Professor Steve Peers, University of Essex*
What happens to EU27 citizens and
UK citizens who have moved within the EU in the event of a ‘no deal’ Brexit? In
principle their position will be regulated by the withdrawal agreement under
negotiations, but since it seems that talks on this agreement are becomingly
increasingly difficult the possibility of the UK leaving the EU without any
such agreement may have risen. This would leave the two groups of people in
limbo, unless an alternative approach to securing their acquired rights is
found.
It’s possible that a separate
agreement on their rights could be agreed between the UK and the EU: I have suggested
a text for such a “ring-fenced” deal here.
Another alternative is matching unilateral guarantees. The EU
Withdrawal Act, which recently came into force, retains EU27 citizens’
rights in UK law for the time being, and the UK government has already tabled
planned changes
to the Immigration Rules to give effect to it. This could be matched by
national law guarantees for UK citizens in the EU27 States, but for the sake of
legal security a better approach would be EU-wide legislation on the issue.
I suggest here a draft Regulation
to give effect to that idea. (Denmark would not be covered, so would have to
act unilaterally; Ireland could opt in). It is based on the text of the
withdrawal agreement (which I commented on here),
with several adaptations: retaining free movement for UK citizens who
registered under the new system; a cut-off of the withdrawal date (Brexit day),
on the assumption that there would be no transition period; and references to
UK citizens and their family members only, except where EU27 citizens have been
covered by the UK social security system and need recognition of those prior
contributions.
It might be questioned whether
the EU has the legal competence to adopt laws treating a Member State as a
non-Member State before it leaves. However, the Commission has already made
several legal proposals on the assumption that the UK is leaving, and if those
proposals are legally sound it should follow that this one is also, provided
that it does not apply until the withdrawal date. In the event that it were
only adopted after the withdrawal date, it could be backdated to ensure that no
UK citizens or their family members will be treated as illegal residents. The Regulation
would be based on Article 79 TFEU, which gives the EU power to adopt
legislation on the legal migration status of non-EU citizens. Although the EU
cannot harmonise national law on the numbers of people coming from non-EU
countries to seek work (Article 79(5)), this Regulation would concern non-EU
citizens already resident on the territory.
Barnard & Peers: chapter 27
Photo credit: ITV news
*Supported by an ESRC Priority
Brexit Grant on 'Brexit and UK and EU Immigration Policy'
TITLE I
GENERAL PROVISIONS
Article 1
Objective
This Regulation sets out the
rights of United Kingdom nationals and their family members, who exercised
rights pursuant to European Union law before the withdrawal of the United
Kingdom from the European Union.
Article 2
Definitions
For the purposes of this Regulation,
and without prejudice to Title III, the following definitions shall apply:
(a) "family members"
means:
(i) family
members of Union citizens or United Kingdom nationals as defined in point (2)
of Article 2 of Directive 2004/38/EC of the European Parliament and of the
Council;
(ii) persons
other than those defined in Article 3(2) of Directive 2004/38/EC whose presence
is required by Union citizens or United Kingdom nationals in order not to
deprive them of a right of residence granted by this Regulation;
irrespective of their nationality
and who fall within the personal scope provided for in Article 3 of this Regulation;
(b) "frontier workers"
means United Kingdom nationals who pursue an economic activity in accordance
with Article 45 or 49 TFEU in one or more States in which they do not reside;
(c) "host State" means the
Member State in which the United Kingdom nationals exercised their right of
residence in accordance with Union law before the withdrawal date and continue
to reside there thereafter;
(d) "State of work"
means a Member State in which the United Kingdom nationals pursued an economic
activity as frontier workers before the withdrawal date and continue to do so
thereafter;
(e) "rights of custody"
means rights of custody within the meaning of point (9) of Article 2 of Council
Regulation (EC) No 2201/2003, including rights of custody acquired by judgment,
by operation of law or by an agreement having legal effect.
(f) "Member States"
means the Kingdom of Belgium, the Republic of Bulgaria, the Czech Republic, the
Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia,
Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the
Republic of Croatia, the Italian Republic, the Republic of Cyprus, the Republic
of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, Hungary,
the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria,
the Republic of Poland, the Portuguese Republic, Romania, the Republic of
Slovenia, the Slovak Republic, the Republic of Finland and the Kingdom of
Sweden;
(g) "Union citizen"
means any person holding the nationality of a Member State;
(h) "United Kingdom
national" means a national of the United Kingdom, as defined in the New
Declaration by the Government of the United Kingdom of Great Britain and
Northern Ireland of 31 December 1982 on the definition of the term ‘nationals’1
together with Declaration No 63 annexed to the Final Act of the
intergovernmental conference which adopted the Treaty of Lisbon;
(i) "withdrawal date"
means the date on which the United Kingdom ceased to be a Member State, in
accordance with Article 50 of the Treaty on European Union.
