Analysis 4 of the revised Brexit withdrawal agreement: citizens’ rights

Professor Steve Peers, University of Essex*   

The issue of the acquired rights of EU27 and UK citizens has long been a focus of this blog. It’s also one of the key issues in the debate over Brexit. I’m revisiting the issue now that there is a proposed revised withdrawal agreement, which consists of a revised Protocol on the Irish border (for a full text of the revised withdrawal agreement following this change, see here) and a revised political declaration on the future relationship. 

This is the fourth in a series of blog posts about the revised withdrawal agreement. The previous posts contained an overview of the agreement, examined the transition period and looked at dispute settlement. (Update: a fifth post, published later, analyses the related political declaration). This is an update of a blog post published last year, concerning a draft of the earlier version of the withdrawal agreement. (Note that the health law implications of the earlier drafts of this part of the agreement were already discussed here by Professor Tamara Hervey, who proposed some additional amendments).

Note that the transition period is particularly relevant to UK citizens in the EU27 and EU27 citizens in the EU, since free movement law would continue to apply during this period. Also there are special rules on dispute settlement for EU27 citizens in the UK (eight years jurisdiction for the CJEU to rule on these issues after the end of the transition period, and a monitoring body to help protect their rights).  See the separate blog posts for more on each of these issues. (Update, May 2020: see also the detailed EU Commission guidance on the interpretation of the citizens' rights provisions).

Summary

This blog post is a detailed annotation of this part of the withdrawal agreement. The main points are that the agreement would preserve most of the acquired rights of EU27 citizens who moved to the UK, and UK citizens who moved to the EU27, before the end of the transition period (which would be the end of 2020, with a possible extension of up to two years).

This would put the persons concerned in a better position than under a no deal situation, in which case they would be subject to national law (and some EU law on the EU27 side), with no comprehensive international treaty framework to underpin those rights. However, in some respects they would be worse than under a continuation of EU membership: there’s a time limit on using more favourable family reunion rights and on return if they leave their country of residence, plus UK citizens lose free movement rights to another Member State, even if they are resident in one already. (UK citizens in the EU27 can try to qualify for a more limited mobility right under the EU’s long-term residence directive, discussed here).

Structure of the withdrawal agreement

Part Two of the withdrawal agreement, and is the main focus of this blogpost. But I also annotate here the closely connected Part One, setting out the “Common Provisions”. The remaining titles concern “separation provisions” (Part Three); the transition (or implementation) period (Part Four, the subject of a separate blog post); the financial settlement (Part Five); and the “Final Provisions” in Part Six (also mostly the subject of a separate blog post, which covers the dispute settlement Articles in Part Six). There are also Protocols on the Irish border, Cyprus and Gibraltar.

Within Part Two, there are four titles:

-          Title I on General Provisions (Articles 9-12), which covers definitions, personal scope, continuity of residence, and non-discrimination;

-          Title II on Rights and Obligations (Articles 13-27), with Chapter 1 on residence rights and documents (Articles 13-23), covering entry and exit rights, residence rights, status, the application process, safeguards and appeal rights, related rights and equal treatment;  Chapter 2 on the rights of workers and self-employed persons (Articles 24-26), Chapter 3 on professional qualifications (Articles 27-29);

-          Title III on Social Security (Articles 30-36); and

-          Title IV on Other Rights (Articles 37-39).

*This blog post was supported by an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'

Barnard & Peers: chapter 27, chapter 13

Photo credit: the Guardian

Annex – revised withdrawal agreement, Parts One and Two, annotated

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 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: Note the withdrawal from Euratom as well as the EU. This is hard, if not impossible, to avoid, for the reasons I discuss here.

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 the Union’s law;  

(iii) the acts adopted by the institutions, bodies, offices or agencies of the Union;

(iv) the international agreements to which the Union is party and the international agreements concluded by the Member States acting on behalf of the Union; 

(v) the agreements between Member States entered into in their capacity as Member States of the Union;

(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 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’ together with Declaration No 63 annexed to the Final Act of the intergovernmental conference which adopted the Treaty of Lisbon;

(e) “transition period” means the period provided in Article 126;

(f) "day" means a calendar day, unless otherwise provided in this Agreement or in provisions of Union law made applicable by this Agreement.

Comments: The definition of “Union law” in Article 2(a) is clarified further in Article 5. It is particularly relevant for Article 4(4), which requires that CJEU case law on Union law before the end of the transition/implementation period must be applicable.

The definition of “Member States” in (b) is straightforward, although Article 7 and the transition period provisions then go on to define the UK as a Member State for many purposes. Note that the definition is “frozen” by reference to the current EU27 countries; the UK would thus not be bound to protect the rights of citizens of countries that join the EU in future (logically enough, since they do not have EU law rights to protect at the time of the UK’s withdrawal). Conversely, the UK would be bound to keep protecting the rights of citizens of any other countries that might leave the EU.

Since the withdrawal agreement does not cover the position of citizens of non-EU countries whose migration status may derive from EU law, besides family members of EU27/UK citizens, their position depends upon the “rolling over” of any such treaties so that they continue to apply to the UK during the transition period, and then separately after that date.

Point (c) confirms the orthodox view that UK citizens lose their EU citizenship upon Brexit day, since the Treaties state that only nationals of Member States are citizens of the EU. However, it should be noted that this interpretation was challenged.

Point (d) refers to UK declarations on the exact scope of its citizenship. The CJEU has ruled on this issue in the Kaur case, accepting the UK’s decision to define various groups of people as not actually UK citizens.

As for point (e), as noted above the transition period ends at the end of 2020, with the possibility of an extension up to one or two years.

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) Gibraltar, to the extent that Union law was applicable to it before the date of entry into force of this Agreement;

(c) the Channel Islands and the Isle of Man, to the extent that Union law was applicable to them before the date of entry into force of this Agreement;

(d) the Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus, to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union;

(e) 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: Article 355 TFEU refers to the territorial scope of the Treaties. Alongside the UK in point (1)(a), point (1)(d) includes cross-references to accession treaties as regards the status of the Cyprus bases. The withdrawal agreement has a separate protocol on these bases. Other territories will be affected by the withdrawal agreement to the extent they are covered by EU law already, which they are in part in different ways. For instance, see the CJEU judgment in Buhagiar, on which part of EU law applies in Gibraltar. As for the overseas countries and territories in (1)(e), a footnote lists them as: Anguilla, Bermuda, British Antarctic Territory, British Indian Ocean Territory, British Virgin Islands, Cayman Islands, Falkland Islands, Montserrat, Pitcairn, Saint Helena, Ascension and Tristan da Cunha, South Georgia and the South Sandwich Islands, and Turks and Caicos Islands.

Article 4

Methods and principles relating to the effect, the implementation and the application of this Agreement

1. The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States.

Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.

2. The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.

3. The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall be interpreted and applied in accordance with the methods and general principles of Union law.

4. The provisions of this Agreement referring to Union law or to 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 end of the transition period.

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 end of the transition period.

Comments: Article 4 aims to reproduce the legal effect of EU law covered by the withdrawal agreement within the UK domestic legal order. It is particularly important for the transition period and for the citizens’ rights provisions. Note the obligation to adopt primary legislation to give effect to the agreement, which would be the subject of an Act of Parliament in the event that the UK heads for ratification.

Article 4(3) is a general provision, supplemented by the following two paras, on the interpretation of the entire agreement in conformity with EU law principles. Article 4(4) means that CJEU case law up until the end of the transition period will be binding. Note that Article 2(a) defines “Union law” for the purposes of the agreement; Article 5 clarifies this issue further.

