Brexit Together With Eu27 Citizens’ Rights: A Proposal For A Protocol

Stijn Smismans, Professor of Law, School of Law together with Politics, Director of the Centre for European Law together with Governance, Cardiff University

Since the European Union together with UK presented a (partially) agreed draft version of the Withdrawal Agreement (WA) inward March 2018, many appear to assume that the post-Brexit status of the to a greater extent than than 3 meg EU27 citizens inward the UK (and to a greater extent than than a meg British citizens inward the EU) is resolved.  The European Union has indeed made an of import seek to define together with obtain a status for those citizens that comes roughly their electrical flow rights.  However, the ground has peculiarly focused on the fabric compass of these rights, rather than on the physical care for through which people volition live recognised entitlement of those rights.  In fact, many people who receive got been legally inward the UK for years or decades are at peril of failing to bear witness their entitlement to remain 1 time the UK has left the EU. 

The fundamental job is that the Withdrawal Agreement is built on a flawed premise.  It assumes that past times copying the criteria of Directive 2004/38/EC (the Citizens Directive) relating to the acquisition of residence rights, EU27 citizens volition live guaranteed the same status as they grip today.  In a nutshell, inward monastic say to obtain residence rights provided past times the Directive, 1 needs to live inward piece of work (or receive got been inward work), or present to receive got sufficient resources together with comprehensive sickness insurance. There is a marking of discretion for the Member States on whether together with to what extent they impose together with command these criteria.  However, applying these criteria volition operate real differently 1 time the UK leaves the European Union than when it was notwithstanding an European Union member. 

First, after Brexit European Union citizens inward the UK volition no longer live protected past times all judicial remedies provided nether European Union law. The infringement physical care for volition no longer apply. Neither tin terminate Francovich damages live asked for inward the national court.  There are notwithstanding doubts on how just the UK volition ensure abide by of straight effect of the WA’s citizens provisions; together with 1 tin terminate interrogation to what extent UK courts volition brand utilisation of the time-limited alternative to inquire preliminary references.  Courts receive got a considerable discretion inward this, together with 1 wonders to what extent judges volition experience inclined to brand utilisation of it 1 time the UK is no longer business office of the EU.  The UK has already shown bad implementation of the Citizens Directive (for instance inward relation to Comprehensive Sickness Insurance) fifty-fifty as a Member State of the EU. Without the total protection of the European Union judicial system, right enforcement of the Directive together with the WA post-Brexit volition travel fifty-fifty to a greater extent than problematic.

Secondly, 1 time the UK withdraws from the EU, the criteria of the Citizens Directive volition live applied inward a constitutive rather than a declaratory registration system. Under a constitutive organisation people receive got to successfully apply inward monastic say to obtain a residence status.  In instance of rejection, an applicant volition receive got no document certifying their status; as a outcome they volition lose all entitlements together with ultimately confront deportation.  The consequences of non obtaining a ‘settled status’ document are thus far to a greater extent than serious than non obtaining a permanent residence bill of fare nether European Union law.  In a declaratory system, absence of a document does non hateful that you lot are non entitled. Even if your application is rejected you lot mightiness notwithstanding live able to rest on a temporary basis, or mightiness live able to render nether costless displace provisions.  The consequences of a constitutive registration organisation tin terminate live peculiarly dire if combined alongside the UK’s so-called ‘hostile environment’ policy on immigration.

Thirdly, applying the criteria of the Citizens Directive inside a constitutive organisation is peculiarly problematic inward the UK context because the province never registered European Union citizens upon arrival.  Requiring citizens who for illustration may receive got lived inward the UK for decades to retrospectively bear witness their legal status may bear witness highly problematic inward many cases.  The recent Windrush scandal exemplifies the dramatic consequences of such an approach.

Finally, the sheer number of people to live registered inside a brusk catamenia of fourth dimension makes a stiff application of the Citizens Directive practically impossible together with undesirable.  This has also been recognised past times the UK Government. The UK’s implementation of the European Union permanent residence registration physical care for has a electrical flow rejection charge per unit of measurement of 28%.   If a similar interpretation of the Directive criteria together with registration was to live applied to to a greater extent than than 3 meg European Union citizens, this could receive got disastrous consequences.

It is, therefore, rather shocking that the European Union has agreed a WA that simply copies the Directive criteria, pretending that all those currently profiting from European Union costless displace rights inward the UK would notwithstanding live protected after Brexit, together with underestimating the special challenges of applying these criteria inward a real different context.