Article 3
Personal scope
1. Without prejudice to Title III, this Regulation
shall apply to the following persons:
(a) United Kingdom nationals who
exercised their right to reside in a Member State in accordance with Union law
before the withdrawal date and continue to reside there thereafter;
(b) United Kingdom nationals who
exercised their right as frontier workers in one or more Member States in
accordance with Union law before the withdrawal date and continue to do so
thereafter;
(c) family members of the persons
referred to in points (a) to (b), where they fulfil one of the following
conditions:
(i) they
resided in the host State in accordance with Union law before the withdrawal
date and continue to reside there thereafter;
(ii) they were
directly related to a person referred to in points (a) to (d) of this paragraph
and resided outside the host State before the withdrawal date, provided that
they fulfil the conditions set out in point (2) of Article 2 of Directive
2004/38/EC at the time they seek residence under this Regulation in order to
join the person referred to in points (a) to (d) of this paragraph;
(iii) they are
born to, or legally adopted by, persons referred to in points (a) to (d) after
the withdrawal date, whether inside or outside the host State, where they
fulfil the conditions set out in point (2)(c) of Article 2 of Directive 2004/38/EC
at the time they seek residence under this Regulation in order to join the
person referred to in points (a) to (d) of this paragraph and fulfil one of the
following conditions:
- both parents are persons referred to in
points (a) to (d);
- one parent is a person referred to in points
(a) to (d) and the other is a national of the host State; or
- one parent is a person referred to in points
(a) to (d) and has sole or joint rights of custody of the child, in accordance
with the applicable rules of family law of a Member State, including applicable
rules of private international law under which rights of custody established
under the law of a third state are recognised in the Member State, in
particular as regards the best interests of the child and without prejudice to
the normal operation of such applicable rules of private international law;
[footnote: The notion of rights of custody
is to be interpreted in accordance with point (9) of Article 2 of Council
Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and
the recognition and enforcement of judgments in matrimonial matters and the
matters of parental responsibility. Therefore, it covers rights of custody
acquired by judgment, by operation of law or by an agreement having legal
effect.]
(d) family members who resided in
the host State in accordance with Articles 12 and 13, Article 16(2) and
Articles 17 and 18 of Directive 2004/38/EC before the withdrawal date and
continue to reside there thereafter.
2. Persons falling under points
(a) and (b) of Article 3(2) of Directive 2004/38/EC whose residence was
facilitated by the host State in accordance with its national legislation
before the withdrawal date in accordance with Article 3(2) of Directive
2004/38/EC shall retain their right of residence in the host State in
accordance with this Regulation provided they continue to reside in the host
State thereafter.
3. Paragraph 2 also applies to
persons falling under points (a) and (b) of Article 3(2) of Directive
2004/38/EC who have applied for facilitation of entry and residence before the withdrawal
date, and whose residence is facilitated by the host State in accordance with
its national legislation after that date.
4. Without prejudice to any right
to residence which the persons concerned may have in their own right, the host
State shall, in accordance with its national legislation and in accordance with
point (b) of Article 3(2) of Directive 2004/38/EC, facilitate entry and
residence for the partner with whom the person referred to in points (a) to (d)
has a durable relationship, duly attested, and who resided outside the host
State before the withdrawal date, provided that the relationship was durable
before the withdrawal date and continues at the time the partner seeks
residence under this Regulation.
5. In the cases referred to in
paragraphs 3 and 4, the host State shall undertake an extensive examination of
the personal circumstances and shall justify any denial of entry or residence
to such persons.
Article 4
Continuity of
residence
Continuity of residence for the
purposes of Articles 2 and 3 shall not be affected by absences as referred to
in Article 8(2).
The right of permanent residence
acquired under Directive 2004/38/EC before the withdrawal date shall not be
treated as lost through absence from the host State for a period specified in
Article 8(3).
Article 5
Non-discrimination
Within the scope of this Regulation
and without prejudice to any special provisions contained therein, any
discrimination on grounds of nationality within the meaning of the first
subparagraph of Article 18 TFEU shall be prohibited in the host State and the
State of work in respect of the persons referred to in Article 3 of this Regulation.
TITLE II
RIGHTS AND
OBLIGATIONS
CHAPTER 1
Rights related to
residence, residence documents
Article 6
Residence rights
1. United Kingdom nationals shall
have the right to reside in the host State under the limitations and conditions
as set out in Articles 21, 45 or 49 TFEU and in Article 6(1), Article 7(1)(a),
(b) or (c), Article 7(3), Article 14, Article 16(1) or Article 17(1) of
Directive 2004/38/EC.
2. Family members who are United
Kingdom nationals shall have the right to reside in the host State as set out
in Article 21 TFEU and in Article 6(1), Article 7(1)(d), Article 12(1) or (3),
Article 13(1), Article 14, Article 16(1) or Article 17(3) and (4) of Directive
2004/38/EC, subject to the limitations and conditions set out in those
provisions.
