Tuesday, 3 July 2018

UK citizens in the EU after Brexit: Securing unilateral guarantees after a ‘no deal’ Brexit




Professor Steve Peers, University of Essex*

What happens to EU27 citizens and UK citizens who have moved within the EU in the event of a ‘no deal’ Brexit? In principle their position will be regulated by the withdrawal agreement under negotiations, but since it seems that talks on this agreement are becomingly increasingly difficult the possibility of the UK leaving the EU without any such agreement may have risen. This would leave the two groups of people in limbo, unless an alternative approach to securing their acquired rights is found.

It’s possible that a separate agreement on their rights could be agreed between the UK and the EU: I have suggested a text for such a “ring-fenced” deal here. Another alternative is matching unilateral guarantees. The EU Withdrawal Act, which recently came into force, retains EU27 citizens’ rights in UK law for the time being, and the UK government has already tabled planned changes to the Immigration Rules to give effect to it. This could be matched by national law guarantees for UK citizens in the EU27 States, but for the sake of legal security a better approach would be EU-wide legislation on the issue.

I suggest here a draft Regulation to give effect to that idea. (Denmark would not be covered, so would have to act unilaterally; Ireland could opt in). It is based on the text of the withdrawal agreement (which I commented on here), with several adaptations: retaining free movement for UK citizens who registered under the new system; a cut-off of the withdrawal date (Brexit day), on the assumption that there would be no transition period; and references to UK citizens and their family members only, except where EU27 citizens have been covered by the UK social security system and need recognition of those prior contributions.

It might be questioned whether the EU has the legal competence to adopt laws treating a Member State as a non-Member State before it leaves. However, the Commission has already made several legal proposals on the assumption that the UK is leaving, and if those proposals are legally sound it should follow that this one is also, provided that it does not apply until the withdrawal date. In the event that it were only adopted after the withdrawal date, it could be backdated to ensure that no UK citizens or their family members will be treated as illegal residents. The Regulation would be based on Article 79 TFEU, which gives the EU power to adopt legislation on the legal migration status of non-EU citizens. Although the EU cannot harmonise national law on the numbers of people coming from non-EU countries to seek work (Article 79(5)), this Regulation would concern non-EU citizens already resident on the territory.

Barnard & Peers: chapter 27

Photo credit: ITV news

*Supported by an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'





TITLE I

GENERAL PROVISIONS

Article 1

Objective

This Regulation sets out the rights of United Kingdom nationals and their family members, who exercised rights pursuant to European Union law before the withdrawal of the United Kingdom from the European Union.

Article 2

Definitions

For the purposes of this Regulation, and without prejudice to Title III, the following definitions shall apply:

(a) "family members" means:

(i) 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;

(ii) persons other than those defined in Article 3(2) of Directive 2004/38/EC whose presence is required by Union citizens or United Kingdom nationals in order not to deprive them of a right of residence granted by this Regulation;

irrespective of their nationality and who fall within the personal scope provided for in Article 3 of this Regulation; 

(b) "frontier workers" means 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 the Member State in which the United Kingdom nationals exercised their right of residence in accordance with Union law before the withdrawal date and continue to reside there thereafter;

(d) "State of work" means a Member State in which the United Kingdom nationals pursued an economic activity as frontier workers before the withdrawal date 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, including rights of custody acquired by judgment, by operation of law or by an agreement having legal effect.  

(f) "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;

(g) "Union citizen" means any person holding the nationality of a Member State;

(h) "United Kingdom national" means a national of the United Kingdom, 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’1 together with Declaration No 63 annexed to the Final Act of the intergovernmental conference which adopted the Treaty of Lisbon;

(i) "withdrawal date" means the date on which the United Kingdom ceased to be a Member State, in accordance with Article 50 of the Treaty on European Union.

Article 3

Personal scope

1.  Without prejudice to Title III, this Regulation shall apply to the following persons: 

(a) United Kingdom nationals who exercised their right to reside in a Member State in accordance with Union law before the withdrawal date and continue to reside there thereafter; 

(b) United Kingdom nationals who exercised their right as frontier workers in one or more Member States in accordance with Union law before the withdrawal date and continue to do so thereafter; 

(c) family members of the persons referred to in points (a) to (b), where they fulfil one of the following conditions:

(i) they resided in the host State in accordance with Union law before the withdrawal date and continue to reside there thereafter;

(ii) they were directly related to a person referred to in points (a) to (d) of this paragraph and resided outside the host State before the withdrawal date, 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 Regulation 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 withdrawal date, 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 Regulation 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, 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, 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;

[footnote: The notion of rights of custody is to be interpreted in accordance with point (9) of Article 2 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. Therefore, it covers rights of custody acquired by judgment, by operation of law or by an agreement having legal effect.]

