The Withdrawal Agreement

For EU Citizens or UK nationals and their family members with professional qualifications the Withdrawal Agreement (Article 27) makes provision for the continuing recognition of such qualifications, where recognition took place before the end of the transition period (31 December 2020), or where an application for such recognition was made before the end of the transition period. Protection is needed because a qualification may be obtained in one state (e.g. France) but relied upon by a person working in another state (e.g. the UK).

The protection applies to recognition in the state of residence and in the state of work (as the case may be). In the result, the effects of such recognition are maintained beyond the end of the transition period. The effects include the right to pursue a profession under the same conditions as the nationals of the state concerned (in other words there is right to equal treatment).

‘Professional qualifications’ means qualifications attested by evidence of formal qualifications, an attestation of competence referred to in Article 11 (a)(i) of Directive 2005/36/EC, and/or professional experience.

Recognition of professional qualifications must be made under any of the following provisions:

• Directive 2005/36/EC on professional qualifications for those exercising freedom of establishment under (i) the general system for recognition of evidence of training, (ii) the system for recognising professional experience, or (iii) the recognition system based on the co-ordination of minimum training conditions. This regulation covers a whole range of professions including those such medicine, nursing, and dentistry, as well as architects, accountants, and many others.

• Directive 98/5/EC for lawyers seeking admission to the profession in the state of residence or state of work (note that the Withdrawal Agreement applies to Articles 10(1) and 10(3) of this Directive but not to Article 10(2) (diploma recognition)).

• Directive 2006/43/EC as regards approval of statutory auditors from another EU state

• Directive 74/556/EEC as regards acceptance of evidence of the knowledge and ability to be active as self-employed or an intermediary engaging in the trade and distribution of toxic products, or in activities involving the professional use of toxic products.

Recognition of professional qualifications under the general Directive 2005/36/EC (see above) includes:

• Certain situations where a professional qualification is issued by a non-EU state (third country) and the person has subsequently accumulated professional experience in the EU state that recognised the qualification.

• Decisions granting partial access to a professional activity

• The recognition of professional qualifications for establishment purposes under the European Professional Card scheme.

Certain professional activities may not be regulated by the Withdrawal Agreement or the Directives whose effect it preserves. A German architect in the UK may need continuing recognition of his qualification under this part of the Withdrawal Agreement in order to maintain his practice. But a self-employed Italian journalist does not need to look to this provision for protection in the UK or other EU states as her profession is not regulated in that way.

The Withdrawal Agreement (Article 28) also makes provision for the examination of any application for recognition of a professional qualification made (but not yet decided) in the state of residence or the state or work before the end of the transition period (31 December 2020) by EU Citizens or UK nationals (but not it seems their family members) and in respect of the decision on any such application. Thus, an application made but not decided before the end of the transition period is protected. In this regard, provisions made under Directive 2005/36/EC as regards the European Professional Card are to apply to the extent relevant for recognition under that scheme.

Provision is also made in the Withdrawal Agreement (Article 29) for administrative cooperation between the UK and EU states on the recognition of professional qualifications, where an application is pending but not decided before the end of the transition period. Cooperation may include the exchange of information (including on disciplinary action, criminal sanctions taken, or other serious and specific circumstances likely to have consequences for pursuing the professional activity in question.

Furthermore, for a period not exceeding 9 months from the end of the transition period (31 December 2020) the UK is entitled to use the internal market information system in respect of undetermined application for recognition, insofar as the applications concern procedures for the recognition of professional qualifications for establishment purposes under the European Professional Card scheme.

The European Union (Withdrawal Agreement) Act 2020

The Withdrawal Agreement’s provisions for the recognition of professional qualifications are given effect in UK law through s 12 of the European Union (Withdrawal Agreement) Act 2020. Equivalent protection is made for nationals of EEA states and Switzerland.

An appropriate authority (UK Minister; devolved authority in Scotland, Wales, or Northern Ireland; or both) may make such regulations as it considers ‘appropriate’ to implement, supplement, or otherwise deal with matters arising out of or relating to the protection afforded by the Withdrawal Agreement. The power is very widely drawn but is not unlimited. When the regulations are made, they will need to scrutinised to see whether they conform to the Withdrawal Agreement and are within the scope the enabling provision of the Act.

If an appropriate authority (UK Minister; devolved authority in Scotland, Wales, or Northern Ireland; or both) considers it appropriate regulations made for EU Citizens, other EEA nationals, and their family members, may be made both for those who fall with the scope of the EU Withdrawal Agreement and the EEA Separation Agreement, and also for persons who falls outside their scope but who nonetheless may be granted leave to enter or remain in the UK by virtue of residence scheme immigration rules (e.g. Appendix EU to the Immigration Rules), whether or not they have been granted such leave. See my blog post Immigration Rights of Entry and Residence for EU Citizens under the UK’s European Union (Withdrawal Agreement) Bill for details of the residence scheme immigration rules provisions. Thus, a person who does not benefit from the Withdrawal Agreement but who is nonetheless granted Settled Status, may enjoy continuing recognition of her professional qualifications.

The powers to make regulations may be used to modify any provision made by or under an Act of Parliament. These powers are what are known colloquially as Henry VIII powers. However, the powers cannot be used to modify primary legislation passed or made after the end of the transition period (31 December 2020).

At the time of writing regulations are yet to be made.