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The Withdrawal Agreement

Part Two of the UK-EU Withdrawal Agreement (WA) protects the post-Brexit residence rights of EU citizens living in the UK and British citizens living in the EU. It covers people who took up residence before the end of the transition period (31 December 2020).

The Withdrawal Agreement permits either ‘declaratory’ or ‘constitutive’ systems for verifying a person’s protected rights. A declaratory system recognises the rights of eligible citizens by automatic operation of law, whereas a constitutive system requires those eligible to apply for recognition.

The deadline for applications has now passed in every country operating a constitutive system, including the UK, although late applications are still possible if there are “reasonable grounds”.

The EU Settlement Scheme in the UK

The UK adopted a constitutive system, requiring EU citizens to apply for post-Brexit residence rights. As of 30 June 2022, 5.9 million people had applied to the Settlement Scheme. This exceeded initial expectations, although the number of people potentially eligible is unknown.

To date, there have not been widespread reports of people experiencing hardship through loss of immigration status after failing to apply in time. But campaigners and charities continue to raise issues with the scheme, including the lack of a physical residence document to prove status once obtained.

The Independent Monitoring Authority for EU citizens’ rights has taken the Government to court over the requirement for some people to apply to the scheme twice to secure their rights, which it argues is a breach of Withdrawal Agreement.

British citizens in EU Member States

The following Member States adopted a declaratory system, granting residence rights automatically to British citizens lawfully resident on their territory at the end of December 2020:

  • Bulgaria; the Czech Republic; Germany; Estonia; Ireland; Greece; Spain; Croatia; Italy; Cyprus; Lithuania; Poland; Portugal; and Slovakia.

In some cases British citizens were still required, as an administrative formality, to register with national authorities and apply for a new residence document in order to certify their new residence status.

The following Member States adopted a constitutive system, meaning British citizens resident at the end of December 2020 needed to apply for a new residence status:

  • Belgium; Denmark; France; Latvia; Luxembourg; Hungary; Malta; The Netherlands; Austria; Romania; Slovenia; Finland; and Sweden.

The deadline for applications had passed in all of these Member States by the end of 2021, subject to the late application policy required by the Withdrawal Agreement.

British citizens living in EU Member States, and organisations representing them, have raised concerns about difficulties faced in confirming their rights under the WA. Issues raised include difficulties in providing evidence of residence rights, delays in applications being processed and difficulties accessing appeal processes.

In declaratory systems, concerns have been raised about how British citizens are expected to provide evidence of their status (in the absence of the need to apply for a new residence status) and the impact this has on accessing services and other entitlements for residents in the host Member State.  Where Member States require British citizens to obtain a new residence card, delays have led to some facing problems in travelling outside of the country and in accessing health care and other entitlements.

Organisations representing British citizens in the EU have also raised concerns about the absence of Member State-level organisations to ensure Withdrawal Agreement rights are being properly implemented, and whether the European Commission is fully equipped to take on this role at an EU-wide level.

The UK Government has raised concerns about the implementation of Withdrawal Agreement rights for British citizens in the EU in the UK-EU joint committee which oversees implementation of Part Two of the WA. This includes concerns about the process for late applications in constitutive Member States, and about evidencing status and access to benefits and services for British citizens in declaratory Member States.

The Parliamentary Partnership Assembly

This briefing was prepared for a breakout session at the second meeting of the UK-EU Parliamentary Partnership Assembly (PPA), held in the UK Parliament on 7-8 November 2022. The PPA was established under the UK-EU Trade and Cooperation Agreement and includes members of the UK Parliament (MPs and Peers) and Members of the European Parliament.

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