(d) 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 withdrawal date and continue to reside there thereafter.

2. Persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC whose residence was facilitated by the host State in accordance with its national legislation before the withdrawal date in accordance with Article 3(2) of Directive 2004/38/EC shall retain their right of residence in the host State in accordance with this Regulation provided they continue to reside in the host State thereafter.

3. Paragraph 2 also applies to persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who have applied for facilitation of entry and residence before the withdrawal date, and whose residence is facilitated by the host State in accordance with its national legislation after that date.

4. 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, and who resided outside the host State before the withdrawal date, provided that the relationship was durable before the withdrawal date and continues at the time the partner seeks residence under this Regulation.

5. In the cases referred to in paragraphs 3 and 4, 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 4

Continuity of residence

Continuity of residence for the purposes of Articles 2 and 3 shall not be affected by absences as referred to in Article 8(2).

The right of permanent residence acquired under Directive 2004/38/EC before the withdrawal date shall not be treated as lost through absence from the host State for a period specified in Article 8(3).                                                     

Article 5

Non-discrimination

Within the scope of this Regulation 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 3 of this Regulation.

 

TITLE II

RIGHTS AND OBLIGATIONS

CHAPTER 1

Rights related to residence, residence documents

Article 6

Residence rights

1. 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 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, subject to the limitations and conditions set out in those provisions.

3. Family members who are not United Kingdom nationals shall have the right to reside in the host State under Article 21 TFEU and 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, subject to the limitations and conditions set out in those provisions.

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 7

Right of exit and of entry

1. United Kingdom nationals, their respective family members and other persons, residing in its territory in accordance with the conditions set out in this Title shall have the right to leave the host State and the right to enter it as set out in Articles 4(1) and 5(1) first paragraph of Directive 2004/38/EC with a valid passport or national identity card for United Kingdom nationals, and a valid passport for their respective family members who are not Union citizens or United Kingdom nationals.

After five years following the withdrawal date, the host State may decide no longer to accept a national identity card to enter or exit its territory, if the respective national identity card does not include a chip compliant with the applicable International Civil Aviation Organisation standards related to biometric identification. 

2. No exit or entry visa or equivalent formality shall be required for holders of a valid document issued in accordance with Article 11 or 19 of this Regulation.

3.  Where the host State requires family members who join the United Kingdom national after the withdrawal date 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 8

Right of permanent residence

1.  United Kingdom nationals and their 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 to reside permanently in the host State under the conditions set out in Articles 16, 17 and 18 of Directive 2004/38/EC. Periods of legal residence or work in accordance with Union law before and after the withdrawal date 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 9

Accumulation of periods

United Kingdom nationals and their family members who before the withdrawal date 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 to reside permanently under the conditions set out in Article 8 of this Regulation once they have completed the necessary periods of residence. Periods of legal residence or work in accordance with Union law before and after the withdrawal date shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.  

Article 10

Status and changes

1.  The right of United Kingdom nationals and their family members to rely directly on this Regulation shall not be affected when they change status, for example between student, worker, self-employed person and economically inactive person. Persons who, at the withdrawal date, enjoy a right of residence in their capacity as family members of United Kingdom nationals cannot become persons referred to in points (a) to (d) of Article 9(1).

2.  The rights provided for in this Title for the family members, who are dependent on United Kingdom nationals before the withdrawal date, shall be maintained even after they cease to be dependent.  

Article 11

Issuance of residence documents

1.  The host State may require United Kingdom nationals, their family members and other persons residing in its territory in accordance with the conditions set out in this Title, to apply for a new residence status which confers the rights under this Title and a document evidencing such status which may be in a digital form.

Applying for such a residence status shall be subject to the following conditions:

(a) the purpose of the application procedure shall be to verify whether the applicant 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 status and the document evidencing it;

(b) the deadline for submitting the application shall not be less than 6 months from the withdrawal date for persons residing in the host State before the withdrawal date. 

The deadline for persons who have the right to commence residence in the host State in accordance with this Regulation shall be 3 months after their arrival or expiry of the deadline referred to in the first subparagraph, whichever is later.

