Article 166)

Annexes [y to y+x] shall form an integral part of this Agreement

Article 49 (ex-Article 167)

Authentic texts

This Agreement, drawn up in a single original in the Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the Council, which shall transmit a certified copy to the United Kingdom.

Article 50 (ex-Article 168)

Entry into force and application

This Agreement shall enter into force on 30 March 2019.