3. Family members who are not
United Kingdom nationals shall have the right to reside in the host State under
Article 21 TFEU and as set out in Article 6(2), Article 7(2), Article 12(2) or
(3), Article 13(2), Article 14, Article 16(2), Article 17(3) or (4) or Article
18 of Directive 2004/38/EC, subject to the limitations and conditions set out
in those provisions.
4. The host State may not impose any limitations
and conditions other than those provided for in this Title on the persons
referred to in paragraphs 1, 2 and 3 for obtaining, retaining or losing residence
rights. There shall be no discretion in applying the limitations and
conditions, other than in favour of the person concerned.
Article 7
Right of exit and of
entry
1. United Kingdom nationals,
their respective family members and other persons, residing in its territory in
accordance with the conditions set out in this Title shall have the right to
leave the host State and the right to enter it as set out in Articles 4(1) and
5(1) first paragraph of Directive 2004/38/EC with a valid passport or national
identity card for United Kingdom nationals, and a valid passport for their
respective family members who are not Union citizens or United Kingdom
nationals.
After five years following the withdrawal
date, the host State may decide no longer to accept a national identity card to
enter or exit its territory, if the respective national identity card does not
include a chip compliant with the applicable International Civil Aviation
Organisation standards related to biometric identification.
2. No exit or entry visa or
equivalent formality shall be required for holders of a valid document issued
in accordance with Article 11 or 19 of this Regulation.
3. Where the host State requires family members
who join the United Kingdom national after the withdrawal date to have an entry
visa, the host State shall grant such persons every facility to obtain the
necessary visas. Such visas shall be issued free of charge as soon as possible
and on the basis of an accelerated procedure.
Article 8
Right of permanent
residence
1. United Kingdom nationals and their family
members who have resided legally in accordance with Union law for a continuous
period of five years in the host State, or for the duration specified in
Article 17 of Directive 2004/38/EC, shall have the right to reside permanently
in the host State under the conditions set out in Articles 16, 17 and 18 of
Directive 2004/38/EC. Periods of legal residence or work in accordance with
Union law before and after the withdrawal date shall be included in the
calculation of the qualifying period necessary for acquisition of the right of
permanent residence.
2. Continuity of residence for the purposes of
acquisition of the right of permanent residence shall be determined in
accordance with Article 16(3) and Article 21 of Directive 2004/38/EC.
3. Once acquired, the right of permanent
residence shall be lost only through absence from the host State for a period
exceeding five consecutive years.
Article 9
Accumulation of
periods
United Kingdom nationals and
their family members who before the withdrawal date resided legally in the host
State under the conditions of Article 7 of Directive 2004/38/EC for a period of
less than five years, shall have the right to acquire the right to reside
permanently under the conditions set out in Article 8 of this Regulation once
they have completed the necessary periods of residence. Periods of legal
residence or work in accordance with Union law before and after the withdrawal date
shall be included in the calculation of the qualifying period necessary for
acquisition of the right of permanent residence.
Article 10
Status and changes
1. The right of United Kingdom nationals and
their family members to rely directly on this Regulation shall not be affected
when they change status, for example between student, worker, self-employed
person and economically inactive person. Persons who, at the withdrawal date,
enjoy a right of residence in their capacity as family members of United
Kingdom nationals cannot become persons referred to in points (a) to (d) of
Article 9(1).
2. The rights provided for in this Title for the
family members, who are dependent on United Kingdom nationals before the withdrawal
date, shall be maintained even after they cease to be dependent.
Article 11
Issuance of residence
documents
1. The host State may require United Kingdom
nationals, their family members and other persons residing in its territory in
accordance with the conditions set out in this Title, to apply for a new
residence status which confers the rights under this Title and a document
evidencing such status which may be in a digital form.
Applying for such a residence
status shall be subject to the following conditions:
(a) the purpose of the
application procedure shall be to verify whether the applicant is entitled to
the residence rights set out in this Title. Where that is the case, the
applicant shall have a right to be granted the residence status and the
document evidencing it;
(b) the deadline for submitting
the application shall not be less than 6 months from the withdrawal date for
persons residing in the host State before the withdrawal date.
The deadline for persons who have
the right to commence residence in the host State in accordance with this Regulation
shall be 3 months after their arrival or expiry of the deadline referred to in
the first subparagraph, whichever is later.