Article 4(5), on the other hand, gives only a persuasive effect to CJEU case law after that point. Note, however, that the CJEU has special jurisdiction over citizens’ rights for eight years after the end of the transition period.  

Note that the Protocol on Ireland applies some provisions of Article 4 to that Protocol, but has different rules for others.

ARTICLE 5

Good faith

The Union and the United Kingdom shall, in full mutual respect and good faith, assist each other in carrying out tasks which flow from this Agreement.

They shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising from this Agreement and shall refrain from any measures which could jeopardise the attainment of the objectives of this Agreement.

This Article is without prejudice to the application of Union law pursuant to this Agreement, in particular the principle of sincere cooperation.

Comments: Article 5 is similar to the good faith provisions that apply to Member States. This provision, however, only relates to the withdrawal agreement.

Article 6

References to Union law

1. With the exception of Parts Four and Five, unless otherwise provided in this Agreement all references in this Agreement to Union law shall be understood as references to Union law, including as amended or replaced, as applicable on the last day of the transition period.

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 law or provisions thereof that, although replaced or superseded 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.

Comments: Effectively Article 5 supplements the definition of “Union law” in article 2(a), and the two provisions should be read together. It is also very relevant to the interpretation rules in Article 4. The exception in Article 5(1) for Parts Four and Five of the agreement refers to the transition period and the financial settlements rules; the exception “unless otherwise provided in this Agreement” refers to changes such as the amendments to social security rules, referred to in Part Two on citizens’ rights, and the Protocol on Ireland, which has a different rule than Article 6(1).

As regards citizens’ rights, the following provisions of Union law are referred to: Article 2(2), Directive 2004/38 (Articles 9(a) and 10(1)(e)); Articles 45 and 49 TFEU (Article 9(b)); Article 2(9), Regulation 2201/2003 (Article 9(e)); Articles 12, 13, 16(2), 17 and 18, Directive 2004/38 (Article 10(1)(f)); Article 3(2), Directive 2004/38 (Article 10(2) and (3)); Article 18 TFEU (Article 12); 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 (Article 13(1)); 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 (Article 13(2)); Articles 4(1) and 5 (1), Directive 2004/38/EC (Article 14(1)); Articles 16, 17 and 18, Directive 2004/38/EC (Article 15(1)); Articles 16(3) and 21, Directive 2004/38/EC (Article 15(2)); Article 7, Directive 2004/38/EC (Article 16); Articles 2(2)(c) or (d), 3(2), 7(1)(a), (b) and (c) and (2), 8(3), (4) and (5), 10(2), 19, 20 and 27(3), Directive 2004/38/EC (Article 18); Chapter VI and Articles 31 and 35, Directive 2004/38/EC (Article 19); Article 15 and Chapter VI of Directive 2004/38/EC (Article 20); Article 23 of Directive 2004/38/EC (Article 21); Article 24 of Directive 2004/38/EC (Article 22(1)); Articles 6 and 14(4)(b) of Directive 2004/38/EC (Article 22(2)); Article 45 TFEU and Regulation 492/2011 (Article 23); Article 49 TFEU (Article 24(1)); Directives 2005/36, 98/5, 2006/43 and 74/556 (Articles 26 and 27); Regulations 1231/2010 and 859/2003 (Article 29); Regulations 883/2004 and 987/2009 (Articles 29, 30 and 32);

Article 7

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, except as regards: 

(a) the nomination, appointment or election of members of the institutions, bodies, offices and agencies of the Union, as well as the participation in the decision-making and the attendance in the meetings of the institutions;

(b)  the participation in the decision-making and governance of the bodies, offices and agencies of the Union;

(c)  the attendance in the meetings of the committees referred to in Article 3(2) of Regulation (EU) No 182/2011 of the European Parliament and of the Council, of Commission expert groups or of other similar entities, or in the meetings of expert groups or similar entities of bodies, offices and agencies of the Union, unless otherwise provided in this Agreement. 

2. Unless otherwise provided in this Agreement, any reference to the Union shall be understood as including Euratom.

Comment: While the definition of “Member States” in Article 2(b) excludes the UK, Article 7 then qualifies that significantly by effectively making the UK a Member State as regards the substantive law of the EU, but not the institutional law of the EU, for the purposes of the withdrawal agreement.

The provisions on the transition period go into more details on this point. There are also derogations from Article 7 in as regards some financial settlement issues and in the Protocol on Ireland.

While the Treaties only refer to Member States as having a full decision-making role within EU institutions, there is nothing to rule out consultation with non-Member States. Indeed, the Schengen association agreement with Norway and Iceland gives them consultation rights at ministerial level. The notion that the UK is expected to apply new EU law (see Article 6) without even being informally consulted on the relevant proposals is therefore problematic.

Article 8

Access to network and information systems and data bases

Unless otherwise provided in this Agreement, at the end of the transition period the United Kingdom shall cease to be entitled to access any network, any information system and any database established on the basis of Union law. The United Kingdom shall take appropriate measures to ensure that it does not access a network, information system or database which it is no longer entitled to access.

Comment: This ends the UK’s access to databases and information systems – particularly relevant to justice and home affairs issues – at the end of the transition period. It would be possible to continue access on the basis of a future security treaty, as discussed here. There are derogations from this Article in several provisions.

PART TWO

CITIZENS’ RIGHTS

TITLE I

GENERAL PROVISIONS

Article 9

Definitions

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

(a) "family members" means the following persons, irrespective of their nationality, who fall within the personal scope provided for in Article 10 of this Agreement:

(i) family members of Union citizens or family members of 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 those Union citizens or United Kingdom nationals of a right of residence granted by this Part;

(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 and their family members, the United Kingdom, if they exercised their right of residence there in accordance with Union law before the end of the transition period and continue to reside there thereafter;

(ii) in respect of United Kingdom nationals and their family members, the Member State in which they exercised their right of residence in accordance with Union law before the end of the transition period and in which they continue to reside 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 end of the transition period and continue to do so thereafter;

(ii) in respect of United Kingdom nationals, a Member State in which they pursued an economic activity as frontier workers before the end of the transition period and in which they 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.

Comments: The reference to special rules in Title III reflects a derogation from Article 9(a) since EU social security law has its own definition of family members.

To interpret Article 9(a) of the agreement, note that Article 2(2) of the citizens’ Directive, referred to here, defines core family members as follows:

(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b).

The interpretation of the EU law definition of “family member” must follow CJEU case law: see Articles 4 and 5. The relevant case law includes the Coman case on whether same-sex spouses are covered by the definition of “spouse” (they are: see discussion here), and the case law on the definition of “dependence” (see discussion of the most recent case law here).

Two important issues arise from Article 9(a). First of all, the CJEU ruled in Lounes (discussed here) that dual citizens of two Member States can claim rights in one of those Member States if they have moved between them.

Secondly, in a line of case law starting in Zambrano (discussed here), the EU ruled that where children live in the Member State of their nationality but have a non-EU parent with caring obligations for the child, the non-EU parent cannot be removed (except on public security etc grounds) as it would infringe the child’s EU citizenship rights. It might be argued that this category of persons is not covered by Article 9(a).

The same is true of family members of EU27 or UK citizens who return to their state of nationality (see the Surinder Singh and Eind case law, discussed here). A fourth line of case law – on the children of workers and their carers – is addressed by Article 23 of the Agreement).

