Citizens’ Rights After Brexit: The Withdrawal Agreement and the Future Mobility Framework

Friedemann Kainer and René Repasi (eds), Trade Relations after Brexit (Nomos and Hart Publishing 2019)

30 Pages Posted: 9 Oct 2018 Last revised: 19 Aug 2019

See all articles by Menelaos Markakis

Menelaos Markakis

Erasmus University Rotterdam (EUR) - Erasmus School of Law

Date Written: May 18, 2019

Abstract

This chapter looks at the impact of Brexit on EU citizenship rights and free movement of persons. In doing so, it primarily focuses on three documents: the Joint Report from the negotiators of the EU and the UK Government on progress during the first phase of the negotiations (‘Joint Report’); the draft Withdrawal Agreement (WA or ‘Agreement’); and the political declaration setting out the framework for the future relationship between the EU and the UK (‘political declaration’). First, the Joint Report, which was published on 8 December 2017, sets out joint commitments which ‘shall be reflected in the Withdrawal Agreement in full detail’. However, ‘[t]his does not prejudge any adaptations that might be appropriate in case transitional arrangements were to be agreed in the second phase of the negotiations, and is without prejudice to discussions on the framework of the future relationship.’ Second, the draft WA is based on Treaty on European Union (TEU) Article 50. It sets out the arrangements for the withdrawal of the UK from the EU and from the European Atomic Energy Community (EURATOM). It is important to distinguish between two different texts. The draft WA published by the European Commission on 19 March 2018 translated into legal prose the Joint Report and proposed text for those outstanding withdrawal issues which were mentioned, but were not set out in detail, in the Joint Report. The EU and the UK recently reached agreement at negotiators’ level on the draft WA, which inevitably differs in some respects from the earlier draft. Third, the WA is accompanied by a political declaration setting out the framework for the future relationship between the EU and the UK. At the time of writing, the UK Prime Minister has not yet secured the requisite parliamentary majority in favour of her deal.

The twin challenge in this chapter is to assess the impact of those documents on the livelihoods of UK and EU nationals affected by Brexit; and to highlight the legal question marks that may hang over the rights granted to the persons affected. Generally, there are three models or ideal types for the evolution of EU citizenship law and free movement rights after Brexit. Under the first model, the rights of EU citizens living or working in the UK, and those of UK nationals in the EU 27, would remain identical to those they had before Brexit. This would be tantamount to ‘freezing’ those rights at the time of Brexit, and preserving them for the lifetime of their holders. Under the second model, their rights would increase in range and/or strength, pursuant to an agreement (or network of agreements) between the EU 27 and the UK. The WA could also lay down, if it followed this model, more lenient requirements than hitherto for acquiring or preserving the rights enshrined therein. Under the third model, their rights would decrease or otherwise deteriorate in range and/or strength. Such rights could also be subject, under this model, to additional conditions or formalities, or to more stringent requirements, as was the case hitherto.

As will be shown in this chapter, the regulatory technique used in the Joint Report and the draft WA is that the rights of EU and UK nationals resident in one another’s territory would build on existing primary and secondary Union law (notably, the Citizens’ Rights Directive 2004/38/EC), albeit with some adaptations. Such adaptations give rise to a messy legal reality that evades neat classification in light of the models set out above. It will be shown that, for the largest part, the Joint Report and the draft WA seek to preserve those rights that UK and EU nationals currently enjoy (as per model one). However, this is only true for those that would be resident in one another’s territory before the cut-off date. What is more, in some important cases, the draft WA would serve, if concluded, to decrease the rights that EU and UK nationals currently enjoy (as per model three). This is subject to the argument put forward later in this chapter that such rights could be complemented by the provisions of the agreement(s) to be concluded between the EU 27 and the UK on their future relationship (such as a deep and comprehensive Free Trade Agreement), and/or ‘topped up’ through more favourable domestic provisions. To make things yet more complicated, there are further (limited) cases, where the Joint Report and the draft WA set out more lenient conditions for preserving the rights granted to the persons concerned (as per model two).

The chapter is structured as follows. The discussion begins with the Joint Report on progress during the first phase of the negotiations. The Joint Report provides a neat summary of the key issues with respect to citizens’ rights and will set the scene for the discussion to follow. The focus then shifts to the draft WA, as was most recently finalised (the November 2018 draft). The chapter examines four sets of issues with respect to both these documents: their legal effects and methods of interpretation; their personal scope with respect to citizens’ rights; administrative procedures for application for status; and the substantive provisions on citizens’ rights. Reference to existing UK or EU legislation concerning citizens’ rights (broadly conceived) is also made where appropriate. The penultimate section looks at the future mobility framework, which for the time being is mostly a matter for speculation. The chapter concludes with some preliminary reflections on the Joint Report and the draft WA, thereby highlighting the various issues that may arise therefrom.

Keywords: Brexit, Citizens' Rights, Free Movement, Immigration, Joint Report, Withdrawal Agreement, Political Declaration

Suggested Citation

Markakis, Menelaos, Citizens’ Rights After Brexit: The Withdrawal Agreement and the Future Mobility Framework (May 18, 2019). Friedemann Kainer and René Repasi (eds), Trade Relations after Brexit (Nomos and Hart Publishing 2019), Available at SSRN: https://ssrn.com/abstract=3260542

Menelaos Markakis (Contact Author)

Erasmus University Rotterdam (EUR) - Erasmus School of Law ( email )

3000 DR Rotterdam
Netherlands

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