Eu27 In Addition To Uk Citizens’ Acquired Rights Inward The Brexit Withdrawal Agreement: Detailed Analysis In Addition To Notation

Professor Steve Peers, University of Essex*

The number of the acquired rights of EU27 as well as UK citizens has long been a focus of this blog. The latest evolution inwards this acre is the proposed rules inwards the Brexit withdrawal agreement on this issue, every bit lately tabled yesteryear the Commission. This follows on from the partial understanding on this number inwards the joint report agreed yesteryear the UK as well as EU27 inwards December, which I analysed here. (Note that the wellness constabulary implications of this share of the understanding were already discussed here yesteryear Professor Tamara Hervey, who proposed roughly additional amendments).

It remains to live seen whether the UK agrees to the Commission proposal on these issues; although a large share of the proposal reflects the Dec understanding inwards full general terms, roughly points were left opened upwards as well as inevitably a legal text fleshes out points of special which mightiness non have got been fully agreed inwards the previous, to a greater extent than political, text.

Baca Juga

Even if the UK as well as EU27 side do concord on all the content of these proposals, in that location is a take a chance that this understanding is torpedoed because of failure to concord on (or ratify, if agreed) the residue of the withdrawal agreement. For that ground I have got argued that the understanding on these issues ought to live ring-fenced, ideally every bit presently every bit possible but for sure if the principal talks fail. I have got also suggested the text of a ring-fenced treaty on citizens’ rights, only extracting the relevant text of the Commission proposal.

While the Commission proposals go a long way to guarantee the acquired rights of all concerned, in that location are silent many possible omissions as well as uncertainties. I have got pointed to all those I could discover, inwards special every bit regards: EU27 citizens or UK citizens who homecoming to their province of nationality; the non-EU parents of UK children; carers as well as others who have got non had “comprehensive sickness insurance” every bit defined (rather questionably) yesteryear the UK, as well as did non realise they needed it; other aspects of the “settled status” proposal; information protection rights; dual citizens of the UK as well as roughly other Member State; as well as the loss of costless displace rights yesteryear UK citizens inwards the EU27.

On all of these issues – as well as to a greater extent than – I have got proposed amendments. I hope the weblog shipping service is peculiarly useful to those negotiating the withdrawal agreement, as well as those campaigning for amendments (see also the detailed proposals of British inwards Europe, for instance).

But inwards parallel to this detailed analysis it’s fair to say that nosotros sometimes lose sight of the day-to-day human impact of immigration law. I’ll homecoming to this betoken shortly with a rather to a greater extent than personal shipping service close what the issues I verbalize over inwards special hither hateful inwards practice.

Structure of the withdrawal agreement

Part Two of the withdrawal understanding (Articles 8-35) deals with citizens’ rights, as well as is the principal focus of this blogpost. But I also annotate hither the closely connected Part One, setting out the “Common Provisions”. The remaining titles concern “separation provisions” (Part Three: Articles 36-120); the transition (or implementation) catamenia (Part Four: Articles 121-126); the fiscal small town (Part Five: Articles 127-150); as well as the “Final Provisions” inwards Part Six (Articles 151-168). There volition also live Protocols on the Irish Gaelic border as well as Cyprus.

I have got previously annotated the proposals on: the transition (or implementation) period, the lastly provisions of Part Six (mainly focussing on dispute small town as well as the role of the CJEU); as well as the Irish border. Those provisions have got roughly cross-overs with the citizens’ rights rules, every bit discussed inwards special below. In particular, it should live noted that the UK authorities lately tabled a counter-proposal on the rights of EU27 citizens who go far during the transition/implementation period.

Within Part Two, in that location are 4 titles:

- Title I on General Provisions (Articles 8-11), which covers definitions, personal scope, continuity of residence, as well as non-discrimination;

- Title II on Rights as well as Obligations (Articles 12-27), with Chapter 1 on residence rights as well as documents (Articles 12-21), roofing entry as well as leave of absence rights, residence rights, status, the application process, safeguards as well as appeal rights, related rights as well as equal treatment; Chapter 2 on the rights of workers as well as self-employed persons (Articles 22-24), Chapter 3 on professional person qualifications (Articles 25-27);

- Title III on Social Security (Articles 28-31); as well as

- Title IV on Other Rights (Articles 32-36).

*This weblog shipping service was supported yesteryear an ESRC Priority Brexit Grant on 'Brexit as well as UK as well as European Union Immigration Policy'

Barnard & Peers: chapter 27, chapter 13

Photo credit:

Annex – proposed text of withdrawal agreement, Parts One as well as Two, annotated

PREAMBLE

THE EUROPEAN UNION AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND,

[…]

HAVE AGREED AS FOLLOWS:

PART ONE

COMMON PROVISIONS

Article 1

Objective

This Agreement sets out the arrangements for the withdrawal of the UK of Britain as well as Northern Republic of Ireland ("United Kingdom") from the European Union (“Union”) as well as from the European Atomic Energy Community (“Euratom”).

Comment: Note the withdrawal from Euratom every bit good every bit the EU. This is hard, if non impossible, to avoid, for the reasons I verbalize over here.

Article 2

Definitions

For the purposes of this Agreement, the next definitions shall apply:

(a) "Union law" means:

(i) the Treaty on European Union ("TEU"), the Treaty on the Functioning of the European Union ("TFEU") as well as the Treaty establishing the European Atomic Energy Community ("Euratom Treaty"), every bit amended or supplemented, every bit good every bit the Treaties of Accession as well as the Charter of Fundamental Rights of the European Union, together referred to every bit “the Treaties”;

(ii) the full general principles of Union law;

(iii) the acts adopted yesteryear the institutions, bodies, offices or agencies of the Union;

(iv) the international agreements to which the Union or Euratom is political party as well as the international agreements concluded yesteryear the Member US acting on behalf of the Union or Euratom;

(v) the agreements betwixt Member US entered into inwards their capacity every bit Member US of the Union or of Euratom; as well as

(vi) acts of the Representatives of the Governments of the Member US coming together within the European Council or the Council of the European Union ("Council");

(vii) the declarations made inwards the context of intergovernmental conferences which adopted the Treaties.

(b) "Member States" agency the Kingdom of Belgium, the Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Republic of Croatia, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Republic of Finland as well as the Kingdom of Sweden;

(d) "United Kingdom national" agency a British citizen, every bit defined inwards the New Declaration yesteryear the Government of the UK of Britain as well as Northern Republic of Ireland of 31 Dec 1982 on the definition of the term ‘nationals’ together with Declaration No 63 annexed to the Final Act of the intergovernmental conference which adopted the Treaty of Lisbon;

(e) “transition period” agency the catamenia provided inwards Article 121.

Background: Point (a) comes from the Commission’s before proposal for the transition/implementation catamenia clauses, which I annotated here. Compared to the previous draft, the Commission has added a reference to the Charter of Fundamental Rights (an omission which I raised inwards my annotation of the before proposal), added the words “and the international agreements concluded yesteryear the Member US acting on behalf of the Union or Euratom” to betoken (iv), as well as added the whole of betoken (vii). As discussed below, the UK authorities has proposed a dissimilar wording.

Points (b) to (e) are all added.

Comments: The definition of “Union law” inwards Article 2(a) is clarified farther inwards Article 5. It is peculiarly relevant for Article 4(4), which requires that CJEU instance constabulary on Union constabulary before the halt of the transition/implementation catamenia must live applicable.

The definition of “Member States” inwards (b) is straightforward, although Articles 6, 123 as well as 153 so go on to define the UK every bit a Member State for many purposes. Note that the definition is “frozen” yesteryear reference to the electrical current EU27 countries; the UK would thus non live bound to protect the rights of citizens of countries that bring together the European Union inwards time to come (logically enough, since they do non have got European Union constabulary rights to protect at the fourth dimension of the UK’s withdrawal). Conversely, the UK would live bound to hold protecting the rights of citizens of whatever other countries that mightiness leave the EU.

Since the withdrawal understanding does non comprehend the seat of citizens of non-EU countries whose migration status may derive from European Union law, likewise seat unit of measurement members of EU27/UK citizens, their seat depends upon the “rolling over” of whatever such treaties so that they go on to apply to the UK during the transition/implementation period, as well as so separately after that date.

Point (c) confirms the orthodox see that UK citizens lose their European Union citizenship upon Brexit day, since the Treaties province that only nationals of Member US are citizens of the EU. However, it should live noted that this interpretation is being challenged.

Point (d) refers to UK declarations on the exact reach of its citizenship. The CJEU has ruled on this number inwards the Kaur case, accepting the UK’s conclusion to define diverse groups of people every bit non genuinely UK citizens.

As for betoken (e), Article 121 states that the transition/implementation catamenia ends at the halt of 2020. The UK authorities has queried this; but that raises questions close how the catamenia would live extended, whether this would go beyond the legal base of operations of the withdrawal agreement, or how the catamenia mightiness live extended yesteryear a split upwards treaty after Brexit day.

UK position: The UK proposes that this text appears inwards the Withdrawal Agreement department of the agreement, instead of the department on Common Provisions. Substantively, the UK takes a partly dissimilar approach from the Commission, suggesting definitions for “acts”, “Treaties”, “bilateral international agreement” as well as “Union law”. “Acts” are defined yesteryear reference to diverse European Union measures; “Treaties” only includes Treaty amendments before Brexit day; “bilateral international agreement” agency those treaties which the European Union entered into every bit a bloc; it’s clarified that Treaty Annexes, Protocols etc are covered; as well as acts adopted during the transition/implementation catamenia are explicitly covered.

Article 3

Territorial scope

1. Unless otherwise provided inwards this Agreement or inwards Union constabulary made applicable yesteryear this Agreement, whatever reference inwards this Agreement to the UK or its territory, shall live understood every bit referring to:

(a) the United Kingdom;

(b) the Channel Islands, the Isle of Man, Gibraltar as well as the Sovereign Base Areas of Akrotiri as well as Dhekelia inwards Republic of Cyprus to the extent that Union constabulary was applicable to them before the appointment of entry into forcefulness of this Agreement;

(c) the overseas countries as well as territories listed inwards Annex II to the TFEU having special relations with the United Kingdom, where the provisions of this Agreement relate to the special arrangements for the association of the overseas countries as well as territories with the Union.

2. Unless otherwise provided inwards this Agreement or inwards Union constabulary made applicable yesteryear this Agreement, whatever reference inwards this Agreement to Member States, or their territory, shall live understood every bit roofing the territories of the Member US to which the Treaties apply every bit provided inwards Article 355 TFEU.

Comment: Article 355 TFEU refers to the territorial reach of the Treaties. Alongside the UK inwards betoken (1)(a), betoken (1)(b) includes cross-references to accession treaties every bit regards the status of the Channel Islands, Isle of Man, Republic of Cyprus bases as well as Gibraltar. The withdrawal understanding volition have got (if agreed) a split upwards protocol on the Republic of Cyprus bases, but it is non filled inwards yet. The proposal is that they volition live affected yesteryear the withdrawal understanding to the extent they are covered yesteryear European Union constabulary already, which they are inwards share inwards dissimilar ways. For instance, see the recent CJEU judgment inwards Buhagiar, the latest ruling on which European Union constabulary applies inwards Gibraltar.

As for the overseas countries as well as territories inwards (1)(c), the draft understanding mentions them inwards Article 145(3) every bit regards fiscal issues, as well as inwards a footnote to Annex y+2, which concerns customs issues outstanding at the halt of the transition/implementation period. According to Annex II to the European Union Treaties, for the UK those countries as well as territories are: Anguilla; the Cayman Islands; the Falkland Islands; South Georgia as well as the South Sandwich Islands; Montserrat; Pitcairn; Saint Helena as well as dependencies; British Antarctic Territory; British Indian Ocean Territory; Turks as well as Caicos Islands; British Virgin Islands; as well as Bermuda.

Article 4

Methods as well as principles relating to the effect, the implementation as well as the application of this Agreement

1. Where this Agreement provides for the application of Union constabulary inwards the United Kingdom, it shall create inwards abide by of as well as inwards the UK the same legal effects every bit those which it produces within the Union as well as its Member States.

In particular, Union citizens as well as UK nationals shall live able to rely straight on the provisions contained or referred to inwards Part Two. Any provisions inconsistent or incompatible with that Part shall live disapplied.