The definitions of “frontier worker” and “rights of custody” in Article 9(b) and (e) are also EU law concepts, where the CJEU case law must be applied in accordance with Articles 5 and 6. As for the latter rule, Article 2(9) of the Brussels IIa Regulation states that “the term "rights of custody" shall include rights and duties relating to the care of the person of a child, and in particular the right to determine the child's place of residence.”

Note that these definitions are only applicable to the citizens’ rights rules in part Two; other definitions applicable to the entire agreement (including the citizens’ rights Part) appear in Article 2.

Article 10

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 end of the transition period 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 end of the transition period 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 end of the transition period 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 end of the transition period and continue to do so thereafter;

(e) family members of the persons referred to in points (a) to (d), provided that they fulfil one of the following conditions:

(i) they resided in the host State in accordance with Union law before the end of the transition period and continue to reside there thereafter;

(ii) they were directly related to a person referred to in points (a) to (d) and resided outside the host State before the end of the transition period, 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 were born to, or legally adopted by, persons referred to in points (a) to (d) after the end of the transition period, whether inside or outside the host State, and 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;

[Note: “The notion of rights of custody is to be interpreted in accordance with point (9) of Article 2 of Regulation (EC) No 2201/2003. Therefore, it covers rights of custody acquired by judgment, by operation of law or by an agreement having legal effect.”]

(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 end of the transition period 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 end of the transition period in accordance with Article 3(2) of that Directive shall retain their right of residence in the host State in accordance with this Part, provided that they continue to reside in the host State thereafter.

3. Paragraph 2 shall also apply 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 end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter.

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) of paragraph 1 of this Article has a durable relationship, duly attested, where that partner resided outside the host State before the end of the transition period, provided that the relationship was durable before the end of the transition period and continues at the time the partner seeks residence under this Part.

5. In the cases referred to in paragraphs 3 and 4, the host State shall undertake an extensive examination of the personal circumstances of the persons concerned and shall justify any denial of entry or residence to such persons.

Comment: The reference to Title III as a lex specialis can be explained by the different personal scope of social security law.

Article 10(1) reflects, like Article 9(c), a limitation on the scope of the agreement by means of the words “and continue to reside there thereafter”. While the UK government intends to protect family members of UK citizens covered by the Surinder Singh case law in national law, that does not adequately protect their rights, since it is possible that they will later be subject to the “hostile environment” of UK immigration law.

As for Article 10(1)(e), on core family members: point (i) covers those already resident before the end of the transition period on the basis of EU law, which as broadly defined by Article 2, covers also EU immigration and asylum law. Point (ii) covers those who resided outside the host State before that date, who can still seek entry on the basis of Article 2(2) of the Directive, as long as they had a relationship before then. Point (iii) covers children born to or adopted by EU27 or UK citizens or their family members after that date, regardless of where they were born, as long as they are under 21 or dependent as defined by EU law. This includes cases where one parent is an EU27/UK citizen and the other is a UK national, and where one parent is covered by the Agreement and has sole or joint rights of custody (which was defined in Article 9). 

Note also that Article 10(1)(f) protects family members who were present as permanent residents or pursuant to the family breakdown rules in the EU Directive before the end of transition period. Moreover, Article 23 covers a group of children and carers who will in some cases fall outside the scope of this Article.  

Article 10(2) to (5) set out rules for extended family members, as defined by reference to Article 3(2) of the citizens Directive. The persons concerned are: (a) “any other family members, irrespective of their nationality, not falling under the definition” in Article 2(2) who, “in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen”; and (b) “the partner with whom the Union citizen has a durable relationship, duly attested”.

It is sometimes falsely suggested that the list of extended family members in EU free movement law is unlimited, and that there is an obligation to admit them. Neither claim is true, as the obligation to “facilitate entry and residence” is not a right of admission as such, as confirmed by the CJEU in its judgment in Rahman. (See also Banger).

In any event, the agreement will curtail the limited rights of extended family members significantly. Article 10(2) only continues the “facilitation” obligation if the family members concerned resided in the host State on that basis before the end of the transition period and continue to reside there afterwards. Article 10(3) extends this to pending applications. Article 10(4) allows slightly more protection for duly attested partners, but the facilitation obligation for them still applies only where “the relationship was durable before the end of the transition period and continues at the time the partner seeks residence under this Part.” If the couple concerned chooses to marry (if that option is possible) then they would fall within the scope of Article 10(1).

Article 11

Continuity of residence

Continuity of residence for the purposes of Articles 9 and 10 shall not be affected by absences as referred to in Article 15(2). The right of permanent residence acquired under Directive 2004/38/EC before the end of the transition period shall not be treated as lost through absence from the host State for a period specified in Article 15(3).

Comment: The first sentence says that the rules on continuity of residence, which are applied to acquisition of permanent residence as in Article 15 of the agreement, do not apply to any issues of continuity of residence which may arise from Articles 9 or 10. The second sentence means that permanent residents who held that status before the end of the transition period cannot lose that status due to five years’ absence. 

Article 12

Non-discrimination

Within the scope of this Part, 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 10 of this Agreement.

Comment: This Article copies the wording of Article 18 TFEU, first subparagraph, and refers to it also, so the relevant CJEU case law will apply. Note that other non-discrimination clauses appear in Articles 22 and 23 of this agreement.

TITLE II

RIGHTS AND OBLIGATIONS

CHAPTER 1

Rights related to residence, residence documents

Article 13

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), points (a), (b) or (c) of Article 7(1), 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), point (d) of Article 7(1), 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 neither Union citizens nor 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 or conditions for obtaining, retaining or losing residence rights on the persons referred to in paragraphs 1, 2 and 3, other than those provided for in this Title. There shall be no discretion in applying the limitations and conditions provided for in this Title, other than in favour of the person concerned. 

Comments: This Article sets out the core right to stay on the territory for EU27/UK citizens and their family members. It is not absolute, since it is subject to the process of confirming status after Brexit (Article 18) and removal in the event of criminality (Article 19); and the persons concerned must meet the conditions for residence in the first place. These conditions are generous, but not unlimited; in particular there is no right to stay solely on the basis of receiving social benefits from the outset. 

More precisely, Article 13(1) refers to the EU law rules on citizenship and free movement (Article 21 TFEU), free movement of workers (Article 45 TFEU), free movement of self-employed people (Article 49 TFEU), initial stays (Article 6(1), citizens’ Directive), stays after three months (Article 7(1)(a) to (c), citizens’ Directive), stays as a former worker (Article 7(3)); stays looking for work (Article 14, citizens’ Directive), and permanent residence (Article 16(1) or Article 17(1), citizens’ Directive). On former workers, note that the EU law applies to those who take a break for maternity, even if they switch employers at that time under certain conditions (see discussion here and the recent case law on self-employed workers discussed here); it also covers the self-employed (see the Pusa judgment), but not those who become unemployed shortly after arriving and run out of time to find replacement work (see discussion here). While non-economic migrants need “sufficient resources” to stay, the case law makes clear that this can be provided by others, for instance a spouse or partner.

Article 13(2) of the agreement sets out the corresponding rules for family members who are EU or UK citizens, while Article 13(3) of the agreement sets out the corresponding rules for family members who are not EU or UK citizens. Note that Articles 12 and Article 13 of the citizens’ Directive, referred to here, concern stays after family breakdown, while Article 18 of that Directive grants permanent residence rights to those who stayed on the basis of those provisions. (On the most recent CJEU judgment on the family breakdown rules, see the discussion here).

