Brexit Joint Report on Phase 1 negotiations published today

December 8, 2017 UK


Brexit Joint Report on Phase 1 negotiations published today

The negotiators for the EU 27 and UK Government have today published a joint report on Phase 1 of Brexit negotiations. The report sets out details intended for inclusion in…

The negotiators for the EU 27 and UK Government have today published a joint report on Phase 1 of Brexit negotiations. The report sets out details intended for inclusion in the final Withdrawal Agreement, should such detail be agreed by the European Council and subject to ‘adaptations’ built-in during any transitional phase. This article focuses on the matter of the protection of residence rights of both UK and EU nationals following Brexit.

The report declares that agreement has been reached by the negotiators for “reciprocal protection for Union and UK citizens, to enable the effective exercise of rights derived from Union law and based on past life choices, where those citizens have exercised free movement rights by the specified date”.

In it, the report establishes the following:

  • setting of the UK’s withdrawal date from the EU – anticipated to be 29 March 2019 – as the ‘specified date
  • citizens’ rights will be subject to EU law concepts built into the Withdrawal Agreement, to be interpreted in line with the case law of the Court of Justice of the European Union (CJEU) by the specified date
  • EU citizens lawfully resident in the UK before the specified date will fall within the scope of the Withdrawal Agreement
  • specific prohibition of discrimination on grounds of nationality
  • that the following family members not residing in the UK (as will also be the case for family members of UK nationals lawfully resident in the EU) before the specified date will also be afforded the right to join the right holder after the specified date during the entirety of the right holder’s life:
    • those family members who currently qualify under EU law can demonstrate the relevant relationship to the right holder on the specified date and who continue to remain as such
    • children born/legally adopted to parents both protected under the Withdrawal Agreement or where one parent is protected and the other is a national of the host state
    • children born/legally adopted to a sole parent with protection under the Withdrawal Agreement with sole/joint custody of the child under applicable family law under EU or UK law without prejudging the normal operation of that law, with regards to the best interests of the child in question
    • the entry and residence of durable partners of right holders who are not lawfully resident in the host state on the specified date but who can demonstrate the existence of a durable relationship at the specified date, and continues, shall be facilitated in accordance with national legislation.
  • any family members not covered above shall after the specified date be subject to national law
  • that the UK and EU 27 can require an application to be made by affected individuals conferring the rights of residence by way of the issue of residence documentation, whilst allowing such rights to be attested by ‘other means of proof than a residence document’
  • that status will only be obtained if successfully applied for, with an exception being during a two year transitional period as a new scheme is implemented and they continue to benefit from the rights established in the Withdrawal Agreement (until decided upon or final judicial judgement) or, if an application is not forthcoming during this two year transitional period, a ‘proportionate approach’ will be adopted where the late applicant where there is a ‘good reason’ for this.
  • on the matter of implementing a new process (previously described by the UK Government as a “registration process”):
    • transparent, smooth and streamlined” is how the report describes all new administrative procedures for status applications, that “cannot require anything more than is strictly necessary and proportionate to determine whether the criteria have been met
    • an indication that the evidence required of individuals lawfully resident in the host state prior to the specified date will be similar to that currently required under EU law, with the conditions for acquiring the right of residence, both temporary and permanent, mirroring current requirements under EU law, but also allowing host countries to apply more favourable provisions
    • that host countries will “avoid any unnecessary administrative burdens
    • a commitment to “short, simple, user friendly” application forms, with the host state being required to help applicants to establish their eligibility, and to apply ‘evidential flexibility’ and favourable discretion where appropriate
    • the ability for family applications to be made and considered at the same time as with the right holder
    • status documentation to be issued free of charge or for a charge not exceeding that imposed on host state nationals for similar documents
    • for those already holding documents confirming a right of permanent residence at the specified date, they shall be able to convert this to a new document free of charge – only identity, criminality, security and ongoing residence checks will be undertaken
    • for those acquiring a permanent right of residence in the host state pursuant to the Withdrawal Agreement, they may be absent from that state for five years without losing their right of residence
    • public policy and security related restrictions relating to conduct before the specified date will be subject to the Withdrawal Agreement, and national law after the specified date

The report is therefore largely consistent with the UK Government’s proposals published earlier this year, however the indication that the specified date is to be the date of Brexit itself introduces something more akin to clarity for both EU nationals in the UK and UK nationals resident elsewhere in Europe.

FSA UK & Brexit immigration update – 8th Dec 2017

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