A certificate of application for the residence status shall be issued immediately;

(c) the deadline for submitting the application referred to in point (b) shall be extended automatically by one year where a Member State has notified Commission that technical problems prevent that State either from registering the application or from issuing the certificate of application referred to in point (b). That Member 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 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, where there are reasonable grounds for the failure to respect the deadline;

(e) the host State shall ensure that administrative procedures for applications 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 Regulation; applications made by families at the same time shall be considered together;

(g) the document evidencing the status 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 withdrawal date, 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 the period referred to in point (b)for a new residence document upon application 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 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. Originals of supporting document can be required only in specific cases where there is a reasonable doubt as to the authenticity of the supporting documents submitted;

(k) the host State may only require 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 self-employed;

(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 establishment accredited or financed by the host State on the basis of its legislation or administrative practice, 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 3(1)(e)(i), 3(2) or 3(3) of this Regulation 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 3(2) or (3) of this Regulation, 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 3(1)(e)(ii) or 3(4) of this Regulation, 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 withdrawal date;

(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 withdrawal date 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 3(4) of this Regulation, proof that a durable relationship with Union citizens or United Kingdom nationals existed before the withdrawal date 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 13 of this Regulation 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 Regulation;

(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 status.

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 not disproportionate.

2.  During the 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 Regulation shall be deemed to apply to United Kingdom nationals, their family members, and other persons residing in the host State in accordance with the conditions and subject to the restrictions set out in Article 13.

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 Regulation shall be deemed to apply to the applicant, including Article 14 on safeguards and right of appeal, subject to the conditions set out in Article 13(4).

4. Where a host State has chosen not to require United Kingdom nationals, their family members, and other persons residing in its territory in accordance with the conditions set out in this Title, to apply for the new residence status referred to in paragraph 1 as a condition for legal residence, those eligible for residence rights under this Title shall have the right to receive, in accordance with the conditions set out in Directive 2004/38/EC, a residence document which may be in a digital form that includes a statement that it has been issued in accordance with this Regulation.  

Article 12

Issuance of residence documents during the transition period

1.  A host State may allow applications for a residence status or a residence document as referred to in Article 17(1) and (4) to be made voluntarily from the date of entry into force of this Regulation.

2.  A decision to accept or refuse such an application shall be taken in accordance with Article 11(1) and (4). A decision under Article 11(1) shall have no effect until the withdrawal date. 

3.  If an application under Article 11(1) is accepted before the withdrawal date, the host State may not withdraw the decision before that date on any grounds other than those set out in Chapter VI and Article 35 of Directive 2004/38/EC.

4.  If an application is refused before the withdrawal date, the applicant may apply again at any time before the expiry of the period set out in Article 11(1)(b).

5.  Without prejudice to paragraph 4, redress procedures under Article 11(1)(r) shall be available from the date of the decision.  

Article 13

Restrictions of the right of residence

1.  Conduct of United Kingdom nationals, their family members or other persons exercising rights under this Title, that occurred before the withdrawal date shall be considered in accordance with Chapter VI of Directive 2004/38/EC.

2.  Conduct of United Kingdom nationals, their family members or other persons exercising rights under this Title, that occurred after the withdrawal date may constitute grounds for restricting the right of residence by the host State or the right of entry in the State of work in accordance with national legislation.

3. The host State or the State of work 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 14 of this Regulation.

4. The host State or the State of work 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 14

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 3 of this Regulation.  

Article 15

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 16

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 Regulation, all United Kingdom nationals residing on the basis of this Regulation in the territory of the host State shall enjoy equal treatment with the nationals of that State within the scope of this Regulation. The benefit of this right shall be extended to family members 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 8 of this Regulation, 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 17

Rights of workers

1.  Subject to the limitations set out in Article 45(3) and (4) TFEU, workers in the host State and frontier workers in the State or States of work shall enjoy the rights guaranteed by Article 45 TFEU or granted by Regulation (EU) No 492/2011 of the European Parliament and of the Council. These rights include:

(a) the right not to be discriminated against on grounds of nationality as regards employment, remuneration and other conditions of work and employment;

(b) 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;

(c) the right to assistance afforded by the employment offices of the host State or the State of work as offered to own nationals;

(d) 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;

(e) the right to tax and social advantages;

(f) collective rights;

(g) the rights and benefits accorded to national workers in matters of housing;

(h) 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, if such children are residing in the territory where the worker works.

