Citizens’ Rights in the UK-EU Withdrawal Agreement: Ossifying EU citizenship as a juridical status?

By Oliver Garner (EUI), GLOBALCIT collaborator

On Sunday 25th November 2018, the European Council gave its political blessing to the draft of the Withdrawal Agreement whereby the United Kingdom will leave the European Union. From the outset of negotiations, the European Council identified protecting the rights of UK nationals in EU Member States and EU nationals in the United Kingdom as a priority in its guidelines. These efforts have culminated in Part II of the Agreement. This post will provide a brief overview of the substance of these provisions, and the mechanisms that have been established to ensure their enforcement. The piece will conclude with consideration of the features of EU citizenship that the agreement does not protect: the political rights to vote and stand as candidates in municipal and European Parliament elections, and the status of citizenship itself for UK nationals. The Withdrawal Agreement extensively preserves the disparate threads of the legal rights that individuals derive from EU citizenship. The legal interpretation of the provisions offered here asserts that the Agreement ossifies a conception of the status as one of mere juridical objectivity. This operates to the detriment of a conception of EU citizenship as a status that enables political self-determination.

The preamble to the Agreement establishes the purpose of the citizens’ right chapter: to provide reciprocal protection in the situation of the exercise of free movement rights before a date set by Agreement and to ensure that the rights are enforceable and based on the principle of non-discrimination. The temporal starting point for protection is that free movement rights have been exercised before the end of the transition period. However, this is complicated by additional temporal exceptions provided for in the text, in addition to the complexities of the scope of who is protected by the agreement.  The substance of the provisions in Part II of the Withdrawal Agreement have been described by Stijn Smismans as a ‘copy and paste’ of the terms of the relevant secondary legislation. Therefore, this functions as a transplant of the binding application of these norms from the source of the EU legal order to the new source of the international agreement between the UK and the EU. Title II Chapter I implements the provisions of Directive 2004/38 on citizens’ free movement and residence rights; Chapter II transposes Regulation No 492/2011 on the free movement of workers; Chapter III covers Directive 2005/36/EC on the recognition of professional qualifications; and Title III covers Regulation No 883/2004 on the co-ordination of social security systems. A crucial initial point is that the transposition of these terms only preserves the right of residence of UK nationals within their host State. The free movement rights to move between the borders of the EU-27 Member States is not preserved. The only partial rights of movement preserved for UK nationals are for those who fulfil the definition of ‘frontier worker’ in one of more states beyond the host State as defined in Article 9(b). Beyond the substance of these provisions, there are a number of features that specific to the new regime governing these rights.

The definition of ‘host State’ in Article 9(c) establishes the new default temporal grounding for the retention of residence rights. This is their exercise coming before the end of the transition period and continuing residence thereafter. Article 126 establishes that this transition period will continue from the date on the entry into force of the Agreement (30 March 2019) until 31 December 2020. However, uncertainty arises from the provision in Article 132 for the Joint Committee to extend the transition period before 1 July 2020 to an undetermined date defined in draft as ‘[31 December 20XX]’. An important temporal point is that Article 15 confirms that periods of legal residence or work in accordance with Union law both before and after the end of the transition period are included in the calculation of the qualifying period necessary to acquire a right of permanent residence. Article 10(e)(ii) identifies certain categories of individuals who will be protected by the provisions even if they exercise their rights after the end of the transition period. These are direct relations of an EU national in the UK or a UK national in the EU who resided outside the host State before the end of the transition period and fulfil the conditions established in point (2) of Article 2 of Directive 2004/38, in addition to individuals who are born to or legally adopted by covered individuals after the end of the transition period. Therefore, this functions as a generational clause which ensures the continuing protection of offspring so as to ensure continuity of legal rights in order to preserve family unity. Article 39 of the Agreement confirms the ‘life-long protection’ of the rights provided for in the Titles, which may only be revoked if the conditions are fulfilled for their revocation established in Article 20 on the restrictions of the rights of residence and entry.