The UK Government itself has stated that a stiff application of the criteria is both impossible together with undesirable.  Thus it has promised that it would non apply the criteria of Comprehensive Sickness Insurance (CSI) together with ‘genuine together with effective work’ together with that it would instead innovate a elementary registration organisation based on proof of identity, residence together with criminality checks.  But, these are simply political statements. The Government tin terminate modify its seat at whatsoever time, perchance introducing a registration organisation non dissimilar from the electrical flow physical care for for permanent residence applications, alongside that departure that after Brexit the physical care for would live constitutive inward nature.  This would hateful that close 28% of 3 meg European Union citizens would at nowadays confront the hard consequences of the UK’s ‘hostile environment’ together with live threatened alongside deportation.

So why has the European Union non made to a greater extent than seek to ensure the UK’s political statements would live turned into legal commitments together with thus avoid such a scenario?

The European Commission has taken a formalistic approach arguing that European Union citizens retain the same entitlements as nether the European Union Citizens’ Directive, together with thus pretending they are non at risk. However, that fails to admit that these criteria cannot operate inward the same way when they are applied inward a province that never had registration together with volition innovate a constitutive registration organisation when it is no longer a Member of the EU.  The refusal to receive got this reasoning seems to live inspired past times the fearfulness that writing to a greater extent than details into the WA on a simpler registration organisation inward the UK would lay the other 27 Member States nether pressure level to apply a similar procedure, together with thus de facto undermine the discretion allowed past times the Citizens’ Directive.

However, the WA is an international treaty.  It tin terminate laid special provisions for the UK (as, inward fact, it does on other issues, such as requiring an independent potency to live laid upward inward the UK), together with this approach would live justified past times the fact that the legal province of affairs inward a province out of the European Union is non identical to that of countries inward the EU. Hence, legally this tin terminate live done inside the WA without imposing novel requirements on the other 27 Member States.   Nevertheless, if in that location is political reluctance past times the remaining Member States, an alternative solution is to start the UK’s political statements regarding a elementary registration based simply on residence, ID together with criminality banking company check into a Protocol attached to the WA.  A Protocol would non modify the primary text of the WA, but simply start legally the political promises the UK has made alongside regard to how it volition implement the WA. The aim of adopting a Protocol is to brand these unilateral commitments past times the UK legally binding at the international level.  This is because a Protocol has the same legally binding strength as an international treaty similar the WA.  Protocols tin terminate start farther details, oft signed past times together with applicable to alone some parties to the primary international treaty.

Given that the Brexit withdrawal negotiations are based on the regulation ‘nothing is agreed until everything is agreed’, such a revision of the WA or the inclusion of a Protocol specific for the UK is notwithstanding possible.  Whether this is politically achievable depends on several actors.  It is non clear to what extent the formalistic approach of the European Commission was actually inspired past times noun resistance from the Member States.  The negotiation has been strongly driven past times the European Commission, inside a real brusk fourth dimension frame, leaving the Member States piffling fourth dimension to teach through the nitty-gritty complex citizens’ rights provisions of the WA. Whether the UK is gear upward to concur to such a revision of the WA or to signing upward to a split upward Protocol depends on bargaining ability inward the negotiations.  From its perspective, it comes downwards to setting out legally a commitment it had already made politically, but it mightiness live real reluctant to do so at an international level.

Yet, the UK regime may live willing to do so if the European Union offered liberty of displace throughout the entire European Union for the British citizens already residing inward Europe, which remains the biggest weakness of the WA for this group.  The European Parliament mightiness live the ultimate dealmaker on this issue.  It has presented itself as the large defender of citizens’ rights inward the Brexit negotiations together with has repeatedly stated it volition non approve the WA if it has no guarantees on their protection.  Yet, to defend European Union citizens properly it has to realise that the fundamental number is no longer whether the WA copies all rights of the citizens’ Directive, including the right of residence for a 3rd province spouse, but whether it provides procedural guarantees on the registration organisation that convey into line organisation human relationship the special challenges of the UK post-Brexit.

In the balance of this newspaper I volition render a draft of a Protocol to exemplify what travel it tin terminate play together with how it could live written.  There is no 1 unmarried way inward which such a Protocol could live drafted or used.  The exact content volition depend on how the UK intends to implement the Withdrawal Agreement, together with formulation of the exact provisions volition evidently live done past times legal drafters.  The aim of this proposal is to present what a Protocol could await like, how it would operate together with what would live its primary provisions.   At the same time, the proposal is non an ‘ideal type’ solution, but is based on several intentions the UK Government has made clear:

1)        The UK Government has committed to a physical care for that volition live elementary together with based on ‘residence, identity, together with criminality check’. It has repeatedly stated that it volition neither require proof of Comprehensive Sickness Insurance, nor of ‘genuine together with effective work’.  The latter implies that the UK volition non apply whatsoever way testing inward its registration procedure. Under European Union law, way testing is alone possible if 1 fails the seek out of ‘genuine together with effective work’.  Hence, if the UK were to innovate way testing without a preceding seek out of ‘genuine together with effective work’, it would live inward breach of European Union police together with the commitments of the Withdrawal Agreement.