2. The UK shall ensure compliance with paragraph 1, including every bit regards the required powers of its judicial as well as administrative authorities, through domestic primary legislation.

3. The provisions of this Agreement referring to concepts or provisions of Union constabulary shall live interpreted as well as applied inwards accordance with the same methods as well as full general principles every bit those applicable within the Union.

4. The provisions of this Agreement referring to Union constabulary or concepts or provisions thereof shall inwards their implementation as well as application live interpreted inwards conformity with the relevant instance constabulary of the Court of Justice of the European Union handed downward before the halt of the transition period.

5. In the interpretation as well as application of this Agreement, the United Kingdom's judicial as well as administrative authorities shall have got due regard to relevant instance constabulary of the Court of Justice of the European Union handed downward after the halt of the transition period.

Background: Article 4(1) partly reflects paras 34 as well as 35 of the articulation report, which specified that “Both Parties concord that the Withdrawal Agreement should supply for the legal effects of the citizens' rights Part both inwards the UK as well as inwards the Union” as well as “The provision inwards the Agreement should enable citizens to rely straight on their rights every bit set out inwards the citizens' rights Part of the Agreement as well as should specify that inconsistent or incompatible rules as well as provisions volition live disapplied.”

However, the commencement sub-paragraph goes beyond the articulation report, since it refers to the entire agreement, as well as furthermore refers to the “same legal effect”, which was non expressly stated inwards the articulation report. (Note that Articles 2(a) as well as 5 define “Union law” for the purposes of the Agreement). By comparison, the minute sub-paragraph reflects the articulation written report precisely.

Article 4(2) partly reflects paras 34 as well as 36 of the articulation report, which specified that “UK domestic legislation should also live enacted to this effect” (referring to citizens’ rights) as well as “The UK Government volition take frontwards a Bill, the Withdrawal Agreement & Implementation Bill, specifically to implement the Agreement. This Bill volition brand limited reference to the Agreement as well as volition fully contain the citizens' rights Part into UK law. Once this Bill has been adopted, the provisions of the citizens' rights Part volition have got effect inwards primary legislation as well as volition prevail over inconsistent or incompatible legislation, unless Parliament expressly repeals this Act inwards future.” So the proposal partly reflects what the UK agreed to inwards December, but partly goes beyond it, to the extent that Article 4(1) covers the understanding every bit a whole, non just the citizens’ rights part.

Article 4(3) is a full general provision, supplemented yesteryear the next 2 paras, on the interpretation of the entire understanding inwards conformity with European Union constabulary principles. This does non reverberate whatever prior understanding yesteryear the UK. (Again, banknote that Articles 2(a) as well as 5 define “Union law” for the purposes of the Agreement).

Article 4(4) agency that CJEU instance constabulary upwards until the halt of the transition/implementation catamenia volition live binding. The text is taken from the Commission’s before proposal for text on the transition/implementation period, as well as reflects also para nine of the articulation report. The UK authorities has non objected to it inwards in regulation inwards its reply to the Commission proposals. This proposal needs to live read amongst Article 2(a), which defines “Union law” for the purposes of the agreement; Article 5 clarifies this number further.

Article 4(5) reflects share of para 38 of the articulation report, which states that, every bit regards citizens’ rights, “In the context of the application or interpretation of those rights, UK courts shall thus have got due regard to relevant decisions of the CJEU after the specified date.” However, the Commission’s proposal extends the “due regard” obligation to the entire text of the withdrawal agreement, non just citizens’ rights. It also applies the dominion to UK administrative authorities. There is no clarity every bit to what “relevant instance law” may hateful here. This para is linked to Article 155, which gives the UK rights of intervention inwards CJEU cases, but with narrower reach than the wording of Article 4(5).

Note that Article 12 of the Protocol on Republic of Ireland applies roughly provisions of Article 4 to that Protocol, but has dissimilar rules for others.

Article 5

References to Union law

1. With the exception of Parts Four as well as Five, unless otherwise provided inwards this Agreement all references inwards this Agreement to Union constabulary shall live understood every bit references to Union constabulary every bit applicable on the lastly hateful solar daytime of the transition period, including every bit amended or replaced.

2. Where inwards this Agreement reference is made to Union acts or provisions thereof, such reference shall, where relevant, live understood to include a reference to Union acts or provisions thereof that, although repealed yesteryear the deed referred to, go on to apply inwards accordance with that act.

3. For the purposes of this Agreement, references to provisions of Union constabulary made applicable yesteryear this Agreement shall live understood to include references to the relevant Union acts supplementing or implementing those provisions.

Background: This provision is an amended version of an Article the Commission proposed inwards its proposition for Articles on the transition/implementation period, which read: “Where a provision of Union constabulary is amended, supplemented or replaced during the transition period, the reference to this provision of Union constabulary is to live read every bit referring to the amended, supplemented or successor provision, provided that the alter takes effect before the halt of the transition period.”

Comments: Notice that “take effect” has been replaced yesteryear “as applicable”; but this is silent unclear what this agency yesteryear comparing to the definition of European Union legislative acts inwards Article 288 TFEU. Also the limitation to acts which were amended or replaced inwards the before version has been replaced yesteryear a reference to European Union constabulary to a greater extent than broadly. I raised both these points inwards my comments on the before draft.

The underlying betoken hither is whether the UK has to comply with European Union legal acts whose deadline for implementation falls after the halt of the transition/implementation period. There seems piffling betoken requiring it to do so, but this raises the awkward query of extending that period. I suggest an amendment to read: “…including every bit amended or replaced, to the extent that Member US must implement that Union constabulary yesteryear that date.”

Effectively Article 5 supplements the definition of “Union law” inwards article 2(a), as well as the 2 provisions should live read together. It is also real relevant to the interpretation rules inwards Article 4. The exception inwards Article 5(1) for Parts Four as well as Five of the understanding refers to the transition/implementation catamenia as well as the fiscal settlements rules; the exception “unless otherwise provided inwards this Agreement” refers to changes such every bit the amendments to social safety rules, referred to inwards Part Two on citizens’ rights, as well as the Protocol on Ireland, Article 12(3) of which has a dissimilar dominion than Article 5(1) – although Article 12(1) of the Protocol applies Article 5(2) as well as (3) to that Protocol.

UK authorities position: The UK authorities is peculiarly concerned close existence bound yesteryear European Union legislation adopted during the transition catamenia without its involvement. The government’s approach inwards its proposed definitions clause is simpler as well as clearer. The UK also wants a “good faith” clause to bargain with novel European Union legislation it disagrees with, but has non publicly proposed a text for this.

As regards citizens’ rights, the next provisions of Union constabulary are referred to: Article 2(2), Directive 2004/38 (Articles 8(a) as well as 9(1)(e)); Articles 45 as well as 49 TFEU (Article 8(b)); Article 2(9), Regulation 2201/2003 (Article 8(e)); Articles 12, 13, 16(2), 17 as well as 18, Directive 2004/38 (Article 9(1)(f)); Article 3(2), Directive 2004/38 (Article 9(2) as well as (3)); Article xviii TFEU (Article 11); Articles 21, 45 or 49 TFEU as well as inwards Article 6(1), Article 7(1)(a), (b) or (c), Article 7(3), Article 14, Article 16(1) or Article 17(1) of Directive 2004/38/EC (Article 12(1)); Article 21 TFEU as well as inwards Article 6(1), Article 7(1)(d), Article 12(1) or (3), Article 13(1), Article 14, Article 16(1) or Article 17(3) as well as (4) of Directive 2004/38/EC (Article 12(2)); Articles 4(1) as well as 5 (1), Directive 2004/38/EC (Article 13(1)); Articles 16, 17 as well as 18, Directive 2004/38/EC (Article 14(1)); Articles 16(3) as well as 21, Directive 2004/38/EC (Article 14(2)); Article 7, Directive 2004/38/EC (Article 15); Articles 2(2)(c) or (d), 3(2), 7(1)(a), (b) as well as (c) as well as (2), 8(3), (4) as well as (5), 10(2), 19, xx as well as 27(3), Directive 2004/38/EC (Article 17); Chapter VI as well as Articles 31 as well as 35, Directive 2004/38/EC (Article 18); Article fifteen as well as Chapter VI of Directive 2004/38/EC (Article 19); Article 23 of Directive 2004/38/EC (Article 20); Article 24 of Directive 2004/38/EC (Article 21(1)); Articles 6 as well as 14(4)(b) of Directive 2004/38/EC (Article 21(2)); Article 45 TFEU as well as Regulation 492/2011 (Article 22); Article 49 TFEU (Article 23(1)); Directives 2005/36, 98/5, 2006/43 as well as 74/556 (Articles 25 as well as 26); Regulations 1231/2010 as well as 859/2003 (Article 28); Regulations 883/2004 as well as 987/2009 (Articles 28, 29 as well as 31);

Article 6

References to Member States

For the purposes of this Agreement, all references to Member US as well as competent authorities of Member US inwards provisions of Union constabulary made applicable yesteryear this Agreement shall live read every bit including the UK as well as its competent authorities, except every bit regards:

(a) the nomination, appointment or election of members of the institutions, bodies, offices as well as agencies of the Union, every bit good every bit the participation inwards the decision-making as well as the attendance inwards the meetings of the institutions;

(b) the participation inwards the decision-making as well as governance of the bodies, offices as well as agencies of the Union;

(c) the attendance inwards the meetings of the committees referred to inwards Article 3(2) of Regulation (EU) No 182/2011 of the European Parliament as well as of the Council, of Commission goodness groups or of other similar entities, or inwards the meetings of goodness groups or similar entities of bodies, offices as well as agencies of the Union, unless otherwise provided inwards this Agreement.

Background: This is effectively the same text which the Commission proposed every bit share of its suggested Articles on the transition/implementation period. The UK accepts it inwards principle.

This text reflects the minute judgement of para xiii of the EU27 negotiation directives on the transition/implementation period, which province that “the Union acquis should apply to as well as inwards the UK every bit if it were a Member State”, every bit good every bit the lastly judgement of para xviii as well as the commencement judgement of para nineteen on the exclusions from a UK role inwards the institutions.

Comment: While the definition of “Member States” inwards Article 2(b) excludes the UK, Article 6 so qualifies that significantly yesteryear effectively making the UK a Member State for the purposes of the noun constabulary of the EU, but non the institutional constabulary of the EU, for the purposes of the withdrawal agreement.

Article 123(1) applies Article 6 during the transition/implementation period, every bit a derogation from the dominion inwards Article 122 that European Union constabulary volition silent apply to the UK during that period. Article 123(5) so sets out a derogation from Article 6, giving the UK limited access to decision-making until the halt of that period. There is also a derogation from Article 6 inwards Articles 129(3)(d) as well as 131(3), every bit regards roughly fiscal small town issues; piece Article 12 of the Protocol on Republic of Ireland applies roughly provisions of Article 6 to that Protocol, but has dissimilar rules for others.

While the Treaties only refer to Member US every bit having a total decision-making role within European Union institutions, in that location is cipher to dominion out consultation with non-Member States. Indeed, the Schengen association understanding with Kingdom of Norway as well as Republic of Iceland gives them consultation rights at ministerial level. The notion that the UK is expected to apply novel European Union constabulary (see Article 5) without fifty-fifty existence informally consulted on the relevant proposals thus has a vindictive tinge to it.

Article 7

Access to network as well as information systems as well as information bases

At the halt of the transition period, the UK shall cease to live entitled to access whatever network, whatever information system, as well as whatever database established on the footing of Union law. The UK shall take appropriate measures to ensure that it does non access a network, information system, or database which it is no longer entitled to access.

Comment: This ends the UK’s access to databases as well as information systems – peculiarly relevant to judge as well as habitation affairs issues – at the halt of the transition/implementation period. It would live possible to go on access on the footing of a time to come safety treaty, every bit discussed here.

There are derogations from this Article in: Article 30(2) on social security; Article 49, where “strictly necessary” to comply with the separation provisions on VAT as well as excise taxation inwards Articles 47-49; as well as Article 92(2), winding upwards UK involvement with the European Union greenhouse gas trading system. Implicitly Article vii is non applicable to the Protocol on Ireland, since Article 12 of that Protocol does non apply it.