An important new specific feature is the discretionary regime for the issuance of residence documents provided for in Article 18. The United Kingdom has decided to exercise the discretion whereby a host State ‘may require’ citizens to apply for a new residence status which has been labelled ‘settled status’. This functions as the status conferring the rights under the Title, and is attested to by an official document. It remains to be seen whether the remaining Member States will also exercise this discretion with regard to UK nationals. The design of this new regime may be argued to ensure a balance towards the interests of individuals, at least on paper. For example, Article 18(1)(e) details an obligation for the system to be ‘smooth, transparent, and simple’ and details that any unnecessary administrative burdens should be avoided. Paragraph (f) mandates the application forms to be ‘short, simple, user friendly and adapted to the context of the Agreement’ and also allows for joint applications made by families at the same time to be considered together. Paragraph (g) specifies further that the document evincing the status should be free of charge or a charge not exceeding that for similar documents for nationals. Paragraph (o) establishes an obligation upon authorities to help applicants determine their eligibility, to avoid any errors or omissions, and provides the opportunity to furnish supplementary evidence and correct any deficiencies, errors, or omissions.

The provision also provides for significant leeway regarding the deadlines for application. Article 18(1)(b) provides for a deadline of six months after the transition period, or three months for individuals who enter after this first deadline date. In the event of technical problems with the system this deadline will be extended automatically by one year. Paragraph (d) establishes that in the situation in which the deadline is not respected, the competent authorities must assess all the circumstances and reasons for this, and are obliged to allow the person to submit the application within a reasonable further period of time, if there are reasonable grounds for the failure to respect the deadline. This provides for a lot of discretion in terms of ensuring that individuals have the greatest opportunity to register for the new status. This provision would become a potential vein for litigation as the new regime comes into practice, especially due to the indeterminancy of the term ‘reasonable’ which provides a lot of interpretative ambiguity that may need to be resolved by dispute resolution bodies.

Paragraph (q) establishes that the new residence document shall include a statement that it has been issued in accordance with the Agreement. This ties the status to the new transnational regime established by the international agreement, rather than the documents being purely a creature of national administrative law. Paragraph (r) accordingly provides for judicial and administrative redress which a decision is refused, including an examination of the legality of the decision in addition to all the facts and circumstances to ensure that the decision is not disproportionate. This accordingly mandates the UK authorities to continue applying the ‘European’ standard of proportionality assessments. The final relevant points are that individuals can still rely on the new regime even if their host State has chosen not to implement it. Article 18(4) establishes that, in this event, individuals will still have the right to apply for a residence document in accordance with the conditions set out in Directive 2004/38. This will be accompanied by a statement that the document is issued in accordance with the Withdrawal Agreement. This ensures that individual’s rights are tied to the binding Agreement with its direct effect and extensive enforcement mechanisms beyond national law. Finally, Article 19 provides a right to apply voluntarily for the residence status from the date of entry into force of the Agreement throughout the transition period.

On the theme of enforcement procedures, the Agreement provides for an extensive regime for the judicial protection of the substance of the rights in Part II. Article 158 provides for the continuation of the preliminary reference procedure from United Kingdom courts to the Court of Justice of the European Union for cases that commenced at first instance within a period of 8 years after the end of the transition period. Article 159 establishes a new independent ‘Authority’ within the United Kingdom to monitor the implementation and application of Part Two. This authority will have powers equivalent to the European Commission to conduct enquiries, receive complaints from affected individuals, and also the right to bring a legal action before a competent court. The ‘Authority’ may only be disbanded by a decision of the Joint Committee overseeing the Agreement. Article 165(1)(a) establishes a specialised Committee on Citizens’ Rights as one of the constituent parts of this Joint Committee overseeing the ‘interpretation and application’ of the Agreement and meeting at least once a year. Finally, with regard to enforcement, Article 178(2)(a) insulates Part II on citizens’ rights from the remedy of temporary suspension of obligations by one of the parties to the Agreement following a failure to implement a ruling of the Joint Committee. This recognises that the protection of citizens’ rights forms part of the substantive ‘core’ of the new legal order established by the Withdrawal Agreement. Accordingly, these provisions must be afforded comprehensive judicial  protection and cannot be affected by the use of coercive remedial measures in public international law.