2)        The WA allows for the creation of either a constitutive or a declaratory registration system.  The UK Government has stated it volition innovate a constitutive registration system.  As it is politically highly unlikely that the UK could live persuaded to receive got a declaratory system, or to revise the WA inward that direction, this proposal for a Protocol is based on the premise that a constitutive organisation volition live introduced.

3)        The UK Government has proposed an online registration system, through which people would apply together with the Home Office volition together with so banking company check information making utilisation of existing databases from the revenues collection together with the piece of work together with pensions regime departments (i.e. HMRC together with DWP).  The total details of this physical care for receive got non yet been communicated.  Neither are in that location yet whatsoever noun details of how people tin terminate apply if they receive got no online access or they confront other barriers that volition arrive harder for them to apply.  On the ground of the available information, this proposal suggests a registration physical care for that allows either application online (as start inward Article 2(2) together with (3) of the proposed Protocol) or application via postal service or contact alongside local services such as passport service (set out inward Article 2(4))

As the exact way the UK intends to implement the UK is non yet clear, this proposal for a Protocol cannot live read as a total legal translation of the UK’s intentions. Moreover, I receive got included some provisions necessary to protect European Union citizens’ rights but that travel beyond what the UK Government has promised inward its political statements.

Barnard & Peers: chapter 27

Photo credit: Business Insider UK

Protocol on the implementation of the Withdrawal Agreement past times the United Kingdom

Article 1

Implementation of Article 4 WA

The UK shall ensure compliance alongside Article 4(2) of the Withdrawal Agreement via the adoption of a Withdrawal Agreement together with Implementation Bill.  This human activity of primary legislation will:

a)         include a provision ensuring the straight effect together with supremacy of Part II of the WA as start inward Article 4(1) paragraph 2 of the WA

b)        fully contain the provisions of Part II of the WA, together with inward special the detailed provisions of the registration physical care for as start inward Article 2 of this Protocol.  

Explanation

The Joint Report promised that the Withdrawal Agreement together with Implementation Bill volition ensure straight effect, but at the same fourth dimension it required for the citizens’ rights provisions of the Withdrawal Agreement to live fully incorporated inward that Bill. This provides a double guarantee; namely a supranational guarantee via straight effect together with protection via primary legislation to avoid that citizens’ rights provisions are start inward ever- changing together with difficult-to-monitor acts of secondary legislation.  Unfortunately, the WA is less clear inward this regard.  This Article 1 of the Protocol clarifies the interpretation of Article 4 WA, so it is inward line alongside the promises made inward the Joint Report. 

As the UK volition live no longer business office of the European Union judicial system, the tool of straight effect on its own, independent of other features of that system, volition non live sufficient to guarantee European Union citizens their rights.  Hence, it is also necessary for their rights to live start inward primary legislation. In special where the Withdrawal Agreement leaves discretion to the Host State (such as on the application of Article 17WA), the UK should brand its fundamental choices of implementation via primary legislation setting out the primary applicable rules inward the Withdrawal Agreement together with Implementation Bill together with non delegate this discretion to secondary legislation.  This does non hateful that for certain administrative implementation measures cannot live delegated to affirmative secondary legislation, but the fundamental features as start inward this Protocol should live start inward primary legislation.

Article 2

Implementation of Article 17 WA

The UK volition implement Article 17 inward the next way:

1. The Great Britain volition require European Union nationals, their respective identify unit of measurement members together with other persons, residing inward its territory inward accordance alongside the weather condition start inward Part II, Title II, to apply for residence status which confers the rights nether this Title together with a physical document evidencing such status.

The application physical care for shall comply alongside the weather condition start inward Article 17.

Explanation

This showtime paragraph confirms that the UK registration physical care for volition comply alongside all the provisions of Article 17 WA.  It commits the UK to providing a physical document as proof of status.  The WA allows for alone a digital document.  In lite of the UK’s 'hostile environment' to immigration (which requires individual actors such as banks, employers together with landlords to banking company check on the status of immigrants) a digital document volition non live sufficient protection for those benefiting from the WA.  Ideally, the WA itself needs to live amended on this issue, as it is every bit a potential job for British Citizens wishing to do goodness from the WA inward Europe.