All these references to EU law are subject to the interpretation rules in Articles 4 and 5. Article 13(4) removes any state discretion over “obtaining, maintaining or losing residence rights” besides the possibilities set out in this Title.    

Article 14

Right of exit and of entry

1. Union citizens and United Kingdom nationals, their respective family members, and other persons, who reside in the territory of the host State 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 Article 4(1) and the first subparagraph of Article 5(1) of Directive 2004/38/EC, with a valid passport or national identity card in the case of Union citizens and United Kingdom nationals, and with a valid passport in the case of their respective family members and other persons who are not Union citizens or United Kingdom nationals.

Five years after the end of the transition period, the host State may decide no longer to accept national identity cards for the purposes of entry to or exit from its territory if such cards do not include a chip that complies with the applicable International Civil Aviation Organisation standards related to biometric identification.

2. No exit visa, entry visa or equivalent formality shall be required of holders of a valid document issued in accordance with Article 18 or 26. 

3. Where the host State requires family members who join the Union citizen or United Kingdom national after the end of the transition period 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.

Comments: The first sentence of Article 14(1) matches – and cross-refers to – Article 4(1) and the first sub-paragraph of 5(1) of the citizens’ Directive. However, the second sentence of Article 14(1) is not the same as Article 4(2) or the second sub-paragraph of Article 5(1) of that Directive, since it limits the exemption from an entry visa or similar document only for those who hold a new residence document on the basis of Article 18 (the “settled status” clause) or Article 25 (document for frontier workers) of the agreement.

Article 14(2) can be compared to Article 5(2) of the Directive, which also provides for exemption of the visa requirement if the person has a residence card, and covers short-term visits (see the 2014 McCarthy judgment, discussed here).

There is no equivalent to Article 4(3) and (4) of the Directive, concerning the issue of passports or identity cards to nationals. Nor is there any equivalent to: Article 5(3) of the Directive, banning entry or exit stamps in passports of those non-EU family members holding a residence card; Article 5(4) of the Directive, giving people the opportunity to obtain travel documents or visas; or Article 5(5) of the Directive, an option to require reporting presence, which can be made subject to proportionate and non-discriminatory sanctions.    

 Article 15

Right of permanent residence

1. Union citizens and United Kingdom nationals, and their respective family members, who have resided legally in the host State in accordance with Union law for a continuous period of 5 years or for the period 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 end of the transition period 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 5 consecutive years.

Comment: Article 15(1) incorporates the main rule on acquiring permanent residence in Article 16 of the citizens’ Directive, as well as the subsidiary rules in Articles 17 and 18 of that law. The second sentence confirms that times of employment both before and after the end of the transition period will count.

An important point here is that Article 15(1) refers to time present on the basis of EU law, as defined broadly by Article 2(a), not only to time spent on the basis of the Directive. This is broader than the case law of the ECJ, which says that only time spent on the basis of the Directive counts (see the Alarape and Tijani judgment). (There are other forms of legal stay under EU law: see Article 23 of this agreement, for instance. And “EU law” could also, for non-EU family members, refer to residence on the basis of EU immigration or asylum law applicable to non-EU citizens).  However, Article 16 of this Agreement, confusingly, refers only to time spent on the basis of the Directive, reflecting the wording of the case law again.

Note that Article 16(1) of the Directive goes on to say that: “This right shall not be subject to the conditions provided for in Chapter III”, ie the rules on the initial five-year stay. This is implicitIy incorporated into Article 15(1) of the agreement by the cross-reference to Article 16 of the Directive. Indeed the cross-reference to EU law incorporates all the relevant case law, except arguably the Alarape and Tijani case due to the different wording.

The cross-reference in Article 15(1) of the agreement also includes Article 16(2) of the Directive, which grants permanent residence to non-EU family members who “have legally resided with the Union citizen in the host Member State for a continuous period of five years”; Article 17 of the Directive, which grants permanent residence after a shorter period in the event of retirement, death or accident at work; and Article 18 of the Directive, which gives permanent residence to non-EU family members in the event of family breakdown referred to in Articles 12 and 13 of the Directive (see Article 13 of this agreement).

Article 15(2) of the agreement, concerning continuity of residence, incorporates Article 16(3) of the Directive, which provides:

Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

It also incorporates Article 21 of the Directive, which provides:

…continuity of residence may be attested by any means of proof in use in the host Member State.  Continuity of residence is broken by any expulsion decision duly enforced against the person concerned.

Article 15(3) of the agreement, on loss of the status, is identical to Article 16(4) of the citizens’ Directive, except that the relevant period is five years, not two as in the Directive. Nevertheless, the persons concerned still have lesser protection overall, since under the Directive they could always exercise free movement rights from scratch if they met the criteria in Article 7 of the Directive. Post-Brexit they cannot.

Article 16

Accumulation of periods

Union citizens and United Kingdom nationals, and their respective family members, who before the end of the transition period resided legally in the host State in accordance with the conditions of Article 7 of Directive 2004/38/EC for a period of less than 5 years, shall have the right to acquire the right to reside permanently under the conditions set out in Article 15 of this Agreement once they have completed the necessary periods of residence. Periods of legal residence or work in accordance with Union law before and after the end of the transition period shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.

Comment: It is hard to see how to distinguish this Article from Article 15(1) of this agreement, which it differs from only by referring explicitly to residence on the basis of the citizens’ Directive, rather than EU law more generally. While Article 16 only covers those who do not yet qualify for permanent residence at the end of the transition/implementation period, Article 15(1) must cover them too, since it also refers to periods of residence after that date.

Article 17

Status and changes

1. The right of Union citizens and United Kingdom nationals, and their respective family members, to rely directly on this Part shall not be affected when they change status, for example between student, worker, self-employed person and economically inactive person. Persons who, at the end of the transition period, enjoy a right of residence in their capacity as family members of Union citizens or United Kingdom nationals, cannot become persons referred to in points (a) to (d) of Article 10(1).

2. The rights provided for in this Title for the family members who are dependants of Union citizens or United Kingdom nationals before the end of the transition period, shall be maintained even after they cease to be dependants. 

Comment: The right of EU citizens or their family members to change the basis of their stay (provided that they still comply with the criteria for residence under EU law) is not explicitly referred to in the citizens’ Directive, but has always been protected in practice under the CJEU case law.

Article 18

Issuance of residence documents

1. The host State may require Union citizens or United Kingdom nationals, their respective family members and other persons, who reside 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.

Comment: This is the “settled status” clause. Note that it is optional for the UK or EU27 Member State to apply it. Obviously the UK at least is doing so. Note that holding the document as a condition enjoying rights diverges from Article 25 of the citizens’ directive, which states that holding forms cannot be a precondition for having any form of status under the Directive. The pledges of “no less favourable status” and “automatic indefinite leave to remain” for EU27 citizens in the UK have therefore been breached.

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 that status;

Comment: There is no overall discretion to refuse the document if the applicant can prove their entitlement to status, as Article 13(4) states.

(b) the deadline for submitting the application shall not be less than 6 months from the end of the transition period, for persons residing in the host State before the end of the transition period.

For persons who have the right to commence residence after the end of the transition period in the host State in accordance with this Title, the deadline for submitting the application shall be 3 months after their arrival or the 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;

Comment: This resembles Article 8(2) of the citizens’ Directive, which has a three-month minimum deadline. It goes on to state that the certificate of application must state “the name and address of the person registering and the date of the registration” and that “[f]ailure to comply with the registration requirement may render the person concerned liable to proportionate and non-discriminatory sanctions”. Note that if the transition period is extended, this deadline is extended too. At a minimum the deadline is June 30 2021.

