The draft Brexit Withdrawal Agreement, dated 14 November 2018, (the Agreement) between the EU and the UK has been published. Here we look at the implications for European Economic Area (EEA) nationals and their family members presently living in the UK or looking to relocate to the UK in the near future.
No change – for now at least
The headline to take from the Agreement is this: no change for EEA nationals and their family members, at least until the end of the transitional period, due to end on 31 December 2020.
Part Two of the Agreement sets out the rights of EEA citizens to live in the UK, and, conversely, UK citizens to live in the EEA.
In short, EEA nationals and their family members can continue to benefit from freedom of movement rights for employment, self-employment, study or economic self-sufficiency as is presently the case (see here for more information on exercising Treaty rights and the current EEA Family Permit and EEA Residence Card procedure).
Theresa May’s wish that Europeans travelling to the UK after Brexit Day, 29 March 2019, should not benefit from the existing generous European regulations regarding freedom of movement (first discussed here) has not come to fruition.
EEA nationals and their family members who travel to the UK and take up residence before the end of the transition period will be allowed to remain with “pre-settled status”. If they then stay for a continuous period of five years, they will become eligible for permanent residence (settled status under the new provisions), (Appendix EU).
An EEA citizen continuously resident in the UK before 31 December 2020 will be able to be joined after that date by close family members who are resident overseas if the relationship existed at that date and it continues to exist when the person wishes to come to the UK, (Appendix EU).
Although the Government has stated that Comprehensive Sickness Insurance will not be required as evidence of exercising a Treaty right as a student or economically self-sufficient person, the requirement still exists in the withdrawal agreement.
EEA nationals and their family members who arrive in the UK before the end of the transition period will be expected to apply for a residence document. The Agreement requires that application forms for this residence status be " short, simple, user-friendly". It also confirms that photocopied evidence will be admissible. Lastly, it provides for people to "voluntarily" start applying for this residence status before the transition period ends.
After the end of the transition period
For EEA nationals seeking to enter the UK once the transition period has ended, the picture is somewhat more blurred. The Outline Political Declaration document states that the UK and the EU will aim to implement:
The Migration Advisory Committee (MAC) which provides guidance to the Government on immigration policy concluded in a report on 18 September 2018 that, following Brexit and the end of the transition period, EEA nationals should not be given preferential treatment over and above that metered out to any other foreign national seeking to enter the UK for the purpose of employment, business or investment.
The Government tends to follow MAC’s recommendations and, if that proves to be the case in this instance, EEA nationals coming to the UK after 31 December 2020 will need to satisfy the requirements of the Immigration Rules.
The UK and other Member States are obliged to disseminate information concerning the rights and obligations of persons covered by the agreement by means of awareness-raising campaigns.
Ireland and the Common Travel Area
There is to be no change to the Common Travel Area arrangements between the UK and Ireland. In particular, there are to be no restrictions on citizens of any of the Member States moving freely between Ireland and Northern Ireland. There is provision for both the EU and the UK to implement proportionate emergency measures if serious economic, societal or environmental difficulties ensue from the operation of the withdrawal agreement in relation to the island of Ireland.
Derivative rights of residence
The Agreement only protects those whose right of residence is governed by EU Directive. Those whose residence rights are derived directly from the Treaty on the Functioning of the European Union will not be protected by the Agreement. What this means is that derivative rights of residence are unchanged for the primary carers of EEA children in education in the UK where the child is the child of an EEA national worker or former worker if requiring the primary carer to leave the UK would prevent the child from continuing their education in the UK).
Other derivative rights, such as Zambrano and Chen cases, are not protected by the Agreement.
Zambrano protects the primary carer of a British citizen child or dependent adult, where requiring the primary carer to leave the UK would force that British citizen to leave the EEA.
Chen protects the primary carer of an EEA national child who is exercising free movement rights in the UK as a self-sufficient person, where requiring the primary carer to leave the UK would prevent the EEA national child exercising those free movement rights.
Frontier workers’ rights are protected. A frontier worker lives in one EU member state and works in another, returning home daily or weekly. This is most common between Ireland and the UK but also between many other Member States and the UK and vice versa. The State in which the employment or self-employment is carried out may require the frontier workers to carry a document to certify their rights as such.
Jurisdiction of the European Court of Justice
Judgements of the European Court of Justice (ECJ) handed down before the end of the transition period will be binding on the UK. The ECJ could potentially remain the ultimate interpreting court on union matters for cases commenced under the Withdrawal Agreement for up to 8 years following the end of the transitional period in December 2020.
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