A certificate of application for
the residence status shall be issued immediately;
(c) the deadline for submitting
the application referred to in point (b) shall be extended automatically by one
year where a Member State has notified Commission that technical problems
prevent that State either from registering the application or from issuing the
certificate of application referred to in point (b). That Member State shall
publish that notification and shall provide appropriate public information for
the citizens or nationals concerned in good time;
(d) where the deadline for
submitting the application referred to in point (b) is not respected by the
persons concerned, the competent authorities shall assess all the circumstances
and reasons for not respecting the deadline and allow those persons to submit
an application within a reasonable further period of time, where there are
reasonable grounds for the failure to respect the deadline;
(e) the host State shall ensure
that administrative procedures for applications are smooth, transparent and
simple and that any unnecessary administrative burdens are avoided;
(f) application forms shall be
short, simple, user friendly and adjusted to the context of this Regulation;
applications made by families at the same time shall be considered together;
(g) the document evidencing the
status shall be issued free of charge or for a charge not exceeding that
imposed on citizens or nationals for the issuing of similar documents;
(h) persons who, before the withdrawal
date, are holders of a valid permanent residence document issued under Article
19 or 20 of Directive 2004/38/EC or a valid domestic immigration document
conferring a permanent right to reside in the host State, shall have the right
to exchange that document within the period referred to in point (b)for a new
residence document upon application after a verification of their identity, a
criminality and security check in accordance with point (p) of this paragraph
and confirmation of ongoing residence; such a document shall be free of charge;
(i) the identity of the
applicants shall be verified through the presentation of a valid passport or
national identity card for United Kingdom nationals, and a valid passport for
their respective family members who are not Union citizens or United Kingdom
nationals; the acceptance of such identity documents shall not be made
conditional upon any criteria other than that of validity. Where the identity
document is retained by the competent authorities of the host State while the
application is pending, the host State shall return that document upon
application without delay and before the decision on the application is taken;
(j) supporting documents other
than identity documents, such as civil status documents, may be submitted in
copy. Originals of supporting document can be required only in specific cases
where there is a reasonable doubt as to the authenticity of the supporting
documents submitted;
(k) the host State may only
require United Kingdom nationals to present, in addition to the identity
documents referred to in point (i) of this paragraph, the following supporting
documents as referred to in Article 8(3) of Directive 2004/38/EC:
(i) where they
reside in the host State in accordance with Article 7(1)(a) of Directive
2004/38/EC as workers or self-employed, a confirmation of engagement from the
employer or a certificate of employment, or proof that they are self-employed;
(ii) where
they reside in the host State in accordance with Article 7(1)(b) of Directive
2004/38/EC as economically inactive persons, evidence that they have sufficient
resources for themselves and their family members not to become a burden on the
social assistance system of the host State during their period of residence and
have comprehensive sickness insurance cover in the host State;
(iii) where
they reside in the host State in accordance with Article 7(1)(c) of Directive
2004/38/EC as students, proof of enrolment at an establishment accredited or
financed by the host State on the basis of its legislation or administrative
practice, and of comprehensive sickness insurance cover and a declaration or
equivalent, that they have sufficient resources for themselves and their family
members not to become a burden on the social assistance system of the host
State during their period of residence. The host State may not require this
declaration to refer to any specific amount of resources.
With regard to the condition of
sufficient resources, Article 8(4) of Directive 2004/38/EC shall apply;
(l) the host State may only
require family members who fall under Articles 3(1)(e)(i), 3(2) or 3(3) of this
Regulation and who reside in the host State in accordance with Article 7(1)(d)
or 7(2) of Directive 2004/38/EC to present, in addition to the identity
documents referred to in point (i) of this paragraph, the following supporting
documents as referred to in Articles 8(5) or 10(2) of Directive 2004/38/EC:
(i) a document
attesting to the existence of a family relationship or of a registered
partnership;
(ii) the
registration certificate or, in the absence of a registration system, any other
proof of residence in the host State of the Union citizen or of the United
Kingdom nationals with whom they reside in the host State;
(iii) for
direct descendants who are under the age of 21 or are dependants and dependent
direct relatives in the ascending line, and for those of the spouse or
registered partner, documentary evidence that the conditions set out in Article
2(2)(c) or (d) of Directive 2004/38/EC are fulfilled;
(iv) for the
persons referred to in Article 3(2) or (3) of this Regulation, a document
issued by the relevant authority in the host State in accordance with Article
3(2) of Directive 2004/38/EC.