(c) the deadline for submitting the application referred to in point (b) shall be extended automatically by 1 year where the Union has notified the United Kingdom, or the United Kingdom has notified the Union, 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 persons concerned in good time;

Comment: This is new compared to the citizens’ Directive. A one-year extension may prove to be useful in practice.

(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 shall allow those persons to submit an application within a reasonable further period of time if there are reasonable grounds for the failure to respect the deadline;

Comment: The “try again” clause is new compared to the citizens’ Directive. It could be useful in practice but is not clearly drafted as a right of the person concerned. Presumably point (r) grants a right of redress in the event of refusal here.

(e) the host State shall ensure that any 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 adapted to the context of this Agreement; 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 of the host State for the issuing of similar documents;

Comment: The cost clause resembles Article 25(2) of the citizens’ Directive. Note the exemption in (h) however. The UK has chosen to waive fees.

(h) persons who, before the end of the transition period, hold a valid permanent residence document issued under Article 19 or 20 of Directive 2004/38/EC or hold 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) of this paragraph 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 their ongoing residence; such new residence documents shall be issued free of charge;

Comment: Those who already hold documentation of permanent residence have an option to apply again. There is an exemption from costs and there are limited grounds to refuse.

(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 through the presentation of a valid passport for their respective family members and other persons 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 the validity of the document. 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, before the decision on the application has been taken;

Comment: this partly reflects the wording of Article 8(3) of the citizens Directive. Note the requirement to return passports or identity cards.

(j) supporting documents other than identity documents, such as civil status documents, may be submitted in copy. Originals of supporting documents may 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 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 point (a) of Article 7(1) 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 point (b) of Article 7(1) 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 that they have comprehensive sickness insurance cover in the host State; or 

(iii) where they reside in the host State in accordance with point (c) of Article 7(1) 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, proof of comprehensive sickness insurance cover, and a declaration or equivalent means of proof, 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 such declarations 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;

Comment: This copies – and cross-refers to – the criteria and process in the citizens’ Directive. The underlying problem here is the UK’s insistence that NHS cover does not count as “comprehensive sickness insurance”. While the UK has promised to waive this requirement, this is in principle not an enforceable right and there is a risk that the Agreement could be interpreted as meaning that the persons concerned are not covered by it at all.  

(l) the host State may only require family members who fall under point (e)(i) of Article 10(1) or Article 10(2) or (3) of this Agreement and who reside in the host State in accordance with point (d) of Article 7(1) or Article 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 Article 8(5) or 10(2) of Directive 2004/38/EC:

(i) a document attesting to the existence of a family relationship or registered partnership;

(ii) the registration certificate or, in the absence of a registration system, any other proof that the Union citizen or the United Kingdom national with whom they reside actually resides in the host State;

(iii) for direct descendants who are under the age of 21 or who 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 point (c) or (d) of Article 2(2) of Directive 2004/38/EC are fulfilled;

(iv) for the persons referred to in Article 10(2) or (3) 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;

Comment: This copies – and cross-refers to – the criteria and process in the citizens’ Directive.

(m) the host State may only require family members who fall under point (e)(ii) of Article 10(1) or Article 10(4) of this Agreement 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) 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 a registered partnership before the end of the transition period;

(iv) for direct descendants who are under the age of 21 or who 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 end of the transition period and fulfil the conditions set out in point (c) or (d) of Article 2(2) of Directive 2004/38/EC relating to age or dependence; 

(v) for the persons referred to in Article 10(4) of this Agreement, proof that a durable relationship with Union citizens or United Kingdom nationals existed before the end of the transition period and continues to exist thereafter;

Comment: This copies – and cross-refers to – the criteria and process in the citizens’ Directive.

(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;

Comment: This presumably refers to those covered by Article 23 – children of workers and their carers.

(o) the competent authorities of the host State shall help the applicants to prove their eligibility and to avoid any errors or omissions in their applications; they shall give the applicants the opportunity to furnish supplementary evidence and to correct any deficiencies, errors or omissions;

Comment: This would be a useful procedural protection in practice.

(p) criminality and security checks may be carried out systematically on applicants, with the exclusive aim of verifying whether the restrictions set out in Article 20 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, if it considers this essential, apply the procedure set out in Article 27(3) of Directive 2004/38/EC with respect to enquiries to other States regarding previous criminal records; 

Comment: Note that Article 27(3) of the citizens’ Directive states that such checks will not be made “as a matter of routine”.

(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 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. Such redress procedures shall ensure that the decision is not disproportionate.

Comment: the second sentence reflects Article 31(3) of the citizens’ Directive, although there is no cross-reference to it, and the reference to the high threshold for expulsion in Article 28 of that Directive has been dropped.

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 that paragraph, all rights provided for in this Part shall be deemed to apply to Union citizens or United Kingdom nationals, their respective family members, and other persons residing in the host State, in accordance with the conditions and subject to the restrictions set out in Article 20.

Comment: A useful ban on the Home Office, or any EU27 countries, “jumping the gun”.

3. Pending a final decision by the competent authorities on any application referred to in paragraph 1, and pending 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 21 on safeguards and right of appeal, subject to the conditions set out in Article 20(4).

4. Where a host State has chosen not to require Union citizens or 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 Agreement.

ARTICLE 19

Issuance of residence documents during the transition period

1. During the transition period, a host State may allow applications for a residence status or residence document as referred to in Article 18(1) and (4) to be made voluntarily from the date of entry into force of this Agreement.

2. Decisions to accept or refuse such applications shall be taken in accordance with Article 18(1) and (4). Decisions under Article 18(1) shall have no effect until after the end of the transition period.

3. If an application under Article 18(1) is accepted before the end of the transition period, the host State may not withdraw the decision granting the residence status before the end of the transition period 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 end of the transition period, the applicant may apply again at any time before the expiry of the period set out in point (b) of Article 18(1).

5. Without prejudice to paragraph 4, the redress procedures under point (r) of Article 18(1) shall be available from the date of any decision to refuse an application referred to in paragraph 2 of this Article.

Comment: this Article provides that applications for “settled status” can be made from the entry into force of the withdrawal agreement. In fact, the UK version of this scheme has already started. But it confirms that refusals can only be made in accordance with the EU citizens’ Directive. Article 185 states that this provision applies from entry into force of the withdrawal agreement.

Article 20

Restrictions of the rights of residence and entry

1. The conduct of Union citizens or United Kingdom nationals, their family members, and other persons, who exercise rights under this Title, where that conduct occurred before the end of the transition period, shall be considered in accordance with Chapter VI of Directive 2004/38/EC.

2. The conduct of Union citizens or United Kingdom nationals, their family members, and other persons, who exercise rights under this Title, where that conduct occurred after the end of the transition period, 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 the 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 21 of this Agreement.

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 the case of judicial redress sought against any rejection of such an application.

Comment: Due to the cross-reference, the case law on these provisions of the citizens’ Directive will apply. Chapter VI of that law contains substantive rules limiting expulsion on grounds of public policy, public security and public health, particularly in Articles 27-29; there is substantial case law on these rules and on the predecessor law. It will be necessary to establish when conduct took place before the end of the transition period (Article 20(1)) and when it took place afterward, so national law applies (Article 20(2)).