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 enjoy the right to enter and exit the State of work in accordance with Article 7 and shall retain the rights they enjoyed as workers there in accordance with Article 7(3) of Directive 2004/38/EC.  

Article 18

Rights of self-employed persons

1.  Subject to the limitations set out in Articles 51 and 52 TFEU, self-employed persons in the host State and self-employed frontier workers in the State or States of work shall enjoy the rights guaranteed by Articles 49 and 55 TFEU. These rights include:

(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 points (c) to (h) of Article 17(1) of this Regulation.

2.  Article 17(2) shall apply to direct descendants of self-employed workers.

3. Article 17(3) shall apply to self-employed frontier workers, without prejudice to Article 27 concerning the scope of rights.  

Article 19

Issuance of a document identifying frontier workers' rights

The State of work may require United Kingdom nationals who have rights as frontier workers under this Title to apply for a document certifying that they have such rights under this Title. Such United Kingdom nationals shall have the right to be issued with such a document.



CHAPTER 3

Professional qualifications

Article 20

Recognised professional qualifications

1.  The recognition, before the withdrawal date, 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 United Kingdom nationals and their family members 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 for the purposes of 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 21

Ongoing procedures on the recognition of professional qualifications

Article 4, Article 4d in respect of recognitions of professional qualifications for establishment purposes, Article 4f and Title III of Directive 2005/36/EC, Article 10(1), (3) and (4) 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 withdrawal date by United Kingdom nationals and in respect of the decision on any such application.

Articles 4a, 4b and 4e of Directive 2005/36/EC shall also apply in so far as relevant for the completion of the procedures for the recognitions of professional qualifications for establishment purposes under Article 4d of Directive 2005/36/EC.

Article 22

Administrative cooperation on recognition of professional qualifications

1. With regard to the pending applications referred to in Article 21, the Member States shall cooperate with the United Kingdom in order to facilitate the application of Article 21. 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 21. 



Title III

Coordination of social security systems

Article 23

Persons covered

1.  This Title shall apply to the following persons:

(a) United Kingdom nationals who are subject to the legislation of a Member State on the withdrawal date, as well as their family members and survivors;

(b) United Kingdom nationals who reside in a Member State, and are subject to the legislation of the United Kingdom on the withdrawal date, as well as their family members and survivors;

(c) persons who do not fall within points (a) to (b) but are United Kingdom nationals who pursue an activity as employed or self-employed person in one or more Member States on the withdrawal date, and who, based on Title II of Regulation (EC) No 883/2004, are subject to the legislation of the United Kingdom, as well as their family members and survivors;

(d) stateless persons and refugees, residing in a Member State, who are in one of the situations described under points (a) to (e), as well as their family members and survivors; 

(3) nationals of third countries, as well as members of their families and survivors, who are in one of the situations described under points (a) to (e), provided that they fulfil the conditions of Council Regulation (EC) No 859/2003.

2. These persons shall be covered for as long as they continue without interruption to be in one of the situations set out in paragraph 1 involving both a Member State and the United Kingdom at the same time.

Article 24

Social security coordination rules

1. The rules and objectives set out in Article 48 TFEU, Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009, shall apply to the persons covered by this Title. 

Member States shall take due account of 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 [Annex II to] this Regulation.

2. By way of derogation from Article 2 of this Regulation, for the purposes of this Title, the definitions in Article 1 of Regulation (EC) No 883/2004 shall apply. 

3.  With regard to the persons referred to in Article 23(1)(g) of this Regulation, the reference to Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 in this Article shall be understood as reference to Regulation (EC) No 1408/71 and Regulation (EC) No 574/72 respectively.  

Article 25

 Special situations covered

1. The following situations, insofar as they relate to persons  not covered by Article 23, shall be covered by this Title only to the extent set out below:

(a) the following persons shall be covered by this Title for the purposes of reliance on and aggregation of periods of insurance, employment, self-employment or residence, including rights and obligations deriving from such periods in accordance with Regulation (EC) No 883/2004:

(i) Union citizens, as well as stateless persons and refugees residing in a Member State and nationals of third countries who fulfil the conditions of Regulation (EC) No 859/2003, who have been subject to the legislation of the United Kingdom before the withdrawal date but are no longer subject to that legislation;

(ii) United Kingdom nationals, as well as stateless persons and refugees residing in the United Kingdom and nationals of third countries who fulfil the conditions of Regulation (EC) No 859/2003, who have been subject to the legislation of a Member State before the withdrawal date but are no longer subject to that legislation; 

