What does the Withdrawal Agreement say about citizens’ rights?

Here we look at what the Withdrawal Agreement and the Political Declaration say about citizens’ rights after Brexit.

Continuous residence for UK and EU citizens

Under the Withdrawal Agreement, EU citizens living in the UK and British citizens living in the EU prior to the end of the implementation period have the right to remain where they are.

The framework for continued legal residence for people residing in their host state prior to the end of the implementation period is set out in the WA. The same rules will apply to each group, but host states have discretion under Article 18 of the WA to require EU/UK nationals to apply for a new residence status, which would verify the individual’s rights accorded by the WA.

The UK has implemented the continuous residence rights for EU citizens and their families through the settled status scheme.

Free movement for UK nationals after Brexit

The Government is seeking to secure ‘onward movement’ rights for UK citizens living in EU Member States at the time of Brexit, but the November WA does not clarify whether this will happen. Onward movement allows citizens to move between Member States under EU law, as opposed to the domestic immigration law of that state. EU free movement provisions are generally more generous than domestic immigration regimes.

Students and economically inactive people will no longer need comprehensive sickness insurance

Currently, students or economically inactive people exercising their rights of free movement under the Treaty on the Functioning of the European Union (TFEU) must hold comprehensive sickness insurance in their host state. Article 18 of the WA permits the UK and EU Member States to require proof of this insurance when considering whether to issue residence documents after Brexit. However, Minister of State for Immigration Caroline Nokes has confirmed the UK will not impose this requirement on those applying under the settled status scheme.

Groups not covered by the WA

The WA suggests that people caring for minors who are unable to exercise movement rights without their non-EU national parents (‘Chen’ children) are covered. Third country national carers for minors who have not left their Member State of birth (‘Zambrano’ children) are not.

On 7 March 2019 the Government laid a Statement of Changes to the Immigration Rules before Parliament. It included, inter alia, changes to Appendix EU to the Immigration Rules, which set out the requirements for settled status. These changes expanded eligibility for settled status to those with derivative residence rights including the Chen, Ibrahim and Teixeira, and Zambrano carer categories. The accompanying Explanatory Memorandum states: 

“The Government has decided that, in light of the particular circumstances of these cases, it is appropriate that their longterm status in the UK should be protected by bringing them within the scope of the EU Settlement Scheme.”

The Government’s previous position was that Zambrano carers are not covered by the WA and that domestic policy proposals relating to Zambrano carers would be set out ‘in due course’. The Home Office had also stated that ‘current rights do not lead to a right of permanent residence under EU law, but further details will be provided in due course on the new status available to them.’

So-called ‘Surinder Singh’ families are also not covered by the WA, but the Home Office has confirmed that those lawfully living in the UK prior to the end of the implementation period will be able to apply for settled status. The Surinder Singh route is open to spouses and families of British citizens returning from an EU member state where they have exercised rights under EU free movement law.

The Common Travel Area and the backstop

The Common Travel Area between the UK and Ireland will continue under the WA and the backstop. The Common Travel Area facilitates free movement of British citizens and Irish citizens between the UK, Ireland, the Channel Islands and the Isle of Man.

The Common Travel Area is separate to EU freedom of movement law.

What does the Political Declaration say?

The Political Declaration sets out some basic guiding principles on citizens’ rights between the UK and the EU after the end of the implementation period. It confirms that free movement will end, and that mobility will be based on non-discrimination and reciprocity. Short-term travel should be visa free, and allowances made for temporary entry/stay for business in defined areas. Consideration of conditions of entry and leave for research, study, training and youth exchange is also proposed.

Further information on the future UK immigration system for EU nationals is expected to be in the government’s Immigration White Paper. The Paper was expected in autumn this year but the Home Secretary, Sajid Javid, told BBC Radio 4’s Today Programme that it is very unlikely to be published prior to the meaningful vote.

What if there is no deal?

The Department for Exiting the European Union published a policy paper on 6 December 2018 regarding citizens’ rights if there is a no-deal Brexit. It commits to the protection of citizens’ rights of EU nationals living in the UK prior to 29 March 2019 even if there is no deal, via the settled status scheme. As Professor Steve Peers comments, ‘this would not be an international law obligation, so the UK government would be free to change the details at some later date,’ although he notes that the government does not currently intend to do so.

There would be no transition period without the WA. For information on the immigration rules that would apply to EU citizens moving to the UK after Brexit in a no-deal scenario, see our Insight EU Citizens in the UK and a ‘no-deal’ Brexit.

Free Movement, a prominent immigration law website, has commented in response to the policy paper that ‘if there is no deal, the protections on offer to EU citizens will be diluted in important ways.’ These include the earlier free movement cut off from 29 March 2019 and reduced family reunion and appeal rights.

The paper calls ‘on the EU and Member States to uphold their commitments to citizens and to protect the rights of UK nationals in the EU in the event of a “no deal” scenario.’

The section ‘Groups not covered by the WA’ was updated on 13 March to include information on the Government’s statement of 7 March.

Further reading: The UK’s EU Withdrawal Agreement looks at the WA and citizens’ right in detail.

Hannah Wilkins is an Immigration and Asylum Researcher at the House of Commons Library.

The information was correct at time of writing. However, as a result of the changing Brexit landscape the dates referred to may no longer be current.

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Image: London Heathrow by Herry Lawford, licensed under CC BY 2.0