PART TWO

CITIZENS’ RIGHTS

TITLE I

GENERAL PROVISIONS

Article 8

Definitions

For the purposes of this Part, as well as without prejudice to Title III, the next definitions shall apply:

(a) "family members" agency seat unit of measurement members of Union citizens or UK nationals every bit defined inwards betoken (2) of Article 2 of Directive 2004/38/EC of the European Parliament as well as of the Council, irrespective of their nationality as well as who autumn within the personal reach provided for inwards Article nine of this Agreement;

(b) "frontier workers" agency Union citizens or UK nationals who pursue an economical activity inwards accordance with Article 45 or 49 TFEU inwards i or to a greater extent than US inwards which they do non reside;

(i) in abide by of Union citizens, the UK if they exercised in that location their right of residence inwards accordance with Union constabulary before the halt of the transition catamenia as well as go on to reside in that location thereafter;

(ii) in abide by of UK nationals, the Member State inwards which they exercised their right of residence inwards accordance with Union constabulary before the halt of the transition catamenia as well as go on to reside in that location thereafter;

(d) "State of work" means:

(i) inwards abide by of Union citizens, the United Kingdom, if they pursued an economical activity every bit frontier workers in that location before the halt of the transition catamenia as well as go on to do so thereafter;

(ii) inwards abide by of UK nationals, a Member State where they pursued an economical activity every bit frontier workers before the halt of the transition catamenia as well as go on to do so thereafter;

(e) "rights of custody" agency rights of custody within the pregnant of betoken (9) of Article 2 of Council Regulation (EC) No 2201/2003 as well as shall comprehend rights of custody acquired yesteryear judgment, yesteryear functioning of constabulary or yesteryear an understanding having legal effect.

Background: This reflects para 10 of the joint report. I have got added a hyperlink, inwards seat of a footnote, to the European Union citizens’ Directive as well as the “Brussels II” Regulation on seat unit of measurement constabulary respectively.

Comments: The reference to special rules inwards Ttile III reflects Article 28(2) of the agreement, which includes a derogation from Article 8(a) since European Union social safety constabulary has its ain definition of seat unit of measurement members.

To translate Article 8(a) of the agreement, banknote that Article 2(2) of the citizens’ Directive, referred to here, defines heart as well as soul seat unit of measurement members every bit follows:

(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the footing of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships every bit equivalent to union as well as inwards accordance with the weather condition set downward inwards the relevant legislation of the host Member State;

(c) the direct descendants who are nether the historic catamenia of 21 or are dependants as well as those of the husband or partner every bit defined inwards betoken (b);

(d) the dependent direct relatives inwards the ascending line as well as those of the husband or partner every bit defined inwards betoken (b).

The interpretation of the European Union constabulary definition of “family member” must follow CJEU instance law: see Articles 4 as well as 5. The relevant instance constabulary includes the pending Coman instance on whether same-sex spouses are covered yesteryear the definition of “spouse”, as well as the instance constabulary on the definition of “dependence” (see word of the most recent instance constabulary here).

Two of import issues arise from Article 8(a). First of all, the CJEU lately ruled inwards Lounes (discussed here) that dual citizens of 2 Member US tin sack claim rights inwards i of those Member US if they have got moved betwixt them.

Secondly, inwards a line of instance constabulary starting inwards Zambrano (discussed here), the European Union ruled that where children alive inwards the Member State of their nationality but have got a non-EU parent with caring obligations for the child, the non-EU parent cannot live removed (except on populace safety etc grounds) every bit it would infringe the child’s European Union citizenship rights.

In companionship to go on this instance constabulary inwards force, I suggest an amendment every bit follows:

(a) "family members" agency seat unit of measurement members of Union citizens or UK nationals every bit defined inwards betoken (2) of Article 2 of Directive 2004/38/EC of the European Parliament as well as of the Council, or whose status derives from Articles xx or 21 TFEU…

(Note that a tertiary line of instance constabulary – roofing seat unit of measurement members of EU27 or UK citizens who homecoming to their province of nationality – would live protected yesteryear an amendment to Articles 8(c) as well as nine which I advise below. H5N1 quaternary line of instance constabulary – on the children of workers as well as their carers – is addressed yesteryear Article 22 of the proposed Agreement).

The definitions of “frontier worker” as well as “rights of custody” inwards Article 8(b) as well as (e) are also European Union constabulary concepts, where the CJEU instance constabulary must live applied inwards accordance with Articles 4 as well as 5. As for the latter rule, Article 2(9) of the Brussels IIa Regulation states that “the term "rights of custody" shall include rights as well as duties relating to the attention of the soul of a child, as well as inwards special the right to determine the child's seat of residence.”

Note that these definitions are only applicable to the citizens’ rights rules inwards share Two; other definitions applicable to the entire understanding (including the citizens’ rights Part) appear inwards Article 2. The proviso that the definitions are “without prejudice” to Title III on social safety (Articles 28-31) presumably refers to the derogation from Article 8(a) inwards Article 28(2), which instead applies the dissimilar definition of “family member” inwards European Union constabulary on social safety coordination to social safety issues.

In Article 8(c), the words “and go on to reside in that location thereafter” – non reflected inwards the articulation written report – boundary the reach of the understanding to a unmarried state, so that it does non comprehend EU27 or UK citizens who homecoming to their province of nationality (relevant to the seat of their seat unit of measurement members or recognition of qualifications: on seat unit of measurement members see the Surinder Singh as well as Eind instance law, discussed here), or UK citizens who displace to roughly other fellow member State (see Article 32). This would significantly as well as unjustifiably impede the time to come lives of many people, so I suggest an amendment to delete the words “and go on to reside in that location thereafter” from Article 8(c).

An of import number dividing the EU27 as well as UK is the exact status of those who move during the transition/implementation period. The EU27 proposal would care for them just the same every bit those who were in that location beforehand, but the UK proposal would care for them differently. In the UK’s view, in that location volition silent live costless displace inwards both directions, to live set out inwards the withdrawal understanding (point 4). There volition live a registration scheme inwards the UK, inwards accordance with Article 8 of the citizens’ Directive (point 5: for farther word of that point, see here). This volition non apply to Irish Gaelic citizens, since the understanding volition non apply to them (point 6: this disceptation is false, since Republic of Ireland is listed every bit i of the “Member States” inwards Article 2(b), as well as Irish Gaelic citizens are thus covered yesteryear Article 2(c) every bit European Union citizens). Such persons tin sack remain after the halt of the transition/implementation catamenia as well as silent obtain permanent status inwards future, but volition live dependent acre to the seat unit of measurement reunion rules applicable to UK citizens (point 10: contradicting the proposal for Article 9). It volition live upwards to EU27 Member US to determine what happens to UK citizens who go far during this catamenia (point 11), i time to a greater extent than contradicting the proposal, which would give them a route to permanent residence inwards future.

Article 9

Personal scope

1. Without prejudice to Title III, this Part shall apply to the next persons:

(a) Union citizens who exercised their right to reside inwards the UK inwards accordance with Union constabulary before the halt of the transition catamenia as well as go on to reside in that location thereafter;

(b) United Kingdom nationals who exercised their right to reside inwards a Member State inwards accordance with Union constabulary before the halt of the transition catamenia as well as go on to reside in that location thereafter;

(c) Union citizens who exercised their right every bit frontier workers inwards the UK inwards accordance with Union constabulary before the halt of the transition catamenia as well as go on to do so thereafter;

(d) United Kingdom nationals who exercised their right every bit frontier workers inwards i or to a greater extent than Member US inwards accordance with Union constabulary before the halt of the transition catamenia as well as go on to do so thereafter;

(e) family members of the persons referred to inwards points (a) to (d), where they fulfil i of the next conditions:

(i) they resided inwards the host State inwards accordance with Union constabulary before the halt of the transition catamenia as well as go on to reside in that location thereafter;

(ii) they resided exterior the host State before the halt of the transition period, provided that they fulfil the weather condition set out inwards betoken (2) of Article 2 of Directive 2004/38/EC at the fourth dimension they seek residence nether this Part inwards companionship to bring together the soul referred to inwards points (a) to (d) of this paragraph;*

(iii) they are born to, or legally adopted by, persons referred to inwards points (a) to (d) after the halt of the transition period, whether within or exterior the host State, where they fulfil the weather condition set out inwards betoken (2)(c) of Article 2 of Directive 2004/38/EC at the fourth dimension they seek residence nether this Part inwards companionship to bring together the soul referred to inwards points (a) to (d) of this paragraph as well as fulfil i of the next conditions:

- both parents are persons referred to inwards points (a) to (d);

- i parent is a soul referred to inwards points (a) to (d) as well as the other is a national of the host State; or

- i parent is a soul referred to inwards points (a) to (d) as well as has sole or articulation rights of custody of the child, inwards accordance with the applicable rules of seat unit of measurement constabulary of a Member State or of the United Kingdom, including applicable rules of individual international constabulary nether which rights of custody established nether the constabulary of a tertiary province are recognised inwards the Member State or inwards the United Kingdom, inwards special every bit regards the best interests of the kid as well as without prejudice to the normal functioning of such applicable rules of individual international law;

(f) family members who resided inwards the host State inwards accordance with Articles 12 as well as 13, Article 16(2) as well as Articles 17 as well as xviii of Directive 2004/38/EC before the halt of the transition catamenia as well as go on to reside in that location thereafter.

2. Without prejudice to whatever right to residence which the persons concerned may have got inwards their ain right, the host State shall, inwards accordance with its national legislation, facilitate entry as well as residence for persons falling nether points (a) as well as (b) of Article 3(2) of Directive 2004/38/EC who resided inwards the host State inwards accordance with Union constabulary before the halt of the transition catamenia as well as go on to reside in that location thereafter.

3. Without prejudice to whatever right to residence which the persons concerned may have got inwards their ain right, the host State shall, inwards accordance with its national legislation as well as inwards accordance with betoken (b) of Article 3(2) of Directive 2004/38/EC, facilitate entry as well as residence for the partner with whom the soul referred to inwards points (a) to (d) has a durable relationship, duly attested, provided that the human relationship was durable before the halt of the transition catamenia as well as continues at the fourth dimension the partner seeks residence nether this Part.

4. In the cases referred to inwards paragraphs 2 as well as 3, the host State shall undertake an extensive exam of the personal circumstances as well as shall justify whatever denial of entry or residence to such persons.

Background: This Article reflects paras 12 as well as xiii of the articulation report.

Comment: The reference to Title III every bit a lex specialis tin sack live explained yesteryear the dissimilar personal reach of social safety law, every bit set out inwards Article 28(2) of the agreement.

Article 9(1) reflects, similar Article 8(c), a limitation on the reach of the understanding yesteryear agency of the words “and go on to reside in that location thereafter”. For the reasons discussed already, I suggest an amendment to delete the words “and go on to reside in that location thereafter” from Article 9. While the UK authorities reportedly intends to protect seat unit of measurement members of UK citizens covered yesteryear the Surinder Singh instance constabulary inwards national law, that does non adequately protect their rights, since they volition live dependent acre to the whims of a authorities devoted to a depression internet migration target as well as the creation of a “hostile environment” to that end.

The most controversial number hither is Article 9(1)(e), regarding heart as well as soul seat unit of measurement members. Point (i) covers those already resident before the halt of the transition/implementation catamenia on the footing of European Union law, which every bit broadly defined yesteryear Article 2, covers also European Union immigration as well as asylum law. Point (ii) covers those who resided exterior the host State before that date, who tin sack silent seek entry on the footing of Article 2(2) of the Directive. This contradicts the understanding betwixt the UK as well as the EU27 inwards the articulation agreement, since the Commission seeks to hold the right of seat unit of measurement life intact for all the persons concerned. Point (iii) covers children born to or adopted yesteryear EU27 or UK citizens or their seat unit of measurement members after that date, regardless of where they were born, every bit long every bit they are nether 21 or dependent every bit defined yesteryear European Union law. This includes cases where i parent is an EU27/UK citizen as well as the other is a UK national, as well as where i parent is covered yesteryear the Agreement as well as has sole or articulation rights of custody (which was defined inwards Article 8).

Note also that Article 9(1)(f) protects seat unit of measurement members who were nowadays every bit permanent residents or pursuant to the seat unit of measurement breakdown rules before the halt of transition/implementation period. Moreover, Article 22 covers a grouping of children as well as carers who volition inwards roughly cases autumn exterior the reach of this Article.