As for Article 20(3), the case law on Article 35 of the Directive interprets that rule narrowly (see Metock and the 2014 McCarthy judgment, discussed here). The reference to procedural protection in such cases is then undermined by Article 20(4), which refers to expulsion before a final judgment, referring to Article 31 of the Directive. But Article 31 only allows removal from the territory, if the person concerned has applied for an interim order, in a limited number of cases: an expulsion decision based on a prior judicial decision; if there was prior access to judicial review; or where the expulsion is based on “imperative grounds of public security” as defined in the Directive. None of these cases correspond to Article 35 of the Directive. Possibly this means that a person who is being excluded on the basis of Article 35 can have fewer procedural rights only where that person also falls within the scope of the exclusions in Article 31.

Article 21

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 by the host State that restricts residence rights of the persons referred to in Article 10 of this Agreement.

Comment: Due to the cross-reference, the case law on these provisions of the citizens’ Directive will apply. Chapter VI of that law contains rules on notification of decisions (Article 30), stay on the territory (Article 31), entry bans (Article 32) and reconsideration of decisions (Article 33).

Article 15(1) of that Directive extends Articles 30 and 31 also to cases where restrictions on free movement are applied not on grounds of public policy, public security or public health, ie cases where the person might face expulsion due to being reliant upon benefits. Article 15(3) rules out applying an entry ban in such cases, and Article 15(2) states that “[e]xpiry of the identity card or passport on the basis of which the person concerned entered the host Member State and was issued with a registration certificate or residence card shall not constitute a ground for expulsion from the host Member State”.

Article 22

Related rights

In accordance with Article 23 of Directive 2004/38/EC, irrespective of nationality, the family members of a Union citizen or 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.

Comment: This clause essentially copies Article 23 of the citizens’ Directive. Due to the cross-reference, the case law on that Article will apply. This will be an important provision in practice for families where a non-EU citizen spouse or partner earns the sole or higher income.

Article 23

Equal treatment

1. In accordance with Article 24 of Directive 2004/38/EC, subject to the specific provisions provided for in this Title and Titles I 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 Part. The benefit of this right shall be extended to those family members of Union citizens or United Kingdom nationals 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 periods of residence on the basis of Article 6 or point (b) of Article 14(4) of Directive 2004/38/EC, nor shall it be obliged, prior to a person's acquisition of the right of permanent residence in accordance with Article 15 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 or to members of their families.

Comment: The reference to EU law means that the case law on Articles 6, 14(4)(b) and 24 of the citizens’ Directive will apply (see discussion of that case law here). Para 1 is very similar to Article 24(1) of the Directive, which is referred to directly anyway, except that it refers to the “specific provisions of” and “scope of” this Title of Part Two of the agreement, rather than of the TFEU. There are specific rules on equal treatment of workers, which are set out in Article 24 of the agreement.

The limits on access to benefits in para 2 are substantively identical to those in Article 24(2) of the citizens Directive: no social assistance during the first three months of residence or for an initial job-seeker, and no student benefits for non-economic migrants until they attain permanent residence. 

CHAPTER 2

Rights of workers and self-employed persons

Article 24

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 and the rights 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 reemployment;

(e) the right to social and tax 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 14 of this Agreement and shall retain the rights they enjoyed as workers there, provided they are in one of the circumstances set out in points (a), (b), (c) and (d) of Article 7(3) of Directive 2004/38/EC, even where they do not move their residence to the State of work.

Comments: Article 24 is a précis of the specific rights of free movement of workers in EU free movement law, as set out in Article 45 TFEU and Regulation 492/2011, which replaced the previous Regulation 1612/68. Article 4 of the agreement therefore requires relevant CJEU case law to apply, or for the UK courts to have due regard to it. Note that the CJEU case law has confirmed that the concept of “worker” has a wide scope, applying for instance to part-time workers and trainees, as long as they are doing “genuine and effective” work.

On Article 24(1)(a): Article 45(3) TFEU limits free movement of workers on grounds of public policy, public security and public health, although the case law on the relevant parts of the citizens’ Directive (and its predecessor legislation) referred to in Article 21 of this agreement, and the case law interpreting it, are also relevant. Article 45(4) TFEU limits free movement of workers by providing that “The provisions of this article shall not apply to employment in the public service”. CJEU case law interprets this exception narrowly.

Article 24(1)(a)(i) simply restates Article 45(2) TFEU, which has been the subject of CJEU case law. The reference to Article 45(3) TFEU in Article 24(1)(a)(ii) entails a reference to: “accept offers of employment actually made”; “move freely within the territory of Member States for this purpose”; “stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action”; and “to remain in the territory of a Member State after having been employed in that State”. The rules on the last of those issues now appear in Article 17 of the citizens’ Directive, and are incorporated in other provisions of this agreement.

Article 24(1)(b) effectively refers in turn to Regulation 492/2011: Article 1(1) (Article 24(1)(b)(i)); Article 5 (Article 24(1)(b)(ii)); Article 7(1) (Article 24(1)(b)(iii)); Article 7(2) (Article 24(1)(b)(iv)); Article 8 (Article 24(1)(b)(v)); Article 9 (Article 24(1)(b)(vi)); and Article 10 (Article 24(1)(b)(vii)). But this is a non-exhaustive list (“the rights set out in Regulation 492/2011, including…”), so the rest of the Regulation is covered too. 

Article 24(2) reflects the case law on Article 10 of Regulation 492/2011 and its predecessor, Article 12 of Regulation 1612/68, which gave residence rights to children in education and their carers as a corollary of access to education. The residence right of the child of a worker (or former worker) is protected by Article 24(1)(b)(vii), since it must be interpreted in accordance with prior CJEU case law (according to Article 4(4) of the agreement). See most recently the Alarape and Tijani case, discussed above as regards Article 15.

Article 24(3) does not reflect any specific provision of the citizens’ Directive or Regulation 492/2011.

Article 25

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 24(1) of this Agreement.

2. Article 24(2) shall apply to direct descendants of self-employed workers.

3. Article 24(3) shall apply to self-employed frontier workers.

Comment: The wording of para 1(a) reflects the text of Article 49 TFEU, on the rights of self-employed persons. The extension of the provision on workers’ equality in Article 24 to self-employed persons (see para 1(b)) is significant, since Regulation 492/2011 does not apply as such to self-employed workers; rather their equal treatment rights are based on the Treaties. Para 2 does not reflect any specific legislative rule, but it should be noted that it reaffirms the limit on UK citizens exercising free movement rights in other Member States.

Article 26

Issuance of a document identifying frontier workers' rights

The State of work may require Union citizens and 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 Union citizens and United Kingdom nationals shall have the right to be issued with such a document.

Comment: This does not reflect any specific provision of the citizens’ Directive or Regulation 492/2011.

CHAPTER 3

Professional qualifications

Article 27

Recognised professional qualifications

1. The recognition, before the end of the transition period, 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, 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 their 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 State or State of work;

(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 to take up or pursue the 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) recognitions of professional qualifications which have benefited from Article 3(3) of Directive 2005/36/EC;

(b) decisions granting partial access to a professional activity in accordance with Article 4f of Directive 2005/36/EC;

(c) recognitions of professional qualifications for establishment purposes made under Article 4d of Directive 2005/36/EC.

Comments: This Article ‘grandfathers’ recognition of professional qualifications awarded before the end of the transition period, but does not cover recognition of UK qualifications for EU27 citizens who move after the end of that period to the Member State of nationality, or another Member State. Equally it would not cover recognition in the UK of an EU27 qualification after Brexit day, even if the qualification was obtained beforehand. As such this wording acts as a kind of retroactive obstacle to the prior exercise of free movement. See comments on Articles 9 and 10 above, with suggested amendments there. The references to EU legislation mean that Articles 4 and 5 of the withdrawal agreement apply to interpretation.

