1Introduction
Citizens’ rights in the Withdrawal Agreement
1.The UK left the EU on 31 January 2020. Part Two of the Withdrawal Agreement, agreed between the UK and the EU, contains articles on citizens’ rights.1 Those citizens, and their family members, covered by the Withdrawal Agreement, are granted rights in terms of residency and the right to work, but also in areas such as social security and healthcare.
2.The UK implemented the Withdrawal Agreement, including provisions relating to the rights of citizens, through the EU (Withdrawal Agreement) Act 2020.2 The Withdrawal Agreement also included provision for the UK to enter a transition period where free movement of people would continue from 1 February to 31 December 2020.
Declaratory or constitutive
3.The Withdrawal Agreement allows for the UK and EU Member States to opt for one of two different systems in order to recognise a person’s eligibility and provide them with evidence of their status, either:
- a declaratory system, where those complying with the conditions automatically have rights under the Withdrawal Agreement, but may apply for a document to provide evidence of those rights
- a constitutive system, where persons are required to apply for a new residence status to attest to their rights under the agreement.3
Article 18(1) of the Withdrawal Agreement sets out the criteria for the issuance of residence documents under a constitutive system.4 This includes Article 18(1)(e), that states:
the host State shall ensure that any administrative procedures for applications are smooth, transparent and simple, and that any unnecessary administrative burdens are avoided
All UK and EU Member States must have a system in place to issue new residence documents on 1 January 2021 at the latest.5 The deadline for applications under a constitutive system cannot be earlier than six months after the end of transition, i.e. 30 June 2021.6
4.We have taken a close interest in the subject of citizens’ rights since we started our inquiry into the negotiations for the UK to leave the EU, just as our predecessors committees did in the two Reports they agreed.7 We would like to thank all those who have taken the time to either send us written evidence or provide oral evidence in person over the last few years. We are acutely aware that this is an incredibly important matter which affects the lives of a large number of people and their families across 28 countries.
5.In this Report, we first discuss the situation for UK nationals living in EU Member States, then similarly for the EU citizens in the UK. Finally, we comment on the need for continuing scrutiny of the implementation of the Withdrawal Agreement in the future.
1 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (2019/C 384 I/01)
2 Commons Library Briefing paper, Citizens’ rights provisions in the European Union (Withdrawal Agreement) Bill 2019–20, 3 January 2020
3 European Commission Guidance note, 12 May 2020 said “In a departure from the fundamental principles of Union free movement rules, Article 18 obliges the host State to make a choice—either to operate a constitutive residence scheme (Article 18(1)), or a declaratory residence scheme (Article 18(4))”
4 Article 18 (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.” Article 18(4) states “ 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.
5 See for example, Letter from the German Ambassador (FRE0123), and Letter from Wendy Morton MP to the Chair of the Committee, 21 July 2020
6 Article 18(1)(b) states that “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.”
7 Committee on Exiting the EU, The Government’s negotiating objectives: the rights of UK and EU citizens, Second Report of Session 2016–17, HC 1071, March 2017; The progress of the UK’s negotiations on EU withdrawal: the rights of UK and EU citizens, Eighth Report of Session 2017–19, HC 1439, 23 July 2018
Published: 20 October 2020