The Personal Scope of the UK’s EU Withdrawal Agreement: The Principal Beneficiaries of Citizens’ Rights

Introduction

Only certain UK Nationals and EU Citizens fall within the personal scope of the Withdrawal Agreement as regards Citizens’ Rights. The characteristic they share is that they have moved between the UK and the EU, or vice versa, before the end of the Brexit transition period (31 December 2020). Thus, for example, the primary carer of a UK National resident in the UK, who derives a right of residence from their role as carer following the case of Zambrano C-39/09 (which interpreted the scope of Article 20 of the Treaty on the Functioning of the European Union (TFEU)) does not benefit from the Withdrawal Agreement. However, a German banker, a self-employed Italian journalist, or a Hungarian university lecturer working in the UK before the end of the Brexit transition period, falls within the personal scope of the Agreement and thus benefits from its protection.

As to who is a UK National for these purposes, see my blog post Who is a UK national under the UK’s EU Withdrawal Agreement? By contrast, the definition of who is an EU Citizen is straightforward: any person holding the nationality of an EU member state (article 2(c)).

The definition of who falls within the scope of the Citizens’ Rights Part of the Withdrawal Agreement does not affect the provision made within that Part for the co-ordination of social security, pensions, and healthcare arrangements.

This post sets out the four classes of principal beneficiaries of the Citizens’ Rights Part of the Withdrawal Agreement. It does not consider which classes of family members benefit.

EU Citizens Resident in the UK

The first class of people within the scope of the Withdrawal Agreement are EU Citizens who exercised their right to reside in the UK in accordance with EU law before the end of the Brexit transition period (31 December 2020) and continue to reside in the UK thereafter (article 10(1)(a)). There are several important points to note about this short formulation. First, what matters is the exercise of a right to reside but no minimum period of time for its exercise is specified. Second, the right to reside must be exercised in accordance with EU law, so any abuse of rights (something narrowly construed by the Court of Justice of the EU (CJEU)) will not count. For consideration of what EU law may be considered for the purposes of the Withdrawal Agreement see my blog post EU Law under the Withdrawal Agreement: The Bedrock of EU Citizens’ Rights . Third, the right of residence must be exercised before the end of the Brexit transition period (31 December 2020). Fourth, an EU Citizen must continue to reside in the UK thereafter. In that regard, residence is not the same thing as presence on any given day and provision is made for continuity of residence notwithstanding permitted days of absence (article 11).

UK Nationals Resident in an EU Member State

The second class of people within the scope of the Withdrawal Agreement are United Kingdom Nationals who exercised their right to reside in an EU member state in accordance with EU law before the end of the Brexit transition period (31 December 2020) and continue to reside there thereafter (article 10(1)(b)). There are several important points to note about this short formulation. First, what matters is the exercise of a right to reside but no minimum period of time for its exercise is specified. Second, the reference is to an EU member state, not to the EU member states generally. The focus is on the UK Nationals residence in that state (before and then after the end of the transition period). Third, the right to reside must be exercised in accordance with EU law, so any abuse of rights (something narrowly construed by the Court of Justice of the EU (CJEU)) will not count. For consideration of what EU law may be considered for the purposes of the Withdrawal Agreement see my blog post EU Law under the Withdrawal Agreement: The Bedrock of EU Citizens’ Rights . Fourth, the right of residence must be exercised before the end of the Brexit transition period (31 December 2020). Fifth, a UK National must continue to reside in that EU member state thereafter. In that regard, residence is not the same thing as presence on any given day and provision is made for continuity of residence notwithstanding permitted days of absence (article 11).

EU Citizen Frontier Workers Working in the UK

The third class of people within the scope of the Withdrawal Agreement are EU Citizens who exercised their right as frontier workers in the UK in accordance with EU law before the end of the Brexit transition period (31 December 2020) and continue to do so thereafter (article 10(1)(c)). For this purpose, an EU Citizen frontier worker is one who pursues an economic activity in accordance with Article 45 TFEU (as a Worker) or 49 TFEU (self-establishment, e.g. as self-employed) in the UK where they do not reside. There are several important points to note about this short formulation. First, what matters is the pursuit of economic activity but no minimum period of time for its exercise is specified. Second, the exercise of economic activity must be in accordance with EU law, so any abuse of rights (something narrowly construed by the Court of Justice of the EU (CJEU)) will not count. For consideration of what EU law may be considered for the purposes of the Withdrawal Agreement see my blog post EU Law under the Withdrawal Agreement: The Bedrock of EU Citizens’ Rights. Third, the exercise of economic activity must be before the end of the Brexit transition period (31 December 2020). Fourth, an EU Citizen must continue to be economically active in the UK thereafter.

UK National Frontier Workers Working in an EU Member State

The fourth class of people within the scope of the Withdrawal Agreement are UK Nationals who exercised their right as frontier workers in one or more EU member states in accordance with EU law before the end of the Brexit transition period (31 December 2020) and continue to do so thereafter (article 10(1)(d)). For this purpose, a UK National frontier worker is one who pursues an economic activity in accordance with Article 45 TFEU (as a Worker) or 49 TFEU (self-establishment, e.g. as self-employed) in on or more EU member states where they do not reside. There are several important points to note about this short formulation. First, what matters is the pursuit of economic activity but no minimum period of time for its exercise is specified. Second, the exercise of economic activity must be in accordance with EU law, so any abuse of rights (something narrowly construed by the Court of Justice of the EU (CJEU)) will not count. For consideration of what EU law may be considered for the purposes of the Withdrawal Agreement see my blog post EU Law under the Withdrawal Agreement: The Bedrock of EU Citizens’ Rights. Third, the exercise of economic activity must be before the end of the Brexit transition period (31 December 2020). Fourth, a UK national must continue to be economically active in one or more EU member states thereafter.

4 comments

  1. […] Citizens and UK Nationals fall within the scope of the UK’s EU Withdrawal Agreement, see my post The Personal Scope of the UK’s EU Withdrawal Agreement: The Principal Beneficiaries of Citizens’…. Those that do, bring certain family members within scope. Such family members are divided into two […]

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