It should be noted, however, that the EU draft guidelines on the future relationship refer to possible negotiation on recognition of qualifications, which would cover the gaps just identified – if such negotiations are comprehensive and successful.

Article 28

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 the host State or State of work of any application for the recognition of professional qualifications introduced before the end of the transition period by Union citizens or 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 to the extent relevant for the completion of the procedures for the recognitions of professional qualifications for establishment purposes under Article 4d of that Directive. 

Comments: This clause ‘grandfathers’ recognition of professional qualifications which were not awarded before the end of the transition/implementation period, but where an application was made for recognition before that date. Like Article 25, this Article does not cover subsequent recognition in another State of a prior qualification applied for before the end of that period, although this issue might be addressed by a “future relationship” treaty. 

Article 29

Administrative cooperation on recognition of professional qualifications

1. With regard to the pending applications referred to in Article 28, the United Kingdom and the Member States shall cooperate in order to facilitate the application of Article 28. Cooperation may include the exchange of information, including information 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 28.

2. By way of derogation from Article 8, for a period not exceeding 9 months from the end of the transition period, the United Kingdom shall be entitled to use the internal market information system in respect of applications referred to in Article 28 in so far as they concern procedures for the recognition of professional qualifications for establishment purposes under Article 4d of Directive 2005/36/EC.

Comments: This Article could address concern sometimes expressed in the UK about occasional cases in which EU27 professionals have faced some sort of prior professional sanction and so should arguably not have their professional qualification recognised. Note that the clause only applies to qualification applications pending at the end of the transition period (Article 28), not those qualifications recognised beforehand (Article 29). It resembles part of Article 56 of Directive 2005/36, but without any cross-reference to that provision (hence Articles 4 and 5 of this Agreement do not apply) or some of the extra detail in that Article.

Title III

Coordination of social security systems

Article 30

Persons covered

1. This Title shall apply to the following persons:

(a) Union citizens who are subject to the legislation of the United Kingdom at the end of the transition period, as well as their family members and survivors;

(b) United Kingdom nationals who are subject to the legislation of a Member State at the end of the transition period, as well as their family members and survivors;

(c) Union citizens who reside in the United Kingdom and are subject to the legislation of a Member State at the end of the transition period, as well as their family members and survivors;

(d) United Kingdom nationals who reside in a Member State, and are subject to the legislation of the United Kingdom at the end of the transition period, as well as their family members and survivors;

(e) persons who do not fall within points (a) to (d) but are:

(i) Union citizens who pursue an activity as an employed or self-employed person in the United Kingdom at the end of the transition period, and who, based on Title II of Regulation (EC) No 883/2004 of the European Parliament and of the Council, are subject to the legislation of a Member State, as well as their family members and survivors; or

(ii) United Kingdom nationals who pursue an activity as an employed or self-employed person in one or more Member States at the end of the transition period, 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;

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

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

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

3. This Title shall also apply to persons who do not, or who no longer, fall within points (a) to (e) of paragraph 1 of this Article but who fall within Article 10 of this Agreement, as well as their family members and survivors.

4. The persons referred to in paragraph 3 shall be covered for as long as they continue to have a right to reside in the host State under Article 13 of this Agreement, or a right to work in their State of work under Article 24 or 25 of this Agreement.

5. Where this Article refers to family members and survivors, those persons shall be covered by this Title only to the extent that they derive rights and obligations in that capacity under Regulation (EC) No 883/2004.

Comments: Regulation 883/2004 is the main EU law text on social security coordination for those who exercise free movement rights. It’s the latest version of legislation going back to 1958, when the EEC was first founded. Note that para 1(a) and (b) do not require that the person concerned still remains in the relevant EU27 Member State or the UK; this is an implied derogation from Article 10 of the Agreement. Regulation 987/2009 sets out detailed rules to implement Regulation 883/2004.

The inclusion of stateless persons and refugees in para 1(f) follows Regulation 883/2004 (and prior EU legislation on this issue), although note that the CJEU ruled in Khalil and Addou that like EU citizens, they only derive rights from the rules if they have moved between Member States.

Para 1(g) refers to separate legislation extending the EU coordination rules to other non-EU citizens who moved within the EU. The UK opted into the legislation referred to. There are EU treaties with non-EU countries setting out rules on social security coordination or equal treatment; they will apply as regards the UK during the transition/implementation period subject to the special rules in the Agreement on that period. After that point their continued application will depend upon whether the UK has “rolled over” the relevant treaty with the country concerned.

The cross-references to EU law in Paras 1(e), 1(g) and (5) mean that Articles 4 and 5 apply to the interpretation of these rules.

Article 31

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 of the European Parliament and of the Council, shall apply to the persons covered by this Title. The Union and the United Kingdom 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 Part I of Annex I to this Agreement.

2. By way of derogation from Article 9 of this Agreement, for the purposes of this Title, the definitions in Article 1 of Regulation (EC) No 883/2004 shall apply.

3. With regard to nationals of third countries who fulfil the conditions of Regulation (EC) No 859/2003, as well as their family members or survivors within the scope of this Title, the references to Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 in this Title shall be understood as references to Council Regulation (EEC) No 1408/71 and Council Regulation (EEC) No 574/72 respectively. References to specific provisions of Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 shall be understood as references to the corresponding provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72.

Comments: An earlier draft of these provisions was discussed in detail by Professor Tammy Hervey.The cross-references to EU law in every para mean that Articles 4 and 5 of the agreement apply to the interpretation of these rules.

Article 32

Special situations covered

1. The following rules shall apply in the following situations to the extent set out in this Article, insofar as they relate to persons not or no longer covered by Article 30:

(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 end of the transition period, as well as their family members and survivors;

(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 end of the transition period, as well as their family members and survivors;

for the purposes of the aggregation of periods, periods completed both before and after the end of the transition period 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 persons who, before the end of the transition period, had requested authorisation to receive a course of planned health care treatment pursuant to Regulation (EC) No 883/2004, until the end of the treatment. The corresponding reimbursement procedures shall also apply even after the treatment ends. Such persons and the accompanying persons shall enjoy the right to enter and exit the State of treatment in accordance with Article 14, mutatis mutandis;

(c) the rules set out in Articles 19 and 27 of Regulation (EC) No 883/2004 shall continue to apply to persons who are covered by Regulation (EC) No 883/2004 and who are on a stay at the end of the transition period in a Member State or the United Kingdom, until the end of their stay. The corresponding reimbursement procedures shall also apply even after the stay or treatment ends;

(d) the rules set out in Articles 67, 68 and 69 of Regulation (EC) No 883/2004 shall continue to apply, for as long as the conditions are fulfilled, to awards of family benefits to which there is entitlement at the end of the transition period for the following persons:

(i) 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 and reside in a Member State, who are subject to the legislation of a Member State and have family members residing in the United Kingdom at the end of the transition period;

(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 and reside in the United Kingdom, who are subject to the legislation of the United Kingdom and have family members residing in a Member State at the end of the transition period;

(e) in the situations set out in point (d)(i) and (ii) of this paragraph, for any persons who have rights as family members at the end of the transition period under Regulation (EC) No 883/2004, such as derived rights for sickness benefits in kind, that Regulation and the corresponding provisions of Regulation (EC) No 987/2009 shall continue to apply for as long as the conditions provided therein are fulfilled.