Article 9(2), (3) as well as (4) set out rules for extended seat unit of measurement members, every bit defined yesteryear reference to Article 3(2) of the citizens Directive. The persons concerned are: (a) “any other seat unit of measurement members, irrespective of their nationality, non falling nether the definition” inwards Article 2(2) who, “in the terra firma from which they have got come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious wellness grounds strictly require the personal attention of the seat unit of measurement fellow member yesteryear the Union citizen”; as well as (b) “the partner with whom the Union citizen has a durable relationship, duly attested”.

It is sometimes falsely suggested that the listing of extended seat unit of measurement members inwards European Union costless displace constabulary is unlimited, as well as that in that location is an obligation to acknowledge them. Neither claim is true, every bit the obligation to “facilitate entry as well as residence” is non a right of admission every bit such, every bit confirmed yesteryear the CJEU inwards its judgment inwards Rahman. (An Advocate-General’s see inwards the minute instance on Article 3(2), Banger, is due shortly).

In whatever event, the understanding volition curtail the limited rights of extended seat unit of measurement members significantly. Article 9(2) only continues the “facilitation” obligation if the seat unit of measurement members concerned “resided inwards the host State inwards accordance with Union constabulary before the halt of the transition catamenia as well as go on to reside in that location thereafter”. (Note that “Union law”, every bit defined broadly inwards Article 2 of the agreement, could include European Union constabulary on immigration or asylum for non-EU citizens). Article 9(3) allows slightly to a greater extent than protection for duly attested partners, but the facilitation obligation for them silent applies only where “the human relationship was durable before the halt of the transition catamenia as well as continues at the fourth dimension the partner seeks residence nether this Part.” If the twosome concerned chooses to get hitched with (if that selection is possible) so they would autumn within the reach of Article 9(1).

Article 10

Continuity of residence

Continuity of residence for the purposes of Articles 8 as well as nine shall non live affected yesteryear absences every bit referred to inwards Article 14(2) as well as (3).

Background: This Article partly does non specifically reverberate whatever para of the articulation report.

Comment: This applies the commons rules on continuity of residence, which are normally applied to acquisition of permanent residence every bit inwards Article fourteen of the agreement, to whatever issues of continuity of residence which may arise from Articles 8 or 9.

Article 11

Non-discrimination

Within the reach of this Agreement as well as without prejudice to whatever special provisions contained therein, whatever discrimination on grounds of nationality within the pregnant of the commencement subparagraph of Article xviii TFEU shall live prohibited inwards the host State as well as the State of piece of work inwards abide by of the persons referred to inwards Article nine of this Agreement.

Background: This Article partly reflects para 31 of the articulation report.

Comment: This Article copies the wording of Article xviii TFEU, commencement subparagraph, as well as refers to it also, so the relevant CJEU instance constabulary volition apply. Note that other non-discrimination clauses appear inwards Articles 21 as well as 22 of this agreement.

TITLE II

RIGHTS AND OBLIGATIONS

CHAPTER 1

Rights related to residence, residence documents

Article 12

Residence rights

1. Union citizens as well as UK nationals shall have got the right to reside inwards the host State nether the limitations as well as weather condition every bit set out inwards Articles 21, 45 or 49 TFEU as well as inwards Article 6(1), Article 7(1)(a), (b) or (c), Article 7(3), Article 14, Article 16(1) or Article 17(1) of Directive 2004/38/EC.

2. Family members who are either Union citizens or UK nationals shall have got the right to reside inwards the host State every bit set out inwards Article 21 TFEU as well as inwards Article 6(1), Article 7(1)(d), Article 12(1) or (3), Article 13(1), Article 14, Article 16(1) or Article 17(3) as well as (4) of Directive 2004/38/EC.

3. Family members who are neither Union citizens nor UK nationals shall have got the right to reside inwards the host State every bit set out inwards Article 6(2), Article 7(2), Article 12(2) or (3), Article 13(2), Article 14, Article 16(2), Article 17(3) or (4) or Article xviii of Directive 2004/38/EC.

4. The host State may non impose whatever limitations as well as weather condition other than those provided for inwards this Title on the persons referred to inwards paragraphs 1, 2 as well as 3 for obtaining, retaining or losing residence rights. There shall live no discretion inwards applying the limitations as well as conditions, other than inwards favour of the soul concerned.

Background: This reflects paras xx as well as 21 of the articulation report.

Comments: This Article sets out the heart as well as soul right to remain on the territory for EU27/UK citizens as well as their seat unit of measurement members. It is non absolute, since it is dependent acre to the physical care for of confirming status after Brexit (Article 17) as well as removal inwards the trial of criminality (Article 18); as well as the persons concerned must encounter the weather condition for residence inwards the commencement place. These weather condition are generous, but non unlimited; inwards special in that location is no right to remain exclusively on the footing of receiving social benefits from the outset.

More precisely, Article 12(1) refers to the European Union constabulary rules on citizenship as well as costless displace (Article 21 TFEU), costless displace of workers (Article 45 TFEU), costless displace of self-employed people (Article 49 TFEU), initial stays (Article 6(1), citizens’ Directive), stays after 3 months (Article 7(1)(a) to (c), citizens’ Directive), stays every bit a onetime worker (Article 7(3)); stays looking for piece of work (Article 14, citizens’ Directive), as well as permanent residence (Article 16(1) or Article 17(1), citizens’ Directive). On onetime workers, banknote that the European Union constabulary applies to those who take a intermission for maternity, fifty-fifty if they switch employers at that fourth dimension nether sure weather condition (see word here); it also covers the self-employed (see the Pusa judgment), but non those who go unemployed shortly after arriving as well as run out of fourth dimension to uncovering replacement piece of work (see word here). While non-economic migrants involve “sufficient resources” to stay, the instance constabulary makes clear that this tin sack live provided yesteryear others, for instance a husband or partner.

Article 12(2) of the understanding sets out the corresponding rules for seat unit of measurement members who are European Union or UK citizens, piece Article 12(3) of the understanding sets out the corresponding rules for seat unit of measurement members who are not European Union or UK citizens. Note that Articles 12 as well as Article xiii of the citizens’ Directive, referred to here, concern stays after seat unit of measurement breakdown, piece Article xviii grants permanent residence rights to those who stayed on the footing of those provisions. (On the most recent CJEU judgment on the seat unit of measurement breakdown rules, see the word here).

All these references to European Union constabulary are dependent acre to the interpretation rules inwards Articles 4 as well as 5. Article 12(4) removes whatever province discretion over “obtaining, maintaining or losing residence rights” likewise the possibilities set out inwards this Title (Articles 12-27 of the Agreement, non all of which bargain with residence rights).

Article 13

Right of leave of absence as well as of entry

1. Union citizens, UK nationals, as well as their respective seat unit of measurement members, shall have got the right to leave of absence the host State as well as the right to go inwards it with a valid passport or national identity menu for Union citizens as well as UK nationals, as well as a valid passport for their respective seat unit of measurement members who are non Union citizens or UK nationals every bit set out inwards Articles 4(1) as well as 5(1) of Directive 2004/38/EC. No leave of absence or entry visa or equivalent formality shall live required for holders of a valid residence document issued inwards accordance with Article 17 or 24 of this Agreement.

2. Where the host State requires seat unit of measurement members who bring together the Union citizen or the UK national after the halt of the transition catamenia to have got an entry visa, the host State shall grant such persons every facility to obtain the necessary visas. Such visas shall live issued costless of accuse every bit presently every bit possible as well as on the footing of an accelerated procedure.

Background: There is no parallel provision inwards the articulation report.

Comments: The commencement judgement of Article 13(1) matches – as well as cross-refers to – Article 4(1) as well as the commencement sub-paragraph of 5(1) of the citizens’ Directive. However, the minute judgement of Article 13(1) is non the same every bit Article 4(2) or the minute sub-paragraph of Article 5(1) of that Directive, since it limits the exemption from an entry visa or similar document only for those who handgrip a novel residence document on the footing of Article 17 (the “settled status” clause) or Article 24 (document for frontier workers) of the agreement.

Article 13(2) tin sack live compared to Article 5(2) of the Directive, which also provides for exemption of the visa requirement if the soul has a residence card, as well as covers short-term visits (see the 2014 McCarthy judgment, discussed here).

There is no equivalent to Article 4(3) as well as (4) of the Directive, concerning the number of passports or identity cards to nationals. Nor is in that location whatever equivalent to: Article 5(3), banning entry or leave of absence stamps inwards passports of those non-EU seat unit of measurement members belongings a residence card; Article 5(4), giving people the chance to obtain move documents or visas; or Article 5(5), an selection to require reporting presence, which tin sack live made dependent acre to proportionate as well as non-discriminatory sanctions.

Article 14

Right of permanent residence

1. Union citizens, UK nationals, as well as their respective seat unit of measurement members, who have got resided legally inwards accordance with Union constabulary for a continuous catamenia of v years inwards the host State, or for the duration specified inwards Article 17 of Directive 2004/38/EC, shall have got the right of permanent residence inwards the host State every bit set out inwards Articles 16, 17 as well as xviii of Directive 2004/38/EC. Periods of legal residence or piece of work before as well as after the halt of the transition catamenia shall live included inwards the calculation of the qualifying catamenia necessary for acquisition of the right of permanent residence.

2. Continuity of residence for the purposes of acquisition of the right of permanent residence shall live determined inwards accordance with Article 16(3) as well as Article 21 of Directive 2004/38/EC.

3. Once acquired, the right of permanent residence shall live lost only through absence from the host State for a catamenia exceeding v consecutive years.

Background: This Article reflects paras 21 as well as 25 of the articulation report.

Comment: Article 14(1) incorporates the principal dominion on acquiring permanent residence inwards Article sixteen of the citizens’ Directive, every bit good every bit the subsidiary rules inwards Articles 17 as well as xviii of that law. The minute judgement confirms that times of job both before as well as after the halt of the transition/implementation catamenia volition count.

An of import betoken hither is that Article 14(1) refers to fourth dimension nowadays on the footing of EU law, every bit defined broadly yesteryear Article 2(a), non only to fourth dimension spent on the footing of the Directive. This is broader than the instance constabulary of the ECJ, which says that only fourth dimension spent on the footing of the Directive counts (see the Alarape as well as Tijani judgment). (There are other forms of legal remain nether European Union law: see Article 22 of this agreement, for instance. And “EU law” could also, for non-EU seat unit of measurement members, refer to residence on the footing of European Union immigration or asylum constabulary applicable to non-EU citizens). However, Article fifteen of this Agreement, confusingly, refers only to fourth dimension spent on the footing of the Directive, reflecting the wording of the instance constabulary again.

Note that Article 16(1) of the Directive goes on to say that: “This right shall non live dependent acre to the weather condition provided for inwards Chapter III”, ie the rules on the initial five-year stay. This is implicitIy incorporated into Article 14(1) of the understanding yesteryear the cross-reference to Article 16. Indeed the cross-reference to European Union constabulary incorporates all the relevant instance law, except arguably the Alarape as well as Tijani instance due to the dissimilar wording.

The cross-reference inwards Article 14(1) of the understanding also includes Article 16(2) of the Directive, which grants permanent residence to non-EU seat unit of measurement members who “have legally resided with the Union citizen inwards the host Member State for a continuous catamenia of v years”; Article 17 of the Directive, which grants permanent residence after a shorter catamenia inwards the trial of retirement, decease or accident at work; as well as Article xviii of the Directive, which gives permanent residence to non-EU seat unit of measurement members inwards the trial of seat unit of measurement breakdown referred to inwards Articles 12 as well as xiii of the Directive (see Article 12 of this agreement).

Article 14(2) of the agreement, concerning continuity of residence, incorporates Article 16(3) of the Directive, which provides:

Continuity of residence shall non live affected yesteryear temporary absences non exceeding a total of half dozen months a year, or yesteryear absences of a longer duration for compulsory military machine service, or yesteryear i absence of a maximum of twelve consecutive months for of import reasons such every bit pregnancy as well as childbirth, serious illness, study or vocational training, or a posting inwards roughly other Member State or a tertiary country.

