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Citizens’ Rights Contents

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Chapter 2: The Withdrawal Agreement and citizens’ rights

Overview

10.The Citizens’ Rights provisions are set out in Part Two (Articles 9–39) of the Withdrawal Agreement. Their key points are as follows:

• The continuation of free movement rights8 for UK and EU citizens until the end of the transition period on 31 December 2020, extending residency rights for the duration of this period and enabling EU and UK citizens to move between the UK and EU Member States.
• Following the end of the transition period, a minimum six month ‘grace period’ during which UK and EU citizens living in countries operating a constitutive system, retain their residency rights and can apply for a new residence status in their host country (Article 18).
• The right of EU and UK citizens who have exercised those free movement rights, and their family members, to acquire ‘permanent residence’ status, after accumulating five years’ continuous lawful residence, in accordance with EU law, before or after the end of the transition period (Article 15).
• The right to acquire permanent residence, for those who have not resided in their host state for five years by 31 December 2020, once they meet the requirements (Article 16).
• Discretion for the UK and EU Member States as to whether they require EU/UK citizens to apply for their new residency status (known as a ‘constitutive’ system), or simply register (known as a ‘declaratory’ system).
• The ending of onward free movement rights for UK citizens living in the EU with effect from 31 December 2020. In other words, a UK citizen lawfully resident in one EU Member State, even if he or she has been granted permanent residence in that Member State, is not entitled under the Withdrawal Agreement subsequently to move to another EU Member State.
• The co-ordination of social security provision for those individuals covered by he Agreement, extending beyond the end of the transition period, to ensure that they “are not disadvantaged in their access to pensions, benefits and other forms of social security, including healthcare cover”. (Articles 30–36).
• The establishment of a dispute settlement mechanism (Article 158), allowing a UK court or tribunal to refer a case concerning Part Two to the Court of Justice of the EU (CJEU) for a period of eight years after the end of the transition period.
• The requirement for the UK to establish an independent monitoring body (Article 159), to conduct inquiries on alleged breaches of Part Two by the UK administrative authorities. The body is also empowered to receive complaints from EU27 citizens and their families and to bring legal action on their behalf. The European Commission will have a reciprocal function in the EU27 Member States.

11.In its report, Brexit: the revised Withdrawal Agreement and Political Declaration, published on 9 January 2020, the House of Lords European Union Committee concluded: “The agreement on citizens’ rights is fairly comprehensive and will allow individuals and families to continue with their lives and careers with a minimum of disruption. We therefore broadly welcome the citizens’ rights provisions.”9 At the same time, the Committee acknowledged:

“One of the Government’s primary aims in negotiating Brexit has been a desire to end free movement of people. A necessary consequence has been that the citizens’ rights guaranteed under the Withdrawal Agreement fall short in some respects of those enjoyed during the UK’s EU membership. Most notably, for UK citizens in the EU, onward free movement rights are not guaranteed.”10

Residence status under the Agreement

12.The Agreement provides that all UK citizens lawfully residing in a Member State at the end of the transition period (31 December 2020) will be able to stay in that host state, as will all EU citizens lawfully residing in the UK. Certain family members resident at that same time in a host state are also covered by the rights set out in the Agreement.

13.The conditions for lawful residence in the Withdrawal Agreement mirror those set out in current EU law on free movement.11 Generally, individuals meet these conditions if they are in one of the following categories by the end of the transition period:12

• are workers or self-employed;
• are not workers or self-employed, but have sufficient resources and comprehensive sickness insurance, for example a retired person or a student;
• are close family members of another person who meets these conditions; or
• have already acquired the right of permanent residence.

14.The Withdrawal Agreement’s provisions on citizens’ rights allow the UK and Member States to choose whether or not to require EU citizens, UK citizens and their family members to apply for a new residence status, under two different systems:

• a declaratory residence system, where residence status is given directly to those in scope of the Withdrawal Agreement by operation of the law and is not dependent upon completing administrative procedures. Those eligible for status have the right to receive a residence document confirming this and there may be an obligation under national law to register for a residence document, which evidences the status; or
• a constitutive system, where those in scope of the Withdrawal Agreement only gain a residence status if they submit an application for a new residence status and the application is granted by the host state. Individuals who fail to apply by the deadline for applications will lose the protections afforded by the Withdrawal Agreement to their residence rights.

Constitutive systems

15.Thirteen EU countries opted to operate constitutive systems, setting deadlines by which UK citizens must apply in order to retain their rights. Four of these countries chose the deadline of 30 June: France, Latvia, Malta and Luxembourg. The others chose deadlines in September or December 2021.13

16.Article 18(1) of the Withdrawal Agreement sets out the criteria for the issuance of residence documents under a constitutive system. Article 18(1)(e) 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.”