2. The provisions of Chapter 1 of Title III of Regulation (EC) No 883/2004 as regards sickness benefits shall apply to persons receiving benefits under point (a) of paragraph 1 of this Article.

This paragraph shall apply mutatis mutandis as regards family benefits based on Articles 67, 68 and 69 of Regulation (EC) No 883/2004.

Article 33

Nationals of Iceland, Liechtenstein, Norway and Switzerland

1. The provisions of this Title applicable to Union citizens shall apply to nationals of Iceland, the Principality of Liechtenstein, the Kingdom of Norway, and the Swiss Confederation provided that:

(a) Iceland, the Principality of Liechtenstein, the Kingdom of Norway, and the Swiss Confederation, as applicable, have concluded and apply corresponding agreements with the United Kingdom which apply to Union citizens; and

(b) Iceland, the Principality of Liechtenstein, the Kingdom of Norway, and the Swiss Confederation, as applicable, have concluded and apply corresponding agreements with the Union which apply to United Kingdom nationals. 

2. Upon notification from the United Kingdom and from the Union of the date of entry into force of the agreements referred to in paragraph 1 of this Article, the Joint Committee established by Article 164 ("Joint Committee") shall set the date from which the provisions of this Title shall apply to the nationals of Iceland, the Principality of Liechtenstein, the Kingdom of Norway, and the Swiss Confederation, as applicable.

Comments: the UK has negotiated treaties with the non-EU States concerned, although it is not known whether those States have agreed parallel treaties with the EU to cover UK citizens. In light of the approach of the transitional period to pre-existing treaties between the EU and non-EU countries, it might not be necessary to apply this Article before the end of the transition period.

Article 34

Administrative cooperation

1. By way of derogation from Articles 7 and 128(1), as of the date of entry into force of this Agreement, the United Kingdom shall have the status of observer in the Administrative Commission. It may, where the items on the agenda relating to this Title 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 bodies referred to in Articles 73 and 74 of Regulation (EC) No 883/2004 where such items are discussed.

2. By way of derogation from Article 8, the United Kingdom shall take part in the Electronic Exchange of Social Security Information (EESSI) and bear the related costs.

Comments: Articles 7 and 8 were annotated above. Note that, as confirmed by Article 185 of the withdrawal agreement, para 1 applies from Brexit day, rather than the end of the transition period.

Article 35

Reimbursement, recovery and offsetting

The provisions of Regulations (EC) No 883/2004 and (EC) No 987/2009 on reimbursement, recovery and offsetting shall continue to apply in relation to events, in so far as they relate to persons not covered by Article 30, that:

(a) occurred before the end of the transition period; or

(b) occur after the end of the transition period and relate to persons who were covered by Articles 30 or 32 when the event occurred.

Comments: The cross-reference to the legislation means that Articles 4 and 5 apply.

Article 36 

Development of law and adaptations of Union acts

1. Where Regulations (EC) No 883/2004 and (EC) No 987/2009 are amended or replaced after the end of the transition period, references to those Regulations in this Agreement shall be understood as referring to those Regulations as amended or replaced, in accordance with the acts listed in Part II of Annex I to this Agreement.

The Joint Committee shall revise Part II of Annex I 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 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. By way of derogation from the second subparagraph of paragraph 1, the Joint Committee shall assess the effects of an act amending or replacing Regulations (EC) No 883/2004 and (EC) No 987/2009 where that act:

(a) amends or replaces the matters covered by Article 3 of Regulation (EC) No 883/2004; or

(b) makes a cash benefit exportable where that cash benefit was non-exportable under Regulation (EC) No 883/2004 at the end of the transition period, or makes a cash benefit non-exportable, where that cash benefit was exportable at the end of the transition period; or

(c) makes a cash benefit exportable for an unlimited period of time, where that cash benefit was exportable only for a limited period of time under Regulation (EC) No 883/2004 at the end of the transition period, or makes a cash benefit exportable only for a limited period of time, where that cash benefit was exportable for an unlimited period of time under that Regulation at the end of the transition period.

In making its assessment, the Joint Committee shall consider in good faith the scale of the changes referred to in the first subparagraph of this paragraph, as well as the importance of the continued good functioning of Regulations (EC) No 883/2004 and (EC) No 987/2009 between the Union and the United Kingdom and the importance of there being a competent State in relation to individuals within the scope of Regulation (EC) No 883/2004.

If the Joint Committee so decides within 6 months from receiving the information given by the Union pursuant to paragraph 1, Part II of Annex I to this Agreement shall not be aligned to the act referred to in the first subparagraph of this paragraph.

For the purposes of this paragraph:

(a) "exportable" means payable under Regulation (EC) No 883/2004 to or in relation to a person residing in a Member State or in the United Kingdom if the institution responsible for providing the benefit is not situated there; "non-exportable" shall be interpreted accordingly; and

(b) "exportable for an unlimited period of time" means exportable for as long as the conditions giving rise to the entitlements are met.

3. 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 Annex I to this Agreement. As soon as possible after the adoption of any changes in domestic provisions of relevance to Part III of Annex I to this Agreement, the United Kingdom shall inform the Union thereof within the Joint Committee.

4. The Decisions and Recommendations of the Administrative Commission shall, for the purposes of this Agreement, be understood as comprising the decisions and recommendations listed in Part I of Annex I. The Joint Committee shall amend Part I of Annex I to reflect any new Decision or Recommendation adopted by the Administrative Commission. To that end, as soon as possible after adoption of decisions and recommendations of the Administrative Commission, the Union shall inform the United Kingdom thereof within the Joint Committee. Such amendments shall be made by the Joint Committee on a proposal of the Union or the United Kingdom.

Comments: The Joint Committee is established by Article 164. The measures concerned may in practice be filtered through the specialised sub-committee on citizens’ rights, referred to in Article 165. Joint Committee decisions are binding and have the same legal effect as the main Agreement, as set out in Article 166.

TITLE IV

OTHER PROVISIONS

Article 37

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.

Comment: This text is identical to Article 34 of the citizens’ Directive, adapted to the specific circumstances of this Agreement. The reference to the media is sadly ironic in light of shrieking and misleading reporting about EU27 citizens often found in some UK newspapers.  

Article 38

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 12 and Article 23(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.

Comment: Para 1 is effectively identical to Article 37 of the citizens’ Directive, but does not refer to it expressly. Therefore Articles 4 and 5 of this Agreement on interpretation will not apply. There is an important substantive issue here: in Ziolkowski, the CJEU said that more favourable rules applied by Member States were not incorporated into the system set up by the citizens’ Directive. That raises the question of whether the UK’s discretion to waive the comprehensive sickness insurance requirement (see discussion on Article 18), or or deal with Surinder Singh cases (see discussion on Article 9) will bring the persons concerned within the scope of the rights in the Withdrawal Agreement, or whether their position will remain solely based on national law. In the absence of a cross-reference to EU law, that will not necessarily be the correct interpretation of this clause, but it is a risk. Note that para 1 does not apply to Title III, which deals with social security (Articles 28-31).

As for para 2, the common travel area is not referred to in the citizens’ Directive, but it is referred to in a Protocol attached to the Treaties and in the Irish border Protocol attached to the withdrawal agreement.

Article 39

Life-long protection

The persons covered by this Part shall enjoy the rights provided for in the relevant Titles of this Part for their lifetime, unless they cease to meet the conditions set out in those Titles.