2. European Union citizens falling nether Title 2 of Part II of the WA tin terminate apply via an online procedure, which requires:

a) proof of identity as required nether Article 17, 1(i)

b) a disputation that the applicant is resident prior to the terminate of transition for those applying for temporary residence; or resident for to a greater extent than than 5 years for those applying for settled status

Explanation

It is anticipated that most European Union citizens volition live able to apply online for their respective status.  For many this physical care for could live minimal together with roughly a ‘declaratory’ procedure. From the information so far communicated, it seems that the Home Office seeks to flora a physical care for where European Union citizens tin terminate apply by:

1.        providing evidence of identity, which tin terminate live done past times scanning passport/ID; and

2.        Making a disputation on residence. 

This volition together with so prompt the Home Office to confirm the validity of the ID together with banking company check their together with other regime agencies existing databases that those applying encounter the relevant residence criteria. 

For many (potentially most) the physical care for should live concluded at this stage.   Only if the Home Office has no confirming information, it volition inquire for additional information, as start inward the adjacent paragraph.

3. The Government volition banking company check the validity of the identity together with and so banking company check the disputation against existing databases.  The Government tin terminate require that the applicant provides farther proof regarding:

a) identity: past times presentation of the identity bill of fare or passport. In abide by of Article 17,1(i) the management shall render that document upon application without delay together with earlier the determination on the application is taken.

b) residence:

(i) For temporary residence application, 1 document showing residence inward the final twelvemonth earlier the application. As required past times the WA the evidence must present residence past times the final twenty-four hr catamenia of the transition period.

Examples of acceptable items of proof are:

•          Letters or other documents from regime departments or agencies, for illustration HM Revenue together with Customs, Department for Work together with Pensions, DVLA, TV Licensing.

•          Letters or other documents from your GP, a infirmary or other local wellness service close medical treatments, appointments, domicile visits or other medical matters

•          Bank statements/letters

•          Building social club savings books/letters

•          Council taxation bills or statements

•          Electricity and/or gas bills or statements

•          Water rates bills or statements

•          Mortgage statements/agreement

•          Tenancy agreement(s)

•          Contract of occupation showing address

•          Telephone bills or statements

Explanation

This listing is just an example. The objective is non to start an exhaustive listing inward the Protocol.  However, ideally, a non-exhaustive listing could live outlined inward the Protocol together with inward the Withdrawal Agreement together with Implementation Bill (WAIB), spell a total listing could live start past times delegated legislation (ideally alongside the affirmative procedure). Yet, the determination on such delegation would live taken inward the WAIB together with non inward the Protocol.

 (ii) Applicants applying for settled status relying on 5 years continuous residence; 1 document from the listing provided inward 3(b)(i) above, for each twelvemonth inward whatsoever catamenia of 5 successive years.  The 5 documents tin terminate bridge a catamenia of half dozen years if the applicant has been absent for less than 1 total year.  

(iii) Applicants falling nether Article 17 Directive 2004/38/EC are required to nowadays 1 document for each twelvemonth of their shorter qualification period. Additionally, 1 has to render 1 document of this listing showing residence inside the twelvemonth preceding the application, together with at the latest at the final twenty-four hr catamenia of the transition period, inward monastic say to bear witness continuity of residence.

They receive got to render evidence of beingness entitled to the shorter qualification catamenia provided past times Article 17 Directive 2004/38EC.

In abide by of Article 7,1(j) supporting documents other than identity documents may live submitted inward copy. Originals of supporting document tin terminate live required alone inward specific cases where in that location is a reasonable uncertainty as to the authenticity of the supporting documents submitted.

Explanation

This explains how the UK volition apply criteria inward relation to settled status, inward abide by of the WA together with Directive 2004/38.  Please annotation Article 16(3) of the Directive provides that permanent residence may non live obtained inward the instance of absence for an uninterrupted catamenia of half dozen months during the 5 years, but extends this to 1 twelvemonth inward some cases similar pregnancy.  The organisation proposed hither inward this Protocol allows maximum 1 twelvemonth of absence during the five-year period.  To avoid overload of the application physical care for it does non require proof of continuity of residence other than proof of continuing residence brusk (one year) earlier application. There is no requirement to bear witness that 1 has non been absent for to a greater extent than than 2 years since edifice upward the 5 years.

4. In alternative to the physical care for provided nether paragraph 2, the applicant tin terminate apply:

a) via presentation of the documents listed inward paragraph 3, to a local passport service

b) via presentation of the documents listed inward paragraph 3 via postal application

Explanation

This volition peculiarly facilitate registration for those who do non receive got access to online registration.

