Family Reunion Rights for EU Citizens and UK Nationals under the UK’s EU Withdrawal Agreement: Direct Family Members

Introduction

Only certain EU 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’ Rights . Those that do, bring certain family members within scope. Such family members are divided into two classes: (i) those who rights arise automatically by operation of law (direct family members; e.g. parents, children), and (ii) those other family members who have right to apply for and secure a decision on their right to entry and residence (indirect family members; e.g. aunts, nephews, unmarried partners). This post is solely concerned with direct family members.

Who is a Family Member under the Withdrawal Agreement?

The definition and application of ‘family members’ who fall within the personal scope of the Withdrawal Agreement (articles 9 and 10) as regards Citizens’ Rights is not easy to follow. Further, it is without prejudice to the discrete provision made as regards family members in respect of the co-ordination of social security, pensions, and healthcare in Title III of the Citizens’ Rights Part of the Withdrawal Agreement.

‘Family Members’ (article 9) means, the following persons, regardless of their nationality who fall within the personal scope of the Withdrawal Agreement (as to which, see below):

• Spouse
• A registered partner (i.e. civil partner), where the partnership has been contracted under the legislation of a Member State (inc. the UK), where the host Member State treats registered partnerships as equivalent to marriage and its legislative conditions are satisfied
• Direct descendants (i.e. children, grandchildren, etc.) under 21 years of age or who are dependent, of the principal person (EU Citizen or UK National as the case may be) or their spouse or registered partner
• Dependent direct relatives in the ascending line (i.e. parents, grandparents, etc.), of the principal person (EU Citizen or UK National as the case may be) or their spouse or registered partner

The question of when a family member of ‘dependent’ and is beyond the scope of this post. But dependency should not be assumed: it is a matter of applying the case law on the point to the particular facts.

In addition, for the purposes of the Withdrawal Agreement, ‘family members’ also includes:

• Persons (other than those relying on rights as indirect family members who have the right to apply for and secure a decision on their right to entry and residence (e.g. aunts, nephews, unmarried partners)) whose presence is required by EU Citizens or UK Nationals (as the case may be) in order not to deprive those EU Citizens or UK Nationals of a right of residence granted by the Withdrawal Agreement.

This is an important addition, as it brings within the scope of the definition of ‘family members’ those persons who presence in a host state is deemed necessary to ensure the right of residence of EU Citizens or UK Nationals who have exercised rights of free movement. In practice, it extends at least to certain primary carers of children, for example the beneficiaries of the case of Chen C-200/02. But is may also go further. It does not appear to require a relationship such as being a biological parent or even a parent of any sort. Further, it is drafted in broad manner so that it may embrace other situations requiring necessary presence.

Which Family Members fall within the Personal Scope of the Withdrawal Agreement?

Once it has been ascertained who are the ‘family members’, the next question is whether such persons fall within the personal scope of the Withdrawal Agreement. For this purpose, ‘family members’ must be divided into two classes: (i) those who rights continue to rely on or derive from a relationship with an EU Citizen or UK National (as the case may be), and (ii) those who had such a relationship but whose residence rights have since ceased to be reliant upon it and have become independent.

Class (i): Continuing family relationship residence rights

As regards class (i), family members must be the family members of EU Citizens or UK Nationals who themselves fall within the personal scope of the Withdrawal Agreement:

• EU Citizens resident in the UK
• UK Nationals resident in an EU Member State
• EU Citizen Frontier Workers working in the UK
• UK Frontier Workers working in an EU Member State

Thus, there must be an exercise of free movement of some sort from the EU to the UK or vice versa. For full consideration of such EU Citizens and UK Nationals see my post The Personal Scope of the UK’s EU Withdrawal Agreement: The Principal Beneficiaries of Citizens’ Rights .