With regard to the condition of
sufficient resources as concerns family members who are themselves Union
citizens or United Kingdom nationals, Article 8(4) of Directive 2004/38/EC
shall apply;
(m) the host State may only
require family members who fall under Articles 3(1)(e)(ii) or 3(4) of this Regulation,
in addition to the identity documents referred to in point (i) of this
paragraph, the following supporting documents as referred to in Articles 8(5)
and 10(2) of Directive 2004/38/EC:
(i) a document
attesting to the existence of a family relationship or of a registered
partnership;
(ii) the
registration certificate or, in the absence of a registration system, any other
proof of residence in the host State of the Union citizen or of the United
Kingdom nationals whom they are joining in the host State;
(iii) for
spouses or registered partners, a document attesting to the existence of a
family relationship or of a registered partnership before the withdrawal date;
(iv) for
direct descendants who are under the age of 21 or are dependants and dependent
direct relatives in the ascending line and those of the spouse or registered
partner, documentary evidence that they were related to Union citizens or
United Kingdom nationals before the withdrawal date and fulfil the conditions
set out in Article 2(2)(c) or (d) of Directive 2004/38/EC relating to age or
dependence;
(v) for the
persons referred to in Article 3(4) of this Regulation, proof that a durable
relationship with Union citizens or United Kingdom nationals existed before the
withdrawal date and continues to exist thereafter;
(n) for cases other than those
set out in points (k), (l) and (m), the host State shall not require applicants
to present supporting documents that go beyond what is strictly necessary and
proportionate to provide evidence that the conditions relating to the right of
residence under this Title have been fulfilled;
(o) the competent authorities of
the host State shall help the applicants prove their eligibility and avoid any
errors or omissions in the application; they shall give the applicants the
opportunity to furnish supplementary evidence and to correct any deficiencies,
errors or omission;
(p) criminality and security
checks may be carried out systematically on applicants with the exclusive aim
of verifying whether restrictions set out in Article 13 of this Regulation may
be applicable. For that purpose, applicants may be required to declare past
criminal convictions which appear in their criminal record in accordance with
the law of the State of conviction at the time of the application. The host
State may, should it consider this essential, apply the procedure set out in
Article 27(3) of Directive 2004/38/EC on enquiries to other States regarding
previous criminal records;
(q) the new residence document
shall include a statement that it has been issued in accordance with this Regulation;
(r) the applicant shall have
access to judicial and, where appropriate, administrative redress procedures in
the host State against any decision refusing to grant the residence status.
The redress procedures shall
allow for an examination of the legality of the decision, as well as of the
facts and circumstances on which the proposed decision is based. They shall
ensure that the decision is not disproportionate.
2. During the period referred to in point (b) of
paragraph 1 of this Article and its possible one-year extension under point (c)
of paragraph 1 of this Article, all rights provided for in this Regulation
shall be deemed to apply to United Kingdom nationals, their family members, and
other persons residing in the host State in accordance with the conditions and
subject to the restrictions set out in Article 13.
3. Pending a final decision by
the competent authorities on any application referred to in paragraph 1, as
well as a final judgment handed down in case of judicial redress sought against
any rejection of such application by the competent administrative authorities,
all rights provided for in this Regulation shall be deemed to apply to the
applicant, including Article 14 on safeguards and right of appeal, subject to
the conditions set out in Article 13(4).
4. Where a host State has chosen
not to require United Kingdom nationals, their family members, and other
persons residing in its territory in accordance with the conditions set out in
this Title, to apply for the new residence status referred to in paragraph 1 as
a condition for legal residence, those eligible for residence rights under this
Title shall have the right to receive, in accordance with the conditions set
out in Directive 2004/38/EC, a residence document which may be in a digital
form that includes a statement that it has been issued in accordance with this Regulation.
Article 12
Issuance of residence
documents during the transition period
1. A host State may allow applications for a
residence status or a residence document as referred to in Article 17(1) and
(4) to be made voluntarily from the date of entry into force of this Regulation.
2. A decision to accept or refuse such an
application shall be taken in accordance with Article 11(1) and (4). A decision
under Article 11(1) shall have no effect until the withdrawal date.
3. If an application under Article 11(1) is
accepted before the withdrawal date, the host State may not withdraw the
decision before that date on any grounds other than those set out in Chapter VI
and Article 35 of Directive 2004/38/EC.
4. If an application is refused before the withdrawal
date, the applicant may apply again at any time before the expiry of the period
set out in Article 11(1)(b).
5. Without prejudice to paragraph 4, redress
procedures under Article 11(1)(r) shall be available from the date of the
decision.
Article 13
Restrictions of the
right of residence
1. Conduct of United Kingdom nationals, their
family members or other persons exercising rights under this Title, that
occurred before the withdrawal date shall be considered in accordance with
Chapter VI of Directive 2004/38/EC.
2. Conduct of United Kingdom nationals, their
family members or other persons exercising rights under this Title, that
occurred after the withdrawal date may constitute grounds for restricting the
right of residence by the host State or the right of entry in the State of work
in accordance with national legislation.
3. The host State or the State of
work may adopt the necessary measures to refuse, terminate or withdraw any
right conferred by this Title in the case of abuse of those rights or fraud as
set out in Article 35 of Directive 2004/38/EC. Such measures shall be subject
to the procedural safeguards provided for in Article 14 of this Regulation.
4. The host State or the State of
work may remove applicants who submitted fraudulent or abusive applications
from its territory under the conditions set out in Directive 2004/38/EC, in
particular Articles 31 and 35 thereof, even before a final judgment has been
handed down in case of judicial redress sought against any rejection of such an
application.