5. Family members of European Union citizens falling nether Title 2 of Part 2 of the WA tin terminate apply, past times providing evidence of:

a) identity, as defined inward 3a) of this Protocol

b) human relationship to European Union citizen entitled nether the WA, inward abide by of proof of documents as defined inward Article 17 (l) together with (m)

Such applications tin terminate live online, via passport service or via postal application.  Applications tin terminate live made articulation alongside the European Union citizen to whom they are identify unit of measurement member.

Explanation

The application for identify unit of measurement members is past times providing proof of identity together with human relationship to European Union citizen who is entitled nether the WA.  Documents are those as accepted inward Article 17 WA.

6. The UK Government tin terminate apply criminality checks at the fourth dimension of application inward abide by of Article 17(1)(p) of the Withdrawal Agreement, together with inward abide by of Directive 2004/38/EC as start inward Article 18(1) of the Withdrawal Agreement.  EU citizens together with their identify unit of measurement members volition non live asked to declare criminal convictions.

Explanation Article 17(1)(p) allows host states to inquire applicants for a self-declaration.  However, this is hugely problematic together with non required.  Countries tin terminate banking company check criminality anyway without applicants needing to brand such declaration.  Self-declaration is mainly a trap so people who declare wrongly their criminal past, deliberately or unknowingly, tin terminate live sanctioned together with deported on this basis.  The number is peculiarly salient as the UK has shown clear intentions to utilisation criminality checks as a fundamental selection tool together with in that location are examples of electrical flow practise on this affair already inward breach of European Union law.  While enforcement of European Union police has already proven hard inward the UK, it volition live fifty-fifty to a greater extent than so postal service Brexit.  Hence inward monastic say to properly protect European Union citizens it is necessary to brand clear such self-declaration volition non live applied.  This tin terminate live done either inward the Protocol or past times changing the WA on this. The latter would live preferable as it volition also render protection for British citizens inward the EU.

7. European Union citizens together with their identify unit of measurement members who receive got non successfully applied past times the terminate of the grace catamenia volition non live deprived of the rights Part II of the Withdrawal Agreement confers without beingness previously contacted past times the UK authorities alongside a asking to apply next the physical care for start inward paragraphs 2 to 4 of this Protocol.

Explanation

Some vulnerable people mightiness non receive got applied prior to the terminate of the grace catamenia because they receive got non been properly informed or did non know how to apply.   Not belongings a document to ascertain their status is probable to displace these people problems inward accessing services, peculiarly inward the context of the hostile environs policy.  However, these vulnerable people should live protected from beingness hitting past times all the punitive measures of the hostile environment.  They should non live deprived of the rights they may grip nether the WA, without been given a peril to bear witness their status at the 2nd their lack of registration emerges.   

8. European Union citizens who receive got obtained settled status grip this status for life, alongside exception of the situations provided inward Articles 14(3) together with xviii of the Withdrawal Agreement. People who receive got lost their document evidencing their status volition live provided alongside a novel document simply on the ground of proof of identity, alongside abide by of weather condition as start inward Article 17. They volition non live asked to render 1 time again the master copy documentation at the ground of their status. Neither volition they live asked to render novel proof.   The same applies inward instance the document confirming settled status is acre of written report to renewal.  Such renewal volition neither require the master copy documentation nor novel evidence, but volition simply live delivered past times proof of identity.

Explanation

Article 14(3) WA states that settled status tin terminate live lost after 5 years of absence.  Article xviii WA allows deportation for criminality on grounds beyond Directive 2004/38 for acts postal service transition.  Only an indefinite right to render together with deportation on grounds as defined past times the Directive volition ensure that European Union citizens grip a status that equals their electrical flow status.  This would require amending the text of the draft Withdrawal Agreement. However, independently of whether the WA is revised, it is of import to brand clear that loss of the document or renewal of settled status should non live abused as a way to undermine European Union citizens’ established rights.  Unfortunately, electrical flow UK immigration police practise provides multiple examples of situations where people are asked to render evidence all over 1 time again when documents are due to live renewed or receive got been lost.   If applied to settled status, this would hateful that people are never for certain of their status, together with volition remain inward a permanent province of affairs of having to bear witness their entitlement for the ease of their life.

9. Article 17 (1)(e) volition live implemented inward compliance alongside the General Data Protection Regulation.

Explanation Article 17(1)(e) requires a transparent procedure.  The UK has just introduced an exemption on information protection inward immigration related matters.  This bluntly undermines the information protection rights provided past times the GDPR together with puts European Union citizens at peril of non beingness able to struggle judicially measures taken against them past times the Home Office.  The Protocol should brand clear that the GDPR volition live respected inward relation to the implementation of the WA.

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