17.The deadline for applications under a constitutive system cannot be earlier than six months after the end of transition, in other words 30 June 2021.

18.The UK Government’s EU Settlement Scheme (EUSS) is also a constitutive system, implementing the UK’s obligations to EU citizens under the Agreement, as well as those covered by the EEA/EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement (collectively referred to as the Citizens’ Rights Agreements). Citizens wishing to access their Agreement rights had to apply by 30 June 2021. The EUSS grants eligible applicants from the EU, the EEA countries and Switzerland an immigration status (‘settled status’) allowing them to remain in the UK following the end of the transition period.

Declaratory systems

19.Fourteen EU Member States have adopted a ‘declaratory’ system, under which a UK citizen living in the EU attains new residence status automatically, providing the conditions of the Agreement are fulfilled. UK citizens may register for a residence card as proof of that status.

20.States with larger resident populations of UK citizens (including Spain, Germany and Italy) have generally opted for the less onerous, declaratory system, although there are notable exceptions to this rule, such as France and the Netherlands. The Foreign, Commonwealth and Development Office (FCDO) estimates that Member States with a declaratory system account for around 68% of UK citizens in the EU, whereas those with a constitutive system account for around 32%.14

Mobility

21.A notable absence from the Agreement, which has been repeatedly highlighted by campaigners, is the lack of ‘onward free movement’ rights for UK citizens. Rather than having the right to live and work throughout the EU, previously enjoyed under the right to free movement when the UK was a Member State, UK citizens after the transition period only retain these rights with respect to the Member State in which they already lived or worked.

22.The Trade and Cooperation Agreement (TCA) contains business mobility provisions, covering short-term business visitors; business visitors for establishment purposes; intra-corporate transferees; contractual service suppliers; and independent professionals.15 For example, short-term business visitors may enter for a total of 90 days in any 180-day period. The mobility provisions, as with the other services provisions of the TCA, are subject to national reservations (meaning that certain liberalisations do not apply in specific sectors or specific Member States).

23.The EU Services Sub-Committee’s report Beyond Brexit: trade in services, published on 25 March 2021, concluded that: “The TCA’s business mobility provisions represent a major change in the UK-EU trading relationship for services … The impact of these provisions has been delayed by the COVID-19 travel restrictions but will be felt once international business travel resumes.”16

24.It remains a matter of regret to us that the Parties did not address the onward free movement rights of British citizens in the Withdrawal Agreement or the TCA. In our view, this issue is best addressed via international cooperation. Looking to the future therefore, we call on the Government to raise the issue with the EU through the institutional arrangements introduced by the Withdrawal Agreement or the TCA, as appropriate.

Professional qualifications

25.The Withdrawal Agreement provides for some recognition of professional qualifications for EU citizens in the UK and UK citizens in the EU (Article 27). However, in the case of the latter, this recognition only applies in the state where the UK citizen lives or works, rather than on an EU-wide basis. This means, for example, that a UK citizen living and working in Germany will have their qualifications recognised there but would not have those same qualifications recognised in France.

26.There are additional provisions for UK-EU recognition of professional qualifications in the TCA, but these are limited. By default, qualifications are not recognised; instead, the TCA includes a framework allowing regulators and professional bodies to negotiate recommendations for Mutual Recognition Agreements (MRAs) on a profession-by-profession basis, which must then be submitted to the Partnership Council for approval.17

27.The EU Services Sub-Committee concluded that this framework “replicates the CETA [EU-Canada] model, where not a single mutual recognition agreement has been reached in over three years since its entry into force. The likely timelines for achieving recognition on a profession-by-profession basis are thus unclear.”18

28.The Government should support UK regulators and professional bodies in utilising the machinery of the TCA to negotiate and conclude agreements on the mutual recognition of professional qualifications as soon as possible. We would welcome an update on the Government’s priorities in this respect in their response to this report.

Oversight of citizens’ rights under the Agreement

Independent Monitoring Authority

29.In accordance with Article 159 of the Withdrawal Agreement, the UK has established the Independent Monitoring Authority (IMA), to protect the rights of EU and EEA/EFTA citizens in the UK and Gibraltar.19 Beginning its work on 1 January 2021, the IMA monitors the domestic implementation and application of Part Two of the Withdrawal Agreement. It receives complaints and conducts inquiries concerning alleged breaches of the Withdrawal Agreement by UK or Gibraltar public authorities. It also has the power to bring legal action in the UK or Gibraltar, with a view to seeking an adequate remedy if it deems that Part Two of the Withdrawal Agreement is not being implemented or applied correctly. The House of Lords Constitution Committee previously described the IMA as “a new body with a complex mandate and structure which merits further careful scrutiny”.20