It also incorporates Article 21 of the Directive, which provides:

…continuity of residence may live attested yesteryear whatever agency of proof inwards job inwards the host Member State. Continuity of residence is broken yesteryear whatever expulsion conclusion duly enforced against the soul concerned.

Article 14(3) of the agreement, on loss of the status, is identical to Article 16(4) of the citizens’ Directive, except that the relevant catamenia is v years, non 2 every bit inwards the Directive. Nevertheless, the persons concerned silent have got lesser protection overall, since nether the Directive they could ever exercise costless displace rights from scratch if they met the criteria inwards Article vii of the Directive. Post-Brexit they cannot.

Article 15

Accumulation of periods

Union citizens, UK nationals, as well as their respective seat unit of measurement members, who before the halt of the transition catamenia resided legally inwards the host State nether the weather condition of Article vii of Directive 2004/38/EC for a catamenia of less than v years, shall have got the right to learn the right of permanent residence set out inwards Article fourteen of this Agreement i time they have got completed the necessary periods of residence. Periods of legal residence or piece of work before as well as after the halt of the transition catamenia shall live included inwards the calculation of the qualifying catamenia necessary for acquisition of the right of permanent residence.

Background: This Article reflects para 21 of the articulation report.

Comment: It is difficult to see how to distinguish this Article from Article 14(1) of this agreement, which it differs from only yesteryear referring explicitly to residence on the footing of the citizens’ Directive, rather than European Union constabulary to a greater extent than generally. While Article fifteen only covers those who do non yet qualify for permanent residence at the halt of the transition/implementation period, Article 14(1) must comprehend them too, since it also refers to periods of residence after that date.

Article 16

Status as well as changes

1. The right of Union citizens, UK nationals, as well as their respective seat unit of measurement members to rely straight on this Title shall non live affected when they alter status, for illustration from educatee to worker, from worker to existence economically inactive, or from existence economically inactive to student.

2. The rights provided for inwards this Title for the seat unit of measurement members, who are dependent on Union citizens or UK nationals before the halt of the transition period, shall live maintained fifty-fifty after they cease to live dependent every bit a final result of taking upwards job or self-employment inwards the host State.

Background: This Article reflects para xx of the articulation report.

Comment: The right of European Union citizens or their seat unit of measurement members to alter the footing of their remain (provided that they silent comply with the criteria for residence nether European Union law) is non explicitly referred to inwards the citizens’ Directive, but has ever been protected inwards exercise nether the CJEU instance law.

Article 17

Issuance of residence documents

1. The host State may require Union citizens or UK nationals as well as their respective seat unit of measurement members, residing inwards its territory inwards accordance with the weather condition set out inwards this Title, to apply for a novel residence document every bit a status for the enjoyment of the rights nether this Title, dependent acre to the next conditions:

Background: this is the “settled status” clause. It reflects para sixteen of the articulation report. Note that it would live optional for the UK or EU27 Member State to apply it. Obviously the UK at to the lowest degree intends to do so.

Comment: Note that holding the document every bit a status enjoying rights diverges from Article 25 of the citizens’ directive, which states that belongings forms cannot live a precondition for having whatever shape of status nether the Directive. The pledges of “no less favourable status” as well as “automatic indefinite leave of absence to remain” for EU27 citizens inwards the UK have got thus been breached.

(a) the purpose of the application physical care for shall live to verify whether the applicant falls within the personal reach provided for inwards Article nine as well as is entitled to the residence rights set out inwards this Title. Where that is the case, the applicant shall have got a right to live granted the residence document;

Comment: There is no overall discretion to spend upwards the document if the applicant tin sack show their entitlement to status, every bit Article 12(4) states.

(b) the deadline for submitting the residence document application shall non live less than 2 years from the halt of the transition catamenia or from the appointment of arrival inwards the host State, whichever is later; a certificate of application for the residence document shall live issued immediately;

Comment: This resembles Article 8(2) of the citizens’ Directive, which has a three-month minimum deadline. It goes on to province that the certificate of application must province “the shout out as well as address of the soul registering as well as the appointment of the registration” as well as that “[f]ailure to comply with the registration requirement may homecoming the soul concerned liable to proportionate as well as non-discriminatory sanctions”.

(c) the deadline for submitting the residence document application referred to inwards betoken (b) shall live extended automatically yesteryear i twelvemonth where the Union or the UK has notified the UK or the Union, respectively, that technical problems forestall the host State either from registering the application or from issuing the certificate of application referred to inwards betoken (b). The host State shall issue that notification as well as shall supply appropriate populace information for the citizens or nationals concerned inwards goodness time;

Comment: This is novel compared to the citizens’ Directive. H5N1 one-year extension may show to live useful inwards practice.

(d) where the deadline for submitting the residence document application referred to inwards betoken (b) is non respected yesteryear the persons concerned, the competent authorities shall assess all the circumstances as well as reasons for non respecting the deadline as well as allow those persons to submit an application within a reasonable farther catamenia of time, unless such an application is patently abusive;

Comment: The “try again” clause is novel compared to the citizens’ Directive. It could live useful inwards exercise but is non clearly drafted every bit a right of the soul concerned. Presumably betoken (r) grants a right of redress inwards the trial of refusal here.

(e) the host State shall ensure that administrative procedures for applications for the residence document are smooth, transparent as well as elementary as well as that whatever unnecessary administrative burdens are avoided;

(f) application forms shall live short, simple, user friendly as well as adjusted to the context of this Agreement; applications made yesteryear families at the same fourth dimension shall live considered together;

(g) the residence document shall live issued costless of accuse or for a accuse non exceeding that imposed on citizens or nationals for the issuing of similar documents;

Comment: The terms clause resembles Article 25(2) of the citizens’ Directive. Note the exemption inwards (h) however.

(h) persons who, before the halt of the transition period, are holders of a valid permanent residence document issued nether Article nineteen or xx of Directive 2004/38/EC or a valid domestic immigration document conferring a permanent right to reside inwards the host State, shall have got the right to central that document within 2 years of the halt of the transition catamenia for a novel residence document after a verification of their identity, a criminality as well as safety banking concern check inwards accordance with betoken (p) of this paragraph as well as confirmation of ongoing residence; such a document shall live costless of charge;

Comment: Those who already handgrip documentation of permanent residence are required to apply again. There is an exemption from costs as well as in that location are limited grounds to refuse; but this remains an unjustifiable imposition as well as also an extra terms for the UK. I suggest an amendment every bit follows (two alternatives; the commencement is preferable):

(i) the identity of the applicants shall live verified through the presentation of a valid passport or national identity menu for Union citizens as well as UK nationals, as well as a valid passport for their respective seat unit of measurement members who are non Union citizens or UK nationals; the credence of such identity documents shall non live made conditional upon whatever criteria other than that of validity. Where the identity document is retained yesteryear the competent authorities of the host State piece the application is pending, the host State shall homecoming that document upon application without delay as well as before the conclusion on the application is taken;

Comment: this partly reflects the wording of Article 8(3) of the citizens Directive. Note the requirement to homecoming passports or identity cards.

(j) supporting documents other than identity documents, such every bit civil status documents, may live submitted inwards copy;

(k) the host State may only require Union citizens as well as UK nationals to present, inwards improver to the identity documents referred to inwards betoken (i) of this paragraph, the next supporting documents every bit referred to inwards Article 8(3) of Directive 2004/38/EC:

(i) where they reside inwards the host State inwards accordance with Article 7(1)(a) of Directive 2004/38/EC every bit workers or self-employed, a confirmation of engagement from the employer or a certificate of employment, or proof that they are self-employed;

(ii) where they reside inwards the host State inwards accordance with Article 7(1)(b) of Directive 2004/38/EC every bit economically inactive persons, evidence that they have got sufficient resources for themselves as well as their seat unit of measurement members non to go a burden on the social assistance scheme of the host State during their catamenia of residence as well as have got comprehensive sickness insurance comprehend inwards the host State;

(iii) where they reside inwards the host State inwards accordance with Article 7(1)(c) of Directive 2004/38/EC every bit students, proof of enrolment at an accredited establishment as well as of comprehensive sickness insurance comprehend as well as a annunciation or equivalent, that they have got sufficient resources for themselves as well as their seat unit of measurement members non to go a burden on the social assistance scheme of the host State during their catamenia of residence. The host State may non require this annunciation to refer to whatever specific amount of resources.

With regard to the status of sufficient resources, Article 8(4) of Directive 2004/38/EC shall apply;

Comment: This copies – as well as cross-refers to – the criteria as well as physical care for inwards the citizens’ Directive. The underlying job hither is the UK’s insistence that NHS comprehend does non count every bit “comprehensive sickness insurance”. While the UK has promised to waive this requirement, this is inwards regulation non an enforceable right as well as in that location is a take a chance that the Agreement could live interpreted every bit pregnant that the persons concerned are non covered yesteryear it at all.

Suggested amendment: “…of comprehensive sickness insurance cover, which shall live satisfied for European Union citizens inwards the UK yesteryear proof of registration with the National Health Service…”

(l) the host State may only require seat unit of measurement members who autumn nether Articles 9(1)(e)(i) or 9(2) of this Agreement as well as who reside inwards the host State inwards accordance with Article 7(1)(d) or 7(2) of Directive 2004/38/EC to present, inwards improver to the identity documents referred to inwards betoken (i) of this paragraph, the next supporting documents every bit referred to inwards Articles 8(5) or 10(2) of Directive 2004/38/EC:

(i) a document attesting to the existence of a seat unit of measurement human relationship or of a registered partnership;

(ii) the registration certificate or, inwards the absence of a registration system, whatever other proof of residence inwards the host State of the Union citizen or of the UK nationals with whom they reside inwards the host State;

(iii) for direct descendants who are nether the historic catamenia of 21 or are dependants as well as dependent direct relatives inwards the ascending line, as well as for those of the husband or registered partner, documentary evidence that the weather condition set out inwards Article 2(2)(c) or (d) of Directive 2004/38/EC are fulfilled;

(iv) for the persons referred to inwards Article 9(2) of this Agreement, a document issued yesteryear the relevant authorization inwards the host State inwards accordance with Article 3(2) of Directive 2004/38/EC.

With regard to the status of sufficient resources every bit concerns seat unit of measurement members who are themselves Union citizens or UK nationals, Article 8(4) of Directive 2004/38/EC shall apply;

Comment: This copies – as well as cross-refers to – the criteria as well as physical care for inwards the citizens’ Directive.

(m) the host State may only require seat unit of measurement members who autumn nether Articles 9(1)(e)(ii) or 9(3) of this Agreement, inwards improver to the identity documents referred to inwards betoken (i) of this paragraph, the next supporting documents every bit referred to inwards Articles 8(5) as well as 10(2) of Directive 2004/38/EC:

(i) a document attesting to the existence of a seat unit of measurement human relationship or of a registered partnership;

(iii) for spouses or registered partners, a document attesting to the existence of a seat unit of measurement human relationship or of a registered partnership before the halt of the transition period;

(iv) for direct descendants who are nether the historic catamenia of 21 or are dependants as well as dependent direct relatives inwards the ascending line as well as those of the husband or registered partner, documentary evidence that they were related to Union citizens or UK nationals before the halt of the transition catamenia as well as fulfil the weather condition set out inwards Article 2(2)(c) or (d) of Directive 2004/38/EC relating to historic catamenia or dependence;

(v) for the persons referred to inwards Article 9(3) of this Agreement, proof that a durable human relationship with Union citizens or UK nationals existed before the halt of the transition catamenia as well as continues to be thereafter;

Comment: This copies – as well as cross-refers to – the criteria as well as physical care for inwards the citizens’ Directive.

(n) for cases other than those set out inwards points (k), (l) as well as (m), the host State shall non require applicants to nowadays supporting documents that go beyond what is strictly necessary as well as proportionate to supply evidence that the weather condition relating to the right of residence nether this Title have got been fulfilled;

Comment: This presumably refers to those covered yesteryear Article 22 – children of workers as well as their carers.

(o) the competent authorities of the host State shall assist the applicants show their eligibility as well as avoid whatever errors or omissions inwards the application; they shall give the applicants the chance to furnish supplementary evidence as well as to right whatever deficiencies, errors or omission;

Comment: This would live a useful procedural protection inwards practice.