Article 14
Safeguards and right
of appeal
The safeguards set out in Article
15 and Chapter VI of Directive 2004/38/EC shall apply in respect of any
decision of the host State that restricts residence rights of the persons referred
to in Article 3 of this Regulation.
Article 15
Related rights
In accordance with Article 23 of
Directive 2004/38/EC, irrespective of nationality, the family members of a
Union citizen or a United Kingdom national who have the right of residence or the
right of permanent residence in the host State or the State of work shall be
entitled to take up employment or self-employment there.
Article 16
Equal treatment
1. In accordance with Article 24
of Directive 2004/38/EC, subject to the specific provisions provided for in
Titles I, II and IV of this Regulation, all United Kingdom nationals residing
on the basis of this Regulation in the territory of the host State shall enjoy
equal treatment with the nationals of that State within the scope of this Regulation.
The benefit of this right shall be extended to family members of United Kingdom
nationals and who have the right of residence or permanent residence.
2. By way of derogation from
paragraph 1, the host State shall not be obliged to confer entitlement to
social assistance during residence in accordance with Articles 6 or 14(4)(b) of
Directive 2004/38/EC, nor shall it be obliged, prior to acquisition of the
right of permanent residence in accordance with Article 8 of this Regulation,
to grant maintenance aid for studies, including vocational training, consisting
in student grants or student loans to persons other than workers, self-employed
persons, persons who retain such status and members of their families.
CHAPTER 2
Rights of workers and
self-employed persons
Article 17
Rights of workers
1. Subject to the limitations set out in Article
45(3) and (4) TFEU, workers in the host State and frontier workers in the State
or States of work shall enjoy the rights guaranteed by Article 45 TFEU or
granted by Regulation (EU) No 492/2011 of the European Parliament and of the
Council. These rights include:
(a) the right not to be
discriminated against on grounds of nationality as regards employment,
remuneration and other conditions of work and employment;
(b) the right to take up and
pursue an activity in accordance with the rules applicable to the nationals of
the host State or the State of work;
(c) the right to assistance
afforded by the employment offices of the host State or the State of work as
offered to own nationals;
(d) the right to equal treatment
in respect of conditions of employment and work, in particular as regards
remuneration, dismissal and in case of unemployment, reinstatement or
re-employment;
(e) the right to tax and social
advantages;
(f) collective rights;
(g) the rights and benefits
accorded to national workers in matters of housing;
(h) the right for their children
to be admitted to the general educational, apprenticeship and vocational
training courses under the same conditions as the nationals of the host State
or the State of work, if such children are residing in the territory where the
worker works.
2. Where a direct descendant of a worker who has
ceased to reside in the host State is in education in that State, the primary
carer for that descendant shall have the right to reside in that State until
the descendant reaches the age of majority, and after the age of majority if
that descendant continues to need the presence and care of the primary carer in
order to pursue and complete his or her education.
3. Employed frontier workers
shall enjoy the right to enter and exit the State of work in accordance with
Article 7 and shall retain the rights they enjoyed as workers there in accordance
with Article 7(3) of Directive 2004/38/EC.
Article 18
Rights of
self-employed persons
1. Subject to the limitations set out in
Articles 51 and 52 TFEU, self-employed persons in the host State and
self-employed frontier workers in the State or States of work shall enjoy the
rights guaranteed by Articles 49 and 55 TFEU. These rights include:
(a) the right to take up and
pursue activities as self-employed persons and to set up and manage
undertakings under the conditions laid down by the host State for its own
nationals, as set out in Article 49 TFEU;
(b) the rights as set out in
points (c) to (h) of Article 17(1) of this Regulation.
2. Article 17(2) shall apply to direct
descendants of self-employed workers.
3. Article 17(3) shall apply to
self-employed frontier workers, without prejudice to Article 27 concerning the scope of rights.
Article 19
Issuance of a
document identifying frontier workers' rights
The State of work may require United
Kingdom nationals who have rights as frontier workers under this Title to apply
for a document certifying that they have such rights under this Title. Such United
Kingdom nationals shall have the right to be issued with such a document.
CHAPTER 3
Professional
qualifications
Article 20
Recognised
professional qualifications
1. The recognition, before the withdrawal date,
of professional qualifications, as defined in point (b) of Article 3(1) of Directive
2005/36/EC of the European Parliament and of the Council, of United Kingdom
nationals and their family members by their host State or their State of work
shall maintain its effects in the respective State, including the right to
pursue the profession under the same conditions as its nationals, where such
recognition was made in accordance with any of the following provisions:
(a) Title III of Directive
2005/36/EC in respect of the recognition of professional qualifications in the
context of the exercise of the freedom of establishment, whether such
recognition fell under the general system for the recognition of evidence of
training, the system for the recognition of professional experience or the
system for the recognition on the basis of coordination of minimum training
conditions;
(b) Article 10(1) and (3) of
Directive 98/5/EC of the European Parliament and of the Council in respect of
gaining admission to the profession of lawyer in the host Member State;
(c) Article 14 of Directive
2006/43/EC of the European Parliament and of the Council in respect of the
approval of statutory auditors from another Member State;
(d) Council Directive 74/556/EEC
in respect of the acceptance of evidence of the knowledge and ability necessary
in order to take up or pursue activities of self-employed persons and of
intermediaries engaging in the trade and distribution of toxic products or
activities involving the professional use of toxic products.