Although Part II of the Withdrawal Agreement preserved the substance of rights grounded in Article 20(2)(a) and Article 21 TFEU, it does not preserve the political rights to vote and stand as candidates in European Parliament and municipal elections provided for by Article 20(2)(b) and Article 22 TFEU. With regard to these political rights, it remains within the discretion of the United Kingdom to enfranchise EU nationals in local elections, and accordingly it would remain within the discretion of individual EU Member States to enfranchise UK nationals to vote in local elections as Third-Country Nationals. Indeed, it may also be possible and desirable that UK nationals are also enfranchised in European Parliament elections. Some precedent for extending the franchise for these elections beyond those holding EU citizenship is provided by the United Kingdom whereby qualifying Commonwealth citizens may vote in European Parliament elections (see page 6 of this GLOBALCIT report). Indeed, the special situation that UK nationals in the EU-27 have as ‘nationals of a former Member State’ may provide the basis for a normative argument that there should be measures at the EU level to enfranchise them in European Parliament elections. Such an argument will be the subject of a forthcoming piece by the author of this contribution. The silence of the Withdrawal Agreement on political rights may ossify the conception of the status as one that individuals utilise for the passive acquisition and exercise of legal rights, rather than a status that empowers individuals to engage in self-determination through participation in democratic procedures.

Indeed, Ruvi Ziegler has identified practical problems beyond this theoretical deficiency. A lacuna may arise in Northern Ireland, where all individuals have the option to adopt nationality of Ireland by virtue of the Good Friday Agreement. Therefore, UK nationals born in this territory have the option to retain their EU citizenship. This opens up the possibility of a territory in which theoretically all national residents could be EU citizens, but in which there is no provision for them to exercise their rights to vote for the European Parliament within the territory in which they reside. This could lead to a factual situation analogous to that of residents within Gibraltar who, before the Matthews decision of the European Court of Human Rights, were not enfranchised in European Parliament elections despite holding EU citizenship. This could similarly become an issue for litigation, and may require further unilateral or bilateral solutions beyond the scope of the Withdrawal Agreement.

The final point to make about Part II of the UK-EU Withdrawal Agreement is that in addition to not preserving political rights it also obviously does not preserve the status of EU citizenship for UK nationals. The negotiators on both the United Kingdom and the European Union sides have relied implicitly on an interpretation of the Treaties whereby the withdrawal of a Member State automatically leads to the extinction of EU citizenship for those holding the nationality of that state. This is based on the assumption that the condition for the acquisition of EU citizenship, nationality of a Member State, also functions as the condition for its revocation. This assumption was challenged in a case brought by UK nationals in Amsterdam in February 2018 arguing for a preliminary reference to the Court of Justice to determine whether EU citizenship is necessarily lost with Member State withdrawal or not. The first instance judgment requesting a reference was reversed on appeal due to the issue being ‘insufficiently concrete’ in light of the hypothetical nature of the dispute. However, if and when the Withdrawal Agreement comes into force, this legal claim may for the first time become moot as the consequences of withdrawal move from the hypothetical to reality. Indeed, such a possibility may have been recognised by the General Court on Monday 26 November in its dismissal of the claim in the Shindler case that the European Council’s recommendation for a decision to commence withdrawal negotiations did not directly affect the legal situation of UK citizens. The press release states that this is ‘merely a preparatory act and draws the consequences of the UK’s notification of its intention to withdraw. It is therefore only at the end of the Article 50 TEU procedure that the rights of the applicants are liable to be affected.’ If the United Kingdom Parliament does indeed ratify the Withdrawal Agreement in its ‘meaningful vote’ on 11 December, then the end of the process may come with the Agreement entering into force on 30th March 2019. At this point, the route may be open again for UK nationals to challenge the loss of their EU citizenship.