(p) criminality as well as safety checks may live carried out systematically on applicants with the exclusive aim of verifying whether restrictions set out inwards Article xviii of this Agreement may live applicable. For that purpose, applicants may live required to declare yesteryear criminal convictions which appear inwards their criminal tape inwards accordance with the constabulary of the State of conviction at the fourth dimension of the application. The host State may, should it consider this essential, apply the physical care for set out inwards Article 27(3) of Directive 2004/38/EC on enquiries to other US regarding previous criminal records;

Comment: This diverges from Article 27(3) of the citizens’ Directive, which states that such checks volition non live made “as a affair of routine”.

(q) the novel residence document shall include a disceptation that it has been issued inwards accordance with this Agreement;

(r) the applicant shall have got access to judicial and, where appropriate, administrative redress procedures inwards the host State against whatever conclusion refusing to grant the residence document. The redress procedures shall allow for an exam of the legality of the decision, every bit good every bit of the facts as well as circumstances on which the proposed conclusion is based. They shall ensure that the conclusion is proportionate.

Comment: the minute judgement reflects Article 31(3) of the citizens’ Directive, although in that location is no cross-reference to it, as well as the reference to the high threshold for expulsion inwards Article 28 of that Directive has been dropped.

2. During the two-year catamenia referred to inwards betoken (b) of paragraph 1 of this Article as well as its possible one-year extension nether betoken (c) of paragraph 1 of this Article, all rights provided for inwards this Part shall live deemed to apply to Union citizens or UK nationals as well as their respective seat unit of measurement members, residing inwards the host State inwards accordance with the weather condition set out inwards this Title.

Comment: H5N1 useful ban on the Home Office “jumping the gun”.

3. Pending a lastly conclusion yesteryear the competent authorities on whatever application referred to inwards paragraph 1, every bit good every bit a lastly judgment handed downward inwards instance of judicial redress sought against whatever rejection of such application yesteryear the competent administrative authorities, all rights provided for inwards this Part shall live deemed to apply to the applicant, including Article nineteen on safeguards as well as right of appeal.

4. Where a host State has chosen non to require Union citizens or UK nationals, as well as their respective seat unit of measurement members, to apply for the novel residence document referred to inwards paragraph 1 every bit a status for legal residence, those Union citizens, UK nationals as well as their respective seat unit of measurement members eligible for residence rights shall have got the right to have a residence document that includes a disceptation that it has been issued inwards accordance with this Agreement.

Article 18

Restrictions of the right of residence

1. Conduct of Union citizens or UK nationals or their respective seat unit of measurement members, that occurred before the halt of the transition catamenia shall live considered inwards accordance with Chapter VI of Directive 2004/38/EC.

2. Conduct of Union citizens or UK nationals, or their respective seat unit of measurement members, that occurred after the halt of the transition catamenia may constitute grounds for restricting the right of residence yesteryear the host State inwards accordance with national legislation.

3. The host State may adopt the necessary measures to refuse, terminate or withdraw whatever right conferred yesteryear this Title inwards the instance of abuse of those rights or fraud every bit set out inwards Article 35 of Directive 2004/38/EC. Such measures shall live dependent acre to the procedural safeguards provided for inwards Article nineteen of this Agreement.

4. The host State may take applicants who submitted fraudulent or abusive applications from its territory nether the weather condition set out inwards Directive 2004/38/EC, inwards special Articles 31 as well as 35 thereof, fifty-fifty before a lastly judgment has been handed downward inwards instance of judicial redress sought against whatever rejection of such an application.

Background: This Article broadly reflects the minute judgement of para xviii of the articulation report, every bit good every bit paras 26 as well as 27.

Comment: Due to the cross-reference, the instance constabulary on these provisions of the citizens’ Directive volition apply. Chapter VI of that constabulary contains noun rules limiting expulsion on grounds of populace policy, populace safety as well as populace health, peculiarly inwards Articles 27-29; in that location is substantial instance constabulary on these rules as well as on the predecessor law. It volition live necessary to works life when behaviour took seat before the halt of the transition/implementation catamenia (Article 18(1)) as well as when it took seat afterward, so national constabulary applies (Article 18(2)).

As for Article 18(3), the instance constabulary on Article 35 of the Directive interprets that dominion narrowly (see Metock as well as the 2014 McCarthy judgment, discussed here). The reference to procedural protection inwards such cases is so undermined yesteryear Article 18(4), which refers to expulsion before a lastly judgment, referring to Article 31 of the Directive. But Article 31 only allows removal from the territory, if the soul concerned has applied for an interim order, inwards a limited number of cases: an expulsion conclusion based on a prior judicial decision; if in that location was prior access to judicial review; or where the expulsion is based on “imperative grounds of populace security” every bit defined inwards the Directive. None of these cases correspond to Article 35 of the Directive.

Possibly the drafting intends to confirm that a soul who is existence excluded on the footing of Article 35 tin sack have got fewer procedural rights only where that soul also falls within the reach of the exclusions inwards Article 31. I suggest an amendment to Article 18(4) to brand that to a greater extent than clear: “The host State may take applicants who submitted fraudulent or abusive applications from its territory to the extent permitted by Directive 2004/38/EC, inwards special Articles 31 as well as 35 thereof…”

Article 19

Safeguards as well as right of appeal

The safeguards set out inwards Article fifteen as well as Chapter VI of Directive 2004/38/EC shall apply inwards abide by of whatever conclusion of the host State that restricts residence rights of the persons referred to inwards Article nine of this Agreement.

Background: This broadly reflects the commencement judgement of para 31 of the articulation report.

Comment: Due to the cross-reference, the instance constabulary on these provisions of the citizens’ Directive volition apply. Chapter VI of that constabulary contains rules on notification of decisions (Article 30), remain on the territory (Article 31), entry bans (Article 32) as well as reconsideration of decisions (Article 33). There is a seeming contradiction with the apparent boundary on procedural rights set out inwards Article 18(4) of this agreement.

Article 15(1) of that Directive extends Articles xxx as well as 31 also to cases where restrictions on costless displace are applied non on grounds of populace policy, populace safety or populace health, ie cases where the soul mightiness human face upwards expulsion due to existence reliant upon benefits. Article 15(3) rules out applying an entry ban inwards such cases, as well as Article 15(2) states that “[e]xpiry of the identity menu or passport on the footing of which the soul concerned entered the host Member State as well as was issued with a registration certificate or residence menu shall non constitute a Earth for expulsion from the host Member State”.

Article 20

Related rights

In accordance with Article 23 of Directive 2004/38/EC, irrespective of nationality, the seat unit of measurement members of a Union citizen or a UK national who have got the right of residence or the right of permanent residence inwards the host State or the State of piece of work shall live entitled to take upwards job or self-employment there.

Background: This does non reverberate whatever specific para inwards the articulation written report explicitly.

Comment: This clause essentially copies Article 23 of the citizens’ Directive. Due to the cross-reference, the instance constabulary on that Article volition apply. This volition live an of import provision inwards exercise for families where a non-EU citizen husband or partner earns the sole or higher income.

Article 21

Equal treatment

1. In accordance with Article 24 of Directive 2004/38/EC, dependent acre to the specific provisions provided for inwards Titles I, II as well as IV of this Part, all Union citizens or UK nationals residing on the footing of this Agreement inwards the territory of the host State shall savour equal handling with the nationals of that State within the reach of this Agreement. The do goodness of this right shall live extended to seat unit of measurement members of Union citizens or of UK nationals as well as who have got the right of residence or permanent residence.

2. By way of derogation from paragraph 1, the host State shall non live obliged to confer entitlement to social assistance during residence inwards accordance with Articles 6 or 14(4)(b) of Directive 2004/38/EC, nor shall it live obliged, prior to acquisition of the right of permanent residence inwards accordance with Article fourteen of this Agreement, to grant maintenance assistance for studies, including vocational training, consisting inwards educatee grants or educatee loans to persons other than workers, self-employed persons, persons who retain such status as well as members of their families.

Background: This reflects share of para 31 of the articulation report, which refers to securing equal handling within the limits of the citizens’ Directive. There are specific rules on equal handling of workers, which are set out inwards Article 22 of the agreement.

Comment: The reference to European Union constabulary agency that the instance constabulary on Articles 6, 14(4)(b) as well as 24 of the citizens’ Directive volition apply (see word of that instance constabulary here). Para 1 is real similar to Article 24(1) of the Directive, which is referred to straight anyway, except that it refers to the “specific provisions of” as well as “scope of” this agreement, rather than of the TFEU.

The limits on access to benefits inwards para 2 are substantively identical to those inwards Article 24(2) of the citizens Directive: no social assistance during the commencement 3 months of residence or for an initial job-seeker, as well as no educatee benefits for non-economic migrants until they accomplish permanent residence.

CHAPTER 2

Rights of workers as well as self-employed persons

Article 22

Rights of workers

1. Workers inwards the host State as well as frontier workers inwards the State or US of piece of work shall savour the next rights:

(a) dependent acre to the limitations set out inwards Article 45(3) as well as 45(4) TFEU:

(i) the right, inwards accordance with Article 45(2) TFEU, non to live discriminated against on grounds of nationality every bit regards employment, remuneration as well as other weather condition of piece of work as well as employment;

(ii) the rights referred to inwards Article 45(3) TFEU;

(b) the rights set out inwards Regulation (EU) No 492/2011 of the European Parliament as well as of the Council, including:

(i) the right to take upwards as well as pursue an activity inwards accordance with the rules applicable to the nationals of the host State or the State of work;

(ii) the right to assistance afforded yesteryear the job offices of the host State or the State of piece of work every bit offered to ain nationals;

(iii) the right to equal handling inwards abide by of weather condition of job as well as work, inwards special every bit regards remuneration, dismissal as well as inwards instance of unemployment, reinstatement or re-employment;

(iv) the right to taxation as well as social advantages;

(v) collective rights;

(vi) the rights as well as benefits accorded to national workers inwards matters of housing;

(vii) the right for their children to live admitted to the full general educational, apprenticeship as well as vocational grooming courses nether the same weather condition every bit the nationals of the host State or the State of work.

2. Where a direct descendant of a worker who has ceased to reside inwards the host State is inwards teaching inwards that State, the primary carer for that descendant shall have got the right to reside inwards that State until the descendant reaches the historic catamenia of majority, as well as after the historic catamenia of bulk if that descendant continues to involve the presence as well as attention of the primary carer inwards companionship to pursue as well as consummate his or her education.

3. Employed frontier workers shall retain the rights they enjoyed every bit workers inwards the State or US of work, as well as the right to go inwards as well as leave of absence that State inwards accordance with Article 13.

Background: This Article elaborates upon para 31 of the articulation report, which said (among other things) that equal handling would live guaranteed for workers on the footing of Regulation 492/2011.

Comments: Article 22 is a précis of the specific rights of costless displace of workers inwards European Union law, every bit set out inwards Article 45 TFEU as well as Regulation 492/2011, which replaced the previous Regulation 1612/68. Article 4 of the understanding thus requires relevant CJEU instance constabulary to apply, or for the UK courts to have got due regard to it. Note that the CJEU instance constabulary has confirmed that the concept of “worker” has a broad scope, applying for instance to part-time workers as well as trainees, every bit long every bit they are doing “genuine as well as effective” work.

On Article 22(1)(a): Article 45(3) TFEU limits costless displace of workers on grounds of populace policy, populace safety as well as populace health, although the instance constabulary on the relevant parts of the citizens’ Directive (and its predecessor legislation) referred to inwards Article nineteen of this agreement, as well as the instance constabulary interpreting it, are also relevant. Article 45(4) TFEU limits costless displace of workers yesteryear providing that “The provisions of this article shall non apply to job inwards the populace service”. CJEU instance constabulary interprets this exception narrowly.

Article 22(1)(a)(i) only restates Article 45(2) TFEU, which has been the dependent acre of CJEU instance law. The reference to Article 45(3) TFEU inwards Article 22(1)(a)(ii) entails a reference to: “accept offers of job genuinely made”; “move freely within the territory of Member US for this purpose”; “stay inwards a Member State for the purpose of job inwards accordance with the provisions governing the job of nationals of that State set downward yesteryear law, regulation or administrative action”; as well as “to remain inwards the territory of a Member State after having been employed inwards that State”. The rules on the lastly of those issues at nowadays appear inwards Article 17 of the citizens’ Directive, as well as are incorporated inwards other provisions of this agreement.