30.The IMA’s powers to conduct inquiries are set out in paragraph 2 of Schedule 2 of the EU (Withdrawal Agreement) Act 2020.21 In their submission to us, the IMA described the purpose of such an inquiry as threefold: to “establish whether the United Kingdom has failed to comply with the Citizens Rights Agreements”, to “establish whether a relevant public authority has acted or is proposing to act in a way that prevents a person exercising a relevant right”, and to “identify any recommendations for relevant public authorities appropriate to promote the adequate and effective implementation of the Citizens’ Rights Agreements.”22

31.The IMA may conduct an inquiry following a request from a Secretary of State, a Devolved Administration or the Gibraltar Government; as a result of a complaint or a series of complaints; or on their own initiative. However, unless requested, they will not launch an inquiry unless they have reasonable grounds to believe that a failure to comply with the Citizens’ Rights Agreements has occurred, or that a public authority is preventing a qualifying person from exercising a relevant right.23

32.At the time of writing, the IMA has not launched any full inquiries or brought forward any cases against the Government. The IMA told us that “pre-inquiry investigations are proceeding in regard to eight issues”. These investigations “could include conducting an inquiry to identify whether any breaches of the obligations under the Citizens’ Rights Agreements have or are occurring”, but at the time of submission the IMA stressed that they “would not wish to pre-judge the outcome of that investigative work”.24

33.Our witnesses were broadly positive about the IMA’s work to date. The comments of Kate Smart, CEO of Settled, a charity which supports EU citizens to apply to the EUSS, were typical: “It is early days for the IMA, but, from what we see, it is making every effort to come across as accessible and transparent, and wanting to be an effective service. It is getting off to a good start.”25

34.One potential area of improvement for the IMA is its profile among EU citizens. Kate Smart said that the body was “not necessarily well known among Europeans”, and that people would probably seek recourse from “an advice agency or a voluntary sector agency” in the first instance.26 The IMA itself acknowledged in its submission that “as a new body we face a significant challenge to make stakeholders aware of our existence and role”.27

35.The Independent Monitoring Authority, as required by the Withdrawal Agreement, plays an important role in monitoring the operation of the UK’s EU Settlement Scheme and the protection of EU citizens’ rights. It is therefore essential that it makes a strong and concerted effort to make those citizens aware of its existence and its role to support them to exercise their rights under the Scheme.

European Commission

36.In the EU, the European Commission performs the equivalent role of monitoring compliance in Member States. It receives complaints about alleged compliance breaches via its assistance service. Following the transition period, both the Independent Monitoring Authority and the European Commission will produce an annual report on measures taken to implement or comply with Part Two of the Withdrawal Agreement, including the number and nature of complaints received by these authorities from EU citizens in the UK and UK citizens in the EU respectively.

37.Jane Golding, co-Chair of British in Europe, the largest coalition group of British citizens living and working in Europe, told us about her organisation’s positive experience of engagement with the Commission: “In our engagement … which is very regular, we feed in particularly systemic issues that we see, and it certainly takes them up. We know that it discusses them with Member States and we certainly see the results of that.”28

38.The European Commission, as required by the Withdrawal Agreement, plays an important role in monitoring the implementation of the citizens’ rights provisions in EU Member States and in protecting UK citizens’ rights. We note that groups representing UK citizens report positive engagement with the Commission and we hope this will continue.

Withdrawal Agreement Joint Committee

39.The Withdrawal Agreement Joint Committee, established under Article 164 of the Agreement, oversees UK and EU implementation, application and interpretation of the Agreement as a whole. The Joint Committee’s remit also includes resolving any issues that may arise during the Agreement’s implementation.29 It must meet at least once annually and held its first meeting on 30 March 2020. It published its first annual report on 23 June 2021.30

40.The Joint Committee is co-chaired by the UK and the EU. At the time of writing, the UK co-chair was the Minister of State at the Cabinet Office, Lord Frost, and the EU co-chair was the European Commission Vice-President, Maroš Šefčovič. The Committee supervises the work of six Specialised Committees, including one on Citizens’ Rights, and takes decisions on their recommendations.

41.In its report on the revised Withdrawal Agreement and the Political Declaration, the EU Select Committee noted:

“The Joint Committee will … be critical in ensuring the smooth working of the Withdrawal Agreement. It will be a uniquely powerful and influential body. Decisions adopted by the Joint Committee will be binding on the EU and the UK and will have the same legal effect as the Withdrawal Agreement.”31

At same time, it voiced concern that the extent of the Joint Committee’s “widely drawn power is uncertain”, noting that “its relevant rules suggest that meetings will be confidential, decisions might not be published, and even summary minutes might not be made publicly available. This is an unsatisfactory state of affairs”.32

The Specialised Committee on Citizens’ Rights

42.The Specialised Committee on Citizens’ Rights facilitates the implementation and application of Part Two of the Withdrawal Agreement. The Specialised Committee has a key role in ensuring that UK citizens in the EU, EU citizens in the UK, and their family members are afforded their rights and entitlements under the Agreement. It also advises the Joint Committee on citizens’ rights matters.