For the purposes of aggregation of periods, both periods completed before and after the withdrawal date shall be taken into account in accordance with Regulation (EC) No 883/2004;

(b) the rules set out in Articles 20 and 27 of Regulation (EC) No 883/2004 shall continue to apply to a person who has begun a course of planned health care treatment before the withdrawal date in a Member State, while that State was not the competent State until the end of the treatment. The corresponding reimbursement procedures shall also apply even after the treatment ends. They enjoy the right to enter and exit the State of treatment in accordance with Article 7, mutatis mutandis;

(c) the rules set out in Articles 19 and 27 of Regulation (EC) No 883/2004 shall continue to apply to a person, covered by Regulation (EC) No 883/2004, who is staying at the withdrawal date in a Member State, until the end of the stay. The corresponding reimbursement procedures shall also apply even after the treatment ends;

(d) the rules set out in Articles 67 to 69 of Regulation (EC) No 883/2004 shall continue to apply to awards of family benefit to which there is entitlement on the withdrawal date to Union citizens, stateless persons and refugees residing in a Member State as well as nationals of third countries who fulfil the conditions of Regulation (EC) No 859/2003, residing in a Member State, who are subject to the legislation of a Member State and have family members residing in the United Kingdom on the withdrawal date; 

(e) in the situations set out in Article 25(1)(d)(i) or (ii), for any persons who have rights as family members pursuant to Regulation (EC) No 883/2004, such as derived rights for sickness benefits in kind, the Regulation and the corresponding provisions in Regulation (EC) No 987/2009 shall continue to apply for as long as the conditions provided therein are fulfilled.

2. If, following the grant of a pension or a benefit based on periods of insurance, employment, selfemployment or residence in accordance with point (a) of paragraph 1 of this Article, a Member State is competent for the sickness benefits of a person residing in the United Kingdom, that person, as well as his or her family members and survivors, shall be entitled to sickness benefits as set out in Articles 22 to 30, 33 and 34 of Regulation (EC) No 883/2004 (in the case of a pensioner or a pension claimant), or Articles 17 to 21, 33 and 34 of Regulation (EC) No 883/2004 (in the case of a person receiving a benefit other than pension). The corresponding reimbursement procedures shall apply.

This provision shall apply mutatis mutandis as regards family benefits based on Articles 67 to 69 of Regulation (EC) No 883/2004.  

Article 26

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 Regulation and where those Regulations are amended or replaced after the withdrawal date, the reference to those Regulations shall be read as referring to them as amended or replaced, in accordance with the acts listed in [Annex I] to this Regulation.

2. Regulations (EC) No 883/2004 and (EC) No 987/2009 shall, for the purposes of this Regulation, be understood as comprising the adaptations listed in [Annex II] to this Regulation.

3. The Decisions and Recommendations of the Administrative Commission shall, for the purposes of this Regulation, be understood as comprising the list set out in [Annex I].

TITLE IV

OTHER PROVISIONS

Article 27

Free movement

United Kingdom nationals who have been issued documentation pursuant to Article 11 shall retain the right of free movement to other Member States in accordance with the relevant provisions of the Treaties and the legislation to give them effect.

Article 28

Publicity

The Member States shall disseminate information concerning the rights and obligations of persons covered by this Regulation, in particular by means of awareness-raising campaigns conducted, as appropriate, through national and local media and other means of communication.  

Article 29

More favourable provisions

1. This Regulation 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 5 and Article 16(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 30

Life-long protection

The persons covered by this Regulation shall enjoy the rights provided for therein for their lifetime, unless they cease to meet the relevant conditions.

Article 31

Entry into force and application

1.   This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

2.   It shall apply from the withdrawal date.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, xx date 2018.

2 comments:

  1. The EU have left it to individual states to decide what becomes of UK citizens . So the application process in France may differ greatly from say the one they apply in Spain . Nice of the EU to leave us high and dry .. Especially as the UK has guaranteed EU citizens rights and even announced the application process . Meanwhile UK citizens are still in the dark and at the mercy of each individual state . Doesn't bode well for those in Spain if the Gibraltar row gets worse .

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    Replies
    1. If the withdrawal agreement is approved, Member States would be bound to apply its rules to the acquired rights of UK citizens in the EU27. The UK has 'guaranteed' EU27 citizens' rights in the sense that the Withdrawal Act preserves them, but the EU law which the Act converts into UK law can be amended, and the government has not said what it would want to do on this issue in the event of no deal.

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