Thereafter, one of three conditions must be satisfied:

Those already resident: they resided in the host State in accordance with EU law before the end of the Brexit transition period (31 December 2020) and continue to reside there thereafter (NB: (i) no minimum period of time for its exercise is specified; (ii) 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; (iii) the right of residence must be exercised before the end of the Brexit transition period (31 December 2020); and (iv) they must continue to reside in the host 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).)
Those joining after the end of the Brexit transition period: they were directly related to an EU Citizen or UK National (themselves within the personal scope, see above) and resided outside the host State before the end of the Brexit transition period (31 December 2020), provided that they fulfil the conditions to be family members (e.g. as a spouse, descendant under 21, etc. see above) at the time they seek residence under the Withdrawal Agreement in order to join the person the EU Citizen or UK National (as the case may be) to whom they are directly related
Those born or adopted after the end of the Brexit transition period: they were born to, or legally adopted by, an EU Citizen or UK National (themselves within the personal scope, see above) after the end of the Brexit transition period (31 December 2020), whether inside or outside the host State, and fulfil the conditions to be direct descendants (see above) at the time they seek residence under the Withdrawal Agreement in order to join the EU Citizen or UK National (themselves within the personal scope), and fulfil one of the following conditions:

(1) both parents are persons are EU Citizens or UK Nationals (as the case may be) (themselves within the Agreement’s personal scope, see above, e.g. a German banker and her Austrian spouse residing in the UK)
(2) one parent is an EU Citizen or UK National (as the case may be) (within the Agreement’s personal scope, see above) and the other is a national of the host State, e.g. a self-employed Italian journalist and her UK national partner residing in the UK); or
(3) one parent is an EU Citizen or UK National (as the case may be) (within the Agreement’s personal scope, see above) and has sole or joint rights of custody of the child, in accordance with the applicable rules of family law of an EU Member State or of the UK, including applicable rules of private international law (under which rights of custody established under the law of a third State are recognised in the Member State or in the UK, in particular as regards the best interests of the child, and without prejudice to the normal operation of such applicable rules of private international law; e.g. a Bulgarian mother residing in the UK awarded sole custody)

‘Rights of custody’ means rights of custody within the meaning of Article 2 point (9) of Council Regulation (EC) No 2201/2003 (i.e. the Brussels IIa Regulation), including rights of custody acquired by judgment, by operation of law or by an agreement having legal effect.

Further, in this context, ‘host state’ has a specific meaning:

• As regards EU citizens and their family members, the UK, if they exercised their right of residence there in accordance with EU law before the end of the Brexit transition period (31 December 2020) and continue to reside there thereafter
• in respect of United Kingdom nationals and their family members, the EU Member State in which they exercised their right of residence in accordance with EU law before the end of the Brexit transition period (31 December 2020) and in which they continue to reside thereafter.

For consideration of what EU law may be considered for the purposes of the Withdrawal Agreement see my post EU Law under the Withdrawal Agreement: The Bedrock of EU Citizens’ Rights .

Class (ii): Residence rights now independent of family relationship

As regards class (ii), this includes those family members who resided in the host state (see above for definition) before the end of the Brexit transition period (31 December 2020) in accordance with the following rights of residence and who and continue to reside there thereafter:

• On the death of departure of the principal EU Citizen or UK National (as the case may be) (applying article 12 of Directive 2004/38/EC)
• On the divorce, marriage annulment, or registered partnership termination, severing the connection to the principal EU Citizen or UK National (as the case may be) (applying article 12 of Directive 2004/38/EC)
• As non-EU Citizen (or non-UK National, as the case may be) family members who acquired the EU right of permanent residence after 5 years’ residence in the host state (applying article 16(2) of Directive 2004/38/EC)
• As EU Citizens or UK Nationals (as the case may be) who were employed or self-employed (and their family members of any nationality) and who acquired the EU right of permanent residence in less than five years due to retirement, permanent incapacity, frontier working, or (where a family member) on the principal EU Citizen or UK National’s death (applying article 17 of Directive 2004/38/EC)
• As non-EU Citizen (or non-UK National, as the case may be) family members who have acquired the EU right of permanent residence after 5 years’ residence in the host state by virtue of the principal EU Citizen or UK National’s death, or following the divorce, marriage annulment, or registered partnership termination, severing the connection to the principal EU Citizen or UK National) (applying article 18 of Directive 2004/38/EC)

Note, the right of residence must be exercised before the end of the Brexit transition period (31 December 2020). Note further, the family member concerned must continue to reside in the host 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).

4 comments

  1. […] UK and the EU after Brexit: Rights under the Withdrawal Agreement • Direct Family Members, see Family Reunion Rights for EU Citizens and UK Nationals under the UK’s EU Withdrawal Agreement: Dir… • Indirect Family Members, see Family Reunion Rights for EU Citizens and UK Nationals under the […]

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