Article 22(1)(b) effectively refers inwards plow to Regulation 492/2011: Article 1(1) (point Article 22(1)(b)(i)); Article 5 (point Article 22(1)(b)(ii)); Article 7(1) (point Article 22(1)(b)(iii)); Article 7(2) (point Article 22(1)(b)(iv)); Article 8 (point Article 22(1)(b)(v)); Article nine (point Article 22(1)(b)(vi)); as well as Article 10 (point Article 22(1)(b)(vii)). But this is a non-exhaustive listing (“the rights set out inwards Regulation 492/2011, including…”), so the residue of the Regulation is covered too.

Article 22(2) reflects the instance constabulary on Article 10 of Regulation 492/2011 as well as its predecessor, Article 12 of Regulation 1612/68, which gave residence rights to children inwards teaching as well as their carers every bit a corollary of access to education. The residence right of the child of a worker (or onetime worker) is protected yesteryear Article 22(1)(b)(vii), since it must live interpreted inwards accordance with prior CJEU instance constabulary (according to Article 4(4) of the agreement). See most lately the Alarape as well as Tijani case, discussed higher upwards every bit regards Article 14.

Article 22(3) does non reverberate whatever specific provision of the citizens’ Directive or Regulation 492/2011.

Article 23

Rights of self-employed persons

1. Self-employed persons inwards the host State as well as self-employed frontier workers inwards the State or US of piece of work shall have got the next rights:

(a) the right to take upwards as well as pursue activities every bit self-employed persons as well as to fix as well as deal undertakings nether the weather condition set downward yesteryear the host State for its ain nationals, every bit set out inwards Article 49 TFEU;

(b) the rights every bit set out inwards Article 22 of this Agreement.

2. Self-employed frontier workers shall have got the same rights every bit employed frontier workers, without prejudice to Article 32 concerning the reach of rights.

Background: The equal handling right inwards para 1(b) reflects share of para 31 of the articulation report.

Comment: The wording of para 1(a) reflects the text of Article 49 TFEU, on the rights of self-employed persons. The extension of the provision on workers’ equality inwards Article 22 to self-employed persons (see para 1(b)) is significant, since Regulation 492/2011 does non apply every bit such to self-employed workers; rather their equal handling rights are based on the Treaties. Para 2 does non reverberate whatever specific legislative rule, but it should live noted that it reaffirms the boundary on UK citizens exercising costless displace rights inwards other Member States, set out inwards Article 32.

Article 24

Issuance of a document identifying frontier workers' rights

Union citizens as well as UK nationals who have got rights every bit frontier workers nether this Title shall have got the right, inwards the State of work, to have a document certifying that they have got such rights nether this Agreement.

Background: This does non reverberate whatever specific provision inwards the articulation report.

Comment: This does non reverberate whatever specific provision of the citizens’ Directive or Regulation 492/2011.

CHAPTER 3

Professional qualifications

Article 25

Recognised professional person qualifications

1. The recognition, before the halt of the transition period, of professional person qualifications, every bit defined inwards betoken (b) of Article 3(1) of Directive 2005/36/EC of the European Parliament as well as of the Council, of Union citizens or UK nationals yesteryear their host State or their State of piece of work shall maintain its effects inwards the respective State, including the right to pursue the profession nether the same weather condition every bit its nationals, where such recognition was made inwards accordance with whatever of the next provisions:

(a) Title III of Directive 2005/36/EC inwards abide by of the recognition of professional person qualifications inwards the context of the exercise of the liberty of establishment, whether such recognition vicious nether the full general scheme for the recognition of evidence of training, the scheme for the recognition of professional person sense or the scheme for the recognition on the footing of coordination of minimum grooming conditions;

(b) Article 10(1) as well as (3) of Directive 98/5/EC of the European Parliament as well as of the Council inwards abide by of gaining admission to the profession of lawyer inwards the host Member State;

(c) Article fourteen of Directive 2006/43/EC of the European Parliament as well as of the Council inwards abide by of the blessing of statutory auditors from roughly other Member State;

(d) Council Directive 74/556/EEC inwards abide by of the credence of evidence of the knowledge as well as powerfulness necessary inwards companionship to take upwards or pursue activities of self-employed persons as well as of intermediaries engaging inwards the merchandise as well as distribution of toxic products or activities involving the professional person job of toxic products.

2. Recognitions of professional person qualifications inwards accordance with Title III of Directive 2005/36/EC referred to inwards betoken (a) of paragraph 1 of this Article shall include:

(a) recognition of professional person qualifications which have got benefited from Article 3(3) of that Directive;

(b) decisions granting partial access to a professional person activity inwards accordance with Article 4f of that Directive;

(c) recognitions of professional person qualifications for establishment purposes made nether Article 4d of that Directive.

Background: This reflects the commencement judgement of para 32 of the articulation report. Directive 74/556 has been added. Article 25(2) is a clarification that is non expressly set out inwards the articulation report. I have got replaced the footnotes with hyperlinks to the legislation.

Comments: This clause ‘grandfathers’ recognition of professional person qualifications awarded before the halt of the transition/implementation period, but does non comprehend recognition of UK qualifications for EU27 citizens who displace after the halt of that catamenia to the Member State of nationality, or roughly other Member State. Equally it would non comprehend recognition inwards the UK of an EU27 qualification after Brexit day, fifty-fifty if the qualification was obtained beforehand. As such this wording acts every bit a variety of retroactive obstruction to the prior exercise of costless movement. See comments on Articles 8 as well as nine above, with suggested amendments there. The references to European Union legislation hateful that articles 4 as well as 5 of this understanding apply to interpretation.

It should live noted, however, that the European Union draft guidelines on the time to come human relationship refer to possible negotiation on recognition of qualifications, which would comprehend the gaps just identified – if such negotiations are comprehensive as well as successful.

Article 26

Ongoing procedures on the recognition of professional person qualifications

Title III of Directive 2005/36/EC, Article 10(1) as well as (3) of Directive 98/5/EC, Article fourteen of Directive 2006/43/EC as well as Directive 74/556/EEC shall apply inwards abide by of the exam yesteryear a competent authorization of their host State or State of piece of work of whatever application for the recognition of professional person qualifications introduced before the halt of the transition catamenia yesteryear Union citizens or UK nationals as well as inwards abide by of the conclusion on whatever such application.

Background: This reflects the minute judgement of para 32 of the articulation report. Directive 75/442 has been added. I have got replaced the footnotes with hyperlinks to the legislation.

Comments: This clause ‘grandfathers’ recognition of professional person qualifications which were non awarded before the halt of the transition/implementation period, but where an application was made for recognition before that date. Like Article 25, this Article does non comprehend subsequent recognition inwards another State of a prior qualification applied for before the halt of that period, although this number mightiness live addressed yesteryear a “future relationship” treaty.

Article 27

Administrative cooperation on recognition of professional person qualifications

With regard to the pending applications referred to inwards Article 26, the UK as well as the Member US shall cooperate inwards companionship to facilitate the application of Article 26. Cooperation may include the central of information, including on disciplinary activity or criminal sanctions taken or whatever other serious as well as specific circumstances which are probable to have got consequences for the pursuit of the activities falling nether the Directives referred to inwards Article 26.

Background: This does non reverberate whatever specific para inwards the articulation report. It resembles share of Article 56 of Directive 2005/36, but without whatever cross-reference to that provision (hence Articles 4 as well as 5 of this Agreement do non apply) or roughly of the extra special inwards that Article.

Comments: This clause could address concern sometimes expressed inwards the UK close occasional cases inwards which EU27 professionals have got faced roughly sort of prior professional person sanction as well as so should arguably non have got their professional person qualification recognised. Note that the clause only applies to qualification applications pending at the halt of the transition/implementation catamenia (Article 26), non those qualifications recognised beforehand (Article 25).

Title III

Coordination of social safety systems

Article 28

Persons covered

1. This Title shall apply to the next persons:

(a) Union citizens who are or have got been dependent acre to the legislation of the United Kingdom, every bit good every bit their seat unit of measurement members as well as their survivors;

(b) UK nationals who are or have got been dependent acre to the legislation of a Member State, every bit good every bit their seat unit of measurement members as well as their survivors;

(c) Union citizens who resided inwards the UK before the halt of the transition catamenia as well as go on to do so thereafter, as well as are dependent acre to the legislation of a Member State, every bit good every bit their seat unit of measurement members as well as their survivors;

(d) UK nationals who resided inwards a Member State before the halt of the transition catamenia as well as go on to do so thereafter, as well as are dependent acre to the legislation of the United Kingdom, every bit good every bit their seat unit of measurement members as well as their survivors;

(e) Union citizens as well as UK nationals who pursued an activity every bit employed or self-employed soul both inwards the UK as well as inwards i or to a greater extent than Member US before the halt of the transition catamenia as well as go on to do so thereafter, every bit good every bit their seat unit of measurement members as well as their survivors;

(f) stateless persons as well as refugees, residing inwards a Member State or inwards the United Kingdom, who are or have got been dependent acre to the legislation of the UK or a Member State, respectively, every bit good every bit their seat unit of measurement members as well as their survivors;

(g) nationals of tertiary countries who are non Union citizens or UK nationals, every bit good every bit members of their families as well as their survivors, provided that they fulfil the weather condition of Regulation (EU) No 1231/2010 of the European Parliament as well as of the Council or Council Regulation (EC) No 859/2003.

2. By way of derogation from betoken (a) of Article 8 of this Agreement, for the purposes of this Title, "family member" agency fellow member of the seat unit of measurement every bit defined inwards betoken (i) of Article 1 of Regulation (EC) No 883/2004 of the European Parliament as well as of the Council.

3. For the purposes of this Title, "legislation" agency legislation every bit defined inwards betoken (l) of Article 1 of Regulation (EC) No 883/2004.

4. Union citizens or UK nationals, every bit good every bit nationals of tertiary countries referred to inwards betoken (g) of paragraph 1, having worked or resided inwards a Member State or inwards the UK before the halt of the transition catamenia shall, for the purposes of aggregation of periods of social security insurance, including rights flowing from such periods, inwards accordance with Regulation (EC) No 883/2004 as well as Regulation (EC) No 987/2009 of the European Parliament as well as of the Council, live covered yesteryear this Title.

Background: This Article is based on the minute as well as tertiary sentences of para 28 of the articulation report, although that para only referred to UK or European Union citizens.

Comments: Regulation 883/2004 is the principal European Union constabulary text on social safety coordination for those who exercise costless displace rights. It’s the latest version of legislation going dorsum to 1958, when the EEC was commencement founded. Note that para 1(a) as well as (b) do non require that the soul concerned silent remains inwards the relevant EU27 Member State or the UK; this is an implied derogation from Article nine of the Agreement. Regulation 987/2009 sets out detailed rules to implement Regulation 883/2004.

The inclusion of stateless persons as well as refugees inwards para 1(f) follows Regulation 883/2004 (and prior European Union legislation on this issue), although banknote that the CJEU ruled inwards Khalil as well as Addou that similar European Union citizens, they only derive rights from the rules if they have got moved betwixt Member States.

Para 1(g) refers to split upwards legislation extending the European Union coordination rules to other non-EU citizens who moved within the EU. The UK opted into the 2003 legislation, but non the 2010 legislation; so presumably the reference to the 2010 legislation covers non-EU citizens who derived rights from it inwards other Member US (every other Member State except Kingdom of Denmark is covered yesteryear both of the 2 laws).

There are European Union treaties with non-EU countries setting out rules on social safety coordination or equal treatment; they volition apply every bit regards the UK during the transition/implementation catamenia dependent acre to the special rules inwards the Agreement on that period. After that betoken their continued application volition depend upon whether the UK has “rolled over” the relevant treaty with the terra firma concerned.

It is non clear if the wording captures those within the reach of Article 2(2) of Regulation 883/2004: survivors of non-EU citizens, where the survivors are European Union citizens or refugees or stateless persons. To clarify this I suggest an amendment to add together an Article 28(1)(fa) every bit follows: the survivors of persons who have got been dependent acre to the legislation of i or to a greater extent than Member States, irrespective of the nationality of such persons, where their survivors are nationals of a Member State or the UK or stateless persons or refugees residing inwards i of the Member US or the United Kingdom.