2. Recognitions of professional qualifications
for the purposes of point (a) of paragraph 1 of this Article shall include:
(a) recognition of professional
qualifications which have benefited from Article 3(3) of that Directive;
(b) decisions granting partial
access to a professional activity in accordance with Article 4f of that
Directive;
(c) recognitions of professional
qualifications for establishment purposes made under Article 4d of that
Directive.
Article 21
Ongoing procedures on
the recognition of professional qualifications
Article 4, Article 4d in respect
of recognitions of professional qualifications for establishment purposes,
Article 4f and Title III of Directive 2005/36/EC, Article 10(1), (3) and (4) of
Directive 98/5/EC, Article 14 of Directive 2006/43/EC and Directive 74/556/EEC
shall apply in respect of the examination by a competent authority of their
host State or State of work of any application for the recognition of
professional qualifications introduced before the withdrawal date by United
Kingdom nationals and in respect of the decision on any such application.
Articles 4a, 4b and 4e of
Directive 2005/36/EC shall also apply in so far as relevant for the completion
of the procedures for the recognitions of professional qualifications for
establishment purposes under Article 4d of Directive 2005/36/EC.
Article 22
Administrative
cooperation on recognition of professional qualifications
1. With regard to the pending
applications referred to in Article 21, the Member States shall cooperate with
the United Kingdom in order to facilitate the application of Article 21.
Cooperation may include the exchange of information, including on disciplinary
action or criminal sanctions taken or any other serious and specific
circumstances which are likely to have consequences for the pursuit of the
activities falling under the Directives referred to in Article 21.
Title III
Coordination of
social security systems
Article 23
Persons covered
1. This Title shall apply to the following
persons:
(a) United Kingdom nationals who
are subject to the legislation of a Member State on the withdrawal date, as
well as their family members and survivors;
(b) United Kingdom nationals who
reside in a Member State, and are subject to the legislation of the United
Kingdom on the withdrawal date, as well as their family members and survivors;
(c) persons who do not fall
within points (a) to (b) but are United Kingdom nationals who pursue an
activity as employed or self-employed person in one or more Member States on
the withdrawal date, and who, based on Title II of Regulation (EC) No 883/2004,
are subject to the legislation of the United Kingdom, as well as their family
members and survivors;
(d) stateless persons and refugees,
residing in a Member State, who are in one of the situations described under
points (a) to (e), as well as their family members and survivors;
(3) nationals of third countries,
as well as members of their families and survivors, who are in one of the
situations described under points (a) to (e), provided that they fulfil the
conditions of Council Regulation (EC) No 859/2003.
2. These persons shall be covered
for as long as they continue without interruption to be in one of the
situations set out in paragraph 1 involving both a Member State and the United
Kingdom at the same time.
Article 24
Social security
coordination rules
1. The rules and objectives set
out in Article 48 TFEU, Regulation (EC) No 883/2004 and Regulation (EC) No
987/2009, shall apply to the persons covered by this Title.
Member States shall take due
account of the Decisions and Recommendations of the Administrative Commission
for the Coordination of Social Security Systems attached to the European
Commission, set up under Regulation (EC) No 883/2004 ("Administrative
Commission") listed in [Annex II to] this Regulation.
2. By way of derogation from
Article 2 of this Regulation, for the purposes of this Title, the definitions
in Article 1 of Regulation (EC) No 883/2004 shall apply.
3. With regard to the persons referred to in
Article 23(1)(g) of this Regulation, the reference to Regulation (EC) No
883/2004 and Regulation (EC) No 987/2009 in this Article shall be understood as
reference to Regulation (EC) No 1408/71 and Regulation (EC) No 574/72
respectively.