43.At the meeting of the Specialised Committee meeting on 23 February 2021, the first since the end of the transition period, the UK and EU agreed that it would meet at least every three months throughout 2021.33 A further meeting took place on 28 April 2021, at which the Third Joint Report on Residence was presented.34 Specific attention at the latter meeting was given to countries with a constitutive system, in light of approaching deadlines for applications and the potential handling of applications submitted after the deadline. Both sides emphasised the importance of providing clear communications and comprehensive support to vulnerable or hard to reach citizens.

44.On 29 June 2021 the Specialised Committee published its Fourth Joint Report.35 Data from this report on Member States’ implementation of their citizens’ rights obligations is set out in Tables 1 and 2.

45.An initial request from British in Europe and the3million (the leading campaign group for EU citizens in the UK) to have observer status at the Specialised Committee received non-committal responses from both the UK and EU, but they were allowed to attend the second meeting of the Specialised Committee held on 6 August 2020. Jane Golding confirmed to us: “We feed in issues to the Specialised Committee and are heard by it, which is quite unusual for a civil society organisation.”36 Similarly, the Specialised Committee has provided a forum for the EU to make representations regarding EU citizens in the UK. In the same way, it is the structure whereby the UK can make representations on behalf of UK citizens living in the EU.

46.Giving an example of the function of the Specialised Committee, Foreign, Commonwealth and Development Minister Wendy Morton MP, responsible for UK citizens’ rights in the EU, told us that the Government had used it to raise issues about difficulties UK citizens had encountered in evidencing their rights in different Member States.37

Prior concerns about the implementation of citizens’ rights

47.On 14 May 2020, the Chancellor of the Duchy of Lancaster and then UK Co-Chair of the Withdrawal Agreement Joint Committee, Rt Hon Michael Gove MP, wrote to his counterpart, Commission Vice-President Maros Šefčovič, citing a range of issues with Member States’ implementation of their citizens’ rights obligations, including communication problems, short application windows and overly complex procedures.38 In June and July 2020, in evidence to the House of Commons Committee on the Future Relationship with the European Union, campaign groups expressed similar concerns, and also highlighted issues with the UK system, particularly in relation to vulnerable individuals who might be missed by the EU Settlement Scheme.39

48.Detailed concerns raised by our witnesses about the UK and Member States’ implementation of citizens’ rights under the Withdrawal Agreement are set out in Chapters 3 and 4 of this report, respectively.

The effect of UK-EU relations on citizens’ rights issues

49.Since January 2021 UK-EU relations have been characterised by a series of problems, including ongoing tensions over the implementation of the Protocol on Ireland/Northern Ireland, a dispute between Jersey and France over the issuing of fishing licences under new arrangements in the TCA, and disagreements over the availability of COVID-19 vaccines.

50.Some of our witnesses expressed concern that these tensions could affect the ability of both sides to resolve any citizens’ rights issues. Jane Golding told us: “A problem at the moment is the relationship between the UK and the EU. I think levels of trust are quite bad … which makes it more difficult for them to have very constructive discussions on these issues.”40 Dr Michaela Benson, Project Lead of the BrExpats Research Project, which examines the impact of Brexit on UK citizens living in the EU27, also said that reports about those tensions in certain sections of the UK media aggravated the difficulties between the UK and EU, in turn increasing the challenges faced by citizens seeking to access their post-Brexit rights.

51.In response to these concerns, Home Office Minister Kevin Foster MP (who has responsibility for the Settlement Scheme) told us that the EUSS was “not based on any ongoing trading relationship or issues like that. It was established before both the Withdrawal Agreement and the comprehensive future partnership agreement were reached with the European Union”.41 As far as EU citizens in the UK were concerned, “People’s status is secure and created under UK immigration law and it will not be affected by any of the current discussions or debates.”42

52.On 24 June 2021 the EU Ambassador to the UK João Vale de Almeida told us that he hoped the difficulties in the UK-EU relationship would not spill over into citizens’ rights matters:

“I look forward to a lowering of temperature in the public discourse about this relationship. I think that it is a collective responsibility to further de-dramatise this relationship and look at concrete answers to concrete problems, within the terms of the agreements we made.”43

53.Currently, the UK, the EU Commission and EU Member States have taken a constructive approach to citizens’ rights, which we welcome. But both sides need to be vigilant that the wider issues in their relationship do not spill over into citizens’ rights issues. Given the importance of these matters to millions of individuals, we recommend both sides continue this positive approach to discharging their citizens’ rights obligations under the Withdrawal Agreement, regardless of wider tensions in their relationship.

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