The cross-references to European Union constabulary inwards Paras 1(g) as well as (2) to (4) hateful that Articles 4 as well as 5 apply to the interpretation of these rules.

Article 29

Social safety coordination rules

1. For the purposes of ensuring the rights referred to inwards Articles 21, 45 as well as 49 TFEU, the rights as well as principles set out inwards Article 48 TFEU, Regulation (EC) No 883/2004 as well as Regulation (EC) No 987/2009, every bit good every bit the Decisions as well as Recommendations of the Administrative Commission for the Coordination of Social Security Systems attached to the European Commission, fix nether Regulation (EC) No 883/2004 ("Administrative Commission") listed inwards [Part I of the Annex y+5 to] this Agreement, shall apply to the matters covered yesteryear those Regulations every bit set out inwards Article 3 of Regulation (EC) No 883/2004, notably the branches of social safety referred to therein, including inwards abide by of:

(a) the full general principles of social safety coordination, as well as inwards special equal treatment, assimilation of facts as well as benefits, aggregation of periods, export of benefits as well as the prevention of overlapping benefits set out inwards Articles 4 to 10 of Regulation (EC) No 883/2004;

(b) the determination of the applicable legislation based on Title II of Regulation (EC) No 883/2004;

2. Contributions both before as well as after the halt of the transition catamenia shall live taken into concern human relationship for the purposes of aggregation of periods of social safety insurance, including rights flowing from such periods, inwards accordance with Regulation (EC) No 883/2004 as well as shall live covered yesteryear this Title.

3. Where a soul referred to inwards Article 28 of this Agreement has undertaken a course of study of planned wellness attention handling before the halt of the transition catamenia inwards a Member State or inwards the United Kingdom, piece that State was non the competent State every bit determined inwards accordance with Title II of Regulation (EC) No 883/2004, that soul shall have got the right to go on the handling until its end.

4. If, next the grant of a do goodness based on the periods of insurance, employment, self job or residence inwards accordance with Article 28(3) of this Agreement, the UK becomes competent for the healthcare comprehend of a Union citizen, or a Union Member State becomes competent for the wellness attention comprehend of a UK national, that Union citizen or UK national shall live entitled to healthcare comprehend every bit set out inwards Articles 24 to xxx of Regulation (EC) No 883/2004 as well as the corresponding reimbursement procedures shall apply betwixt the UK as well as the Member State.

Background: The text of paras 1 as well as 2 reflects the commencement judgement of para 28 of the articulation report: “Social safety coordination rules set out inwards Regulations (EC) No 883/2004 as well as (EC) No 987/2009 volition apply.” The text of paras 3 as well as 4 reflects para 29 of the articulation report; these provisions were discussed inwards special yesteryear Professor Tammy Hervey (who also proposed amendments).

Comments: The cross-references to European Union constabulary inwards every para hateful that Articles 4 as well as 5 of the understanding apply to the interpretation of these rules. There is a technical query every bit to whether the wording covers uprating of pensions, which is an number because the UK oftentimes does non uprate pensions for its citizens (or non-citizens who qualify for a UK pension) living abroad. That’s because the European Union Regulation uses dissimilar wording for “pensions” as well as “old-age benefits”; pensions are dependent acre to uprating (Article 2(w)) but are non listed every bit i of the branches of social safety inwards Article 3 of the Regulation (“old-age benefits” are). To avoid whatever doubt, I suggest an amendment on this number to para 1, which should read: “notably the branches of social safety referred to therein and pensions every bit defined inwards Article 1(w) of that Regulation…”

Note that the temporal reach of para 2 covers contributions made after the halt of the transitional period; so the understanding covers non only pensioners but those who would go eligible for a pension (or roughly other type of social safety benefit) inwards the future, every bit long every bit they are inwards whatever trial covered yesteryear the personal reach of this Title every bit set out inwards Article 28.

Article 30

Administrative cooperation

1. By way of derogation from Articles 6 as well as 123(1), as well as every bit of the appointment of entry into forcefulness of this Agreement, the UK shall have got the status of observer inwards the Administrative Commission. It may, where the items on the agenda concern the United Kingdom, shipping a representative, to live nowadays inwards an advisory capacity, to the meetings of the Administrative Commission as well as to the meetings of the Technical Commission for information processing as well as of the Audit Board, both attached to the Administrative Commission where such items are discussed.

2. By way of derogation from Article 7, the UK shall take share inwards the Electronic Exchange of Social Security Information (EESSI) as well as behaviour the related costs.

Comment: Articles 6 as well as vii were annotated above. Note that, every bit confirmed yesteryear Article 168, this provision applies from Brexit day, rather than the halt of the transition/implementation period.

Article 31

Development of constabulary as well as adaptations of Union acts

1. Where Regulations (EC) No 883/2004 as well as (EC) No 987/2009 are referred to inwards this Agreement as well as where those Regulations are amended or replaced after the halt of the transition period, the reference to those Regulations shall live read every bit referring to them every bit amended or replaced, inwards accordance with the acts listed inwards [Part II of the Annex] to this Agreement.

The Joint Committee shall revise [Part II of the Annex] to this Agreement as well as align it to whatever deed amending or replacing Regulations (EC) No 883/2004 as well as (EC) No 987/2009 every bit presently every bit such an deed is adopted yesteryear the Union. To that end, the Union shall, every bit presently every bit possible after adoption, inform the UK within the Joint Committee of whatever deed amending or replacing those Regulations.

2. Regulations (EC) No 883/2004 as well as (EC) No 987/2009 shall, for the purposes of this Agreement, live understood every bit comprising the adaptations listed inwards [Part III of the Annex] to this Agreement. The UK shall, every bit presently every bit possible after adoption, inform the Union of whatever changes inwards domestic provisions of relevance to [Part III of the Annex] to this Agreement within the Joint Committee.

Provided that Regulations (EC) No 883/2004 as well as (EC) No 987/2009 are respected, the Joint Committee shall revise [Part III of the Annex] on a proposal from the Union or the United Kingdom.

3. The Joint Committee shall amend [Part I of the Annex] to reverberate whatever novel Decision or Recommendation adopted yesteryear the Administrative Commission. To that end, the Union shall, every bit presently every bit possible after adoption, inform the UK thereof within the Joint Committee.

The Decisions as well as Recommendations of the Administrative Commission shall, for the purposes of this Agreement, live understood every bit comprising the adaptations set out inwards [Part I of the Annex]. Such adaptations shall, provided that Regulations (EC) No 883/2004 as well as (EC) No 987/2009 every bit good every bit the relevant Decisions or Recommendations adopted yesteryear the Administrative Commission are respected, live made yesteryear the Joint Committee on a proposal of the Union or the United Kingdom.

Background: this Article reflects para xxx of the articulation report, which reads:

For rights as well as obligations set out inwards Regulations (EC) No 883/2004 as well as (EC) No 987/2009 on the coordination of social safety systems, a machinery volition live established to create upwards one's heed jointly on the incorporation of time to come amendments to those Regulations inwards the Withdrawal Agreement;

Comments: The Joint Committee is established yesteryear Article 157, discussed below. The measures concerned may inwards exercise live filtered through the specialised sub-committee on citizens’ rights, referred to inwards Article 158. Joint Committee decisions are binding as well as have got the same legal effect every bit the principal Agreement, every bit set out inwards Article 159. This is the only expanse where the Joint Committee has decision-making powers every bit regards citizens’ rights.

The obligation for the Joint Committee to fit amendments to European Union constabulary does non correspond to the wording of the articulation report, which refers to deciding jointly on this issue. Nor does it give the UK consultation rights when the proposal is existence discussed. I suggest thus an amendment, which would read:

The Joint Committee shall endeavour to revise [Part II of the Annex] to this Agreement as well as align it to whatever deed amending or replacing Regulations (EC) No 883/2004 as well as (EC) No 987/2009 every bit presently every bit such an deed is adopted yesteryear the Union. To that end, the Union shall, every bit presently every bit possible ~~after adoption~~, inform the UK within the Joint Committee of whatever proposed or adopted deed amending or replacing those Regulations. The UK may asking consultations on a proposed deed within the Joint Committee.

TITLE IV

OTHER PROVISIONS

Article 32

Scope of rights

In abide by of UK nationals as well as their seat unit of measurement members, the rights provided for yesteryear this Part shall non include farther costless displace to the territory of roughly other Member State, the right of establishment inwards the territory of roughly other Member State, or the right to supply services on the territory of roughly other Member State or to persons established inwards other Member States.

Comment: This text fails to enshrine the acquired rights to costless displace for UK citizens inwards the EU27 states. Since it profoundly violates the regulation of ensuring acquired rights every bit much every bit possible, it should live redrafted from scratch.

Suggested amendment: United Kingdom nationals as well as their seat unit of measurement members covered yesteryear this Part shall retain their rights to costless displace to the territory of roughly other Member State, including the right of establishment inwards the territory of roughly other Member State, andr the right to supply services on the territory of roughly other Member State or to persons established inwards other Member States. The European Union shall adopt legislation to set out the modalities of exercising this right yesteryear the halt of the [transition] [implementation] period.

Article 33

Publicity

The Member US as well as the UK shall disseminate information concerning the rights as well as obligations of persons covered yesteryear this Part, inwards special yesteryear agency of awareness-raising campaigns conducted, every bit appropriate, through national as well as local media as well as other agency of communication.

Background: There is no corresponding provision inwards the articulation report.

Comment: This text is identical to Article 34 of the citizens’ Directive, adapted to the specific circumstances of this Agreement. The reference to the media is sadly ironic inwards low-cal of shrieking as well as misleading reporting close EU27 citizens oftentimes found inwards roughly UK newspapers.

Article 34

More favourable provisions

1. This Part shall non behaviour on whatever laws, regulations or administrative provisions applicable inwards a host State or a State of piece of work which would live to a greater extent than favourable to the persons concerned. This paragraph shall non apply to Title III.

2. Article xi as well as Article 21(1) shall live without prejudice to the Common Travel Area arrangements betwixt the UK as well as Republic of Ireland every bit regards to a greater extent than favourable handling which may final result from these arrangements for the persons concerned.

Background: Para 1 reflects para 22 of the articulation report, which reads: “The UK as well as EU27 Member US tin sack apply to a greater extent than favourable national provisions inwards accordance with Article 37 of” the citizens’ Directive. Para 2 does non reverberate the citizens’ rights provisions of the articulation report, but the mutual move expanse is referred to inwards the Irish Gaelic border department of the written report (para 54). The CTA is non referred to inwards the citizens’ Directive, but it is referred to inwards a Protocol attached to the Treaties as well as inwards the Irish Gaelic border Protocol attached to the withdrawal agreement.

Comment: Para 1 is effectively identical to Article 37 of the citizens’ Directive, but does non refer to it expressly. Therefore Articles 4 as well as 5 of this Agreement on interpretation volition non apply. There is an of import noun number here: inwards Ziolkowski, the CJEU said that to a greater extent than favourable rules applied yesteryear Member US were non incorporated into the scheme fix yesteryear the citizens’ Directive. That raises the query of whether the UK’s discretion to waive the comprehensive sickness insurance requirement (see word on Article 17), or or bargain with Surinder Singh cases (see word on Article 8) volition take the persons concerned within the reach of the rights inwards the Withdrawal Agreement, or whether their seat volition remain exclusively based on national law. In the absence of a cross-reference to European Union law, that volition non necessarily live the right interpretation of this clause, but it is a risk. For that ground the proposed amendments to Articles 8, nine as well as 17 should live adopted.

Note that para 1 does non apply to Title III, which deals with social safety (Articles 28-31). This reflects the reference to the citizens’ Directive only inwards the articulation report.

Article 35

Life-long protection

The persons covered yesteryear this Part shall savour the rights provided for therein for their lifetime, unless they cease to encounter the weather condition set out therein.

Background: This is based on para 12 of the articulation report, which refers to seat unit of measurement reunion for the life fourth dimension of the right holder. The reach of this Article is, however, wider than that.

Article 35A

Data protection

Regulation 2016/979 shall fully apply to the processing of personal information based upon this Part.

Comment: This novel clause is necessary inwards companionship to ensure total protection of EU27 citizens’ information protection rights inwards the UK, which appear to live jeopardised yesteryear a Bill before the UK Parliament. There would live reciprocal protection for UK citizens inwards the EU27.

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