Article 25
Special situations covered
1. The following situations,
insofar as they relate to persons not
covered by Article 23, shall be covered by this Title only to the extent set
out below:
(a) the following persons shall
be covered by this Title for the purposes of reliance on and aggregation of
periods of insurance, employment, self-employment or residence, including
rights and obligations deriving from such periods in accordance with Regulation
(EC) No 883/2004:
(i) Union citizens, as well as
stateless persons and refugees residing in a Member State and nationals of
third countries who fulfil the conditions of Regulation (EC) No 859/2003, who
have been subject to the legislation of the United Kingdom before the withdrawal
date but are no longer subject to that legislation;
(ii) United Kingdom nationals, as
well as stateless persons and refugees residing in the United Kingdom and
nationals of third countries who fulfil the conditions of Regulation (EC) No
859/2003, who have been subject to the legislation of a Member State before the
withdrawal date but are no longer subject to that legislation;
For the purposes of aggregation
of periods, both periods completed before and after the withdrawal date shall
be taken into account in accordance with Regulation (EC) No 883/2004;
(b) the rules set out in Articles
20 and 27 of Regulation (EC) No 883/2004 shall continue to apply to a person
who has begun a course of planned health care treatment before the withdrawal
date in a Member State, while that State was not the competent State until the
end of the treatment. The corresponding reimbursement procedures shall also
apply even after the treatment ends. They enjoy the right to enter and exit the
State of treatment in accordance with Article 7, mutatis mutandis;
(c) the rules set out in Articles
19 and 27 of Regulation (EC) No 883/2004 shall continue to apply to a person,
covered by Regulation (EC) No 883/2004, who is staying at the withdrawal date
in a Member State, until the end of the stay. The corresponding reimbursement
procedures shall also apply even after the treatment ends;
(d) the rules set out in Articles
67 to 69 of Regulation (EC) No 883/2004 shall continue to apply to awards of
family benefit to which there is entitlement on the withdrawal date to Union
citizens, stateless persons and refugees residing in a Member State as well as
nationals of third countries who fulfil the conditions of Regulation (EC) No
859/2003, residing in a Member State, who are subject to the legislation of a
Member State and have family members residing in the United Kingdom on the withdrawal
date;
(e) in the situations set out in
Article 25(1)(d)(i) or (ii), for any persons who have rights as family members
pursuant to Regulation (EC) No 883/2004, such as derived rights for sickness
benefits in kind, the Regulation and the corresponding provisions in Regulation
(EC) No 987/2009 shall continue to apply for as long as the conditions provided
therein are fulfilled.
2. If, following the grant of a
pension or a benefit based on periods of insurance, employment, selfemployment
or residence in accordance with point (a) of paragraph 1 of this Article, a
Member State is competent for the sickness benefits of a person residing in the
United Kingdom, that person, as well as his or her family members and
survivors, shall be entitled to sickness benefits as set out in Articles 22 to
30, 33 and 34 of Regulation (EC) No 883/2004 (in the case of a pensioner or a
pension claimant), or Articles 17 to 21, 33 and 34 of Regulation (EC) No
883/2004 (in the case of a person receiving a benefit other than pension). The
corresponding reimbursement procedures shall apply.
This provision shall apply
mutatis mutandis as regards family benefits based on Articles 67 to 69 of
Regulation (EC) No 883/2004.
Article 26
Development of law
and adaptations of Union acts
1. Where Regulations (EC) No
883/2004 and (EC) No 987/2009 are referred to in this Regulation and where
those Regulations are amended or replaced after the withdrawal date, the
reference to those Regulations shall be read as referring to them as amended or
replaced, in accordance with the acts listed in [Annex I] to this Regulation.
2. Regulations (EC) No 883/2004
and (EC) No 987/2009 shall, for the purposes of this Regulation, be understood
as comprising the adaptations listed in [Annex II] to this Regulation.
3. The Decisions and
Recommendations of the Administrative Commission shall, for the purposes of
this Regulation, be understood as comprising the list set out in [Annex I].
TITLE IV
OTHER PROVISIONS
Article 27
Free movement
United Kingdom nationals who have
been issued documentation pursuant to Article 11 shall retain the right of free
movement to other Member States in accordance with the relevant provisions of
the Treaties and the legislation to give them effect.
Article 28
Publicity
The Member States shall
disseminate information concerning the rights and obligations of persons
covered by this Regulation, in particular by means of awareness-raising
campaigns conducted, as appropriate, through national and local media and other
means of communication.
Article 29
More favourable
provisions
1. This Regulation shall not
affect any laws, regulations or administrative provisions applicable in a host
State or a State of work which would be more favourable to the persons concerned.
This paragraph shall not apply to Title III.
2. Article 5 and Article 16(1) shall be without
prejudice to the Common Travel Area arrangements between the United Kingdom and
Ireland as regards more favourable treatment which may result from these arrangements
for the persons concerned.
Article 30
Life-long protection
The persons covered by this Regulation
shall enjoy the rights provided for therein for their lifetime, unless they
cease to meet the relevant conditions.
Article 31
Entry into force and
application
1. This Regulation shall enter into force
on the twentieth day following that of its publication in the Official Journal
of the European Union.
2. It shall apply from the withdrawal date.
This Regulation shall be binding in its entirety and
directly applicable in all Member States.
Done at Brussels, xx date 2018.
