Frontier Workers in the UK and the EU after Brexit: Rights under the Withdrawal Agreement

Introduction 

Frontier Workers live in one EU member state and work in at least one other.  EU citizens who are frontier workers exercise rights of free movement under the EU Treaties and need no special immigration rules (though special provision is made for them and their family members in the Co-ordination of Social Security Regulation (883/2004)). When Brexit transition period ends on 31 December 2020 free movement between the UK and EU member states ends. What happens to those frontier workers who, for example, live in France or Belgium and work in the UK (or vice versa)? How are their rights protected under the Withdrawal Agreement when domestic immigration rules replace the EU movement regime from 2021? 

The Withdrawal Agreement

The provision made in the UK’s EU Withdrawal Agreement is straightforward. 

Under the Agreement, ‘frontier workers’ are  EU citizens or United Kingdom nationals who pursue an economic activity in accordance with Article 45 (free movement of workers) or 49 (right of establishment, e.g. as self-employed) of the Treaty on the Functioning of the European Union  (TFEU) in one or more states in which they do not reside (article 9, Withdrawal Agreement). 

Thereafter, ‘state of work’ means:

  • in respect of EU citizens, the UK, where they pursued an economic activity as frontier workers there before the end of the Brexit transition period (31 December 2020) and continue to do so thereafter. 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.
  • in respect of United Kingdom nationals, an EU member state in which they pursued an economic activity as frontier workers before the end of the Brexit transition period (31 December 2020 and in which they continue to do so thereafter (note for UK nationals they are only frontier workers in the EU member states in which they have worked and not all EU member states). 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 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.

The Personal Scope of the Withdrawal Agreement 

Frontier workers and certain family members fall within the personal scope of the Withdrawal Agreement (article 10, Withdrawal Agreement). 

The first class of people within the personal scope of the Withdrawal Agreement  as frontier workers 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)). This could cover a German banker who works in London for three days a week to work in his company’s London office but who resides in Frankfurt; It could also cover a self-employed Italian journalist who regularly flies to London to cover stories but who resides in Italy. 

The second 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)). This could cover a UK national who travels to Brussels to work for a Belgian-based company but who resides in Kent. 

As regards the family members of the above two classes who fall within the personal scope, see my post Family Reunion Rights for EU Citizens and UK Nationals under the UK’s EU Withdrawal Agreement: Direct Family Members .

The rights of family members of frontier workers are necessarily limited as the principal frontier worker is by definition not resident in the state of work. They play their primary role in the provision made for the co-ordination of social security (Regulation 883/2004). 

Frontier Workers’ Rights under the Withdrawal Agreement

The employed 

In common with other workers, frontier workers have a series of work-related rights protected by the Withdrawal Agreement. These include all rights protected by article 45 TFEU (free movement for workers) and the by the Workers’ Regulation (Regulation 492/11), and embrace matters such as the right to social advantages in the state of work (article 24, Withdrawal Agreement). 

In particular, employed frontier workers enjoy the right to enter and exit the state of work (in accordance with Article 14 of the Withdrawal Agreement),  and they retain the rights they enjoyed as workers there provided they are in one of the circumstances where worker status may be retained under the  free movement Directive (2004/38/EC, article 7(3)(a (b), (c), and (d)) (temporary illness, unemployment, vocational training, etc.), even where they do not move their residence to the state of work. This right to enter and exit the state of work is an immigration right in the sense that it provides for a right of admission and a right to leave. It creates rights at the national border and removes the discretion of the state of work to grant or refuse permission to enter or leave. 

The self-employed 

In common with other self-employed persons, self-employed frontier workers have a series of work-related rights protected by the Withdrawal Agreement. These include all rights protected by Article 49 TFEU (right of establishment, e.g. as self-employed) and embrace matters such as the right to social advantages in the state of work (article 25, Withdrawal Agreement). 

In particular, self-employed frontier workers enjoy the right to enter and exit the state of work (in accordance with Article 14 of the Withdrawal Agreement),  and they retain the rights they enjoyed as self-employed persons there provided they are in one of the circumstances where self-employed status may be retained under the  free movement Directive (2004/38/EC, article 7(3)(a (b), (c), and (d)) (temporary illness, unemployment, vocational training), even where they do not move their residence to the state of work. This right to enter and exit the state of work is an immigration right in the sense that it provides for a right of admission and a right to leave. It creates rights at the national border and removes the discretion of the state of work to grant or refuse permission to enter or leave. 

Documents Certifying Frontier Worker Rights

The state of work may require EU citizens and United Kingdom nationals (as the case may be) who have rights as frontier workers to apply for a document certifying that they have such rights.  Where it does so, such EU citizens and United Kingdom nationals have the right to be issued with such a document (article 26, Withdrawal Agreement).

Rights of Entry and Exit 

EU citizen and United Kingdom national frontier workers have the right to enter and exit the state of work using a valid passport or national identity card (article 14, Withdrawal Agreement, as applicable).  Five years after the end of the Brexit transition period (31 December 2020), the state of work  may decide no longer to accept national identity cards for the purposes of entry to or exit from its territory if such cards do not include a chip that complies with the applicable International Civil Aviation Organisation standards related to biometric identification. 

No exit visa, entry visa or equivalent formality may be imposed on the holder of a valid document certifying frontier worker rights

Restrictions of the Rights of Residence and Entry

As regards Frontier Workers and the restrictions on entry and presence that may be imposed on EU citizens or United Kingdom nationals, where that conduct occurred before the end of the Brexit transition period (31 December 2020), it must be considered in accordance with the familiar EU standards (found in the free movement Directive (2004/38/EC) rather than under the national legislation of the state of work (article 20, Withdrawal Agreement, as applicable). 

However, the conduct of EU citizens or United Kingdom nationals, that occurred after the end of the Brexit transition period (31 December 2020), may constitute grounds for restricting the right of entry in the state of work in accordance with national legislation. As regards the UK, there is less procedural and substantive protection for EU citizens under national law than under EU standards. 

As regards abuse of rights, the state of work may adopt necessary measures to refuse, terminate or withdraw any right in the case of the abuse of those rights or fraud in accordance with the standard set out in the free movement Directive (2004/38/EC, article 35). Such measures are subject to the procedural safeguards and right of appeal provided in that Directive. 

Finally, the state of work may remove applicants who submitted fraudulent or abusive applications from its territory under the conditions set out the free movement Directive (inc. articles 31 and 35), even before a final judgment has been handed down in the case of judicial redress sought against any rejection of such an application.

Equal Treatment and Non-Discrimination 

Discrimination on grounds of nationality (as defined in article 18 of the TFEU) is prohibited in the state of work. There are also specific rights to equal treatment for employed frontier workers (article 24, Withdrawal Agreement) and self-employed frontier workers (article 25, Withdrawal Agreement). 

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