Key Concepts in determining the scope of Citizens’ Rights in the Withdrawal Agreement: Continuity of Residence and Non-Discrimination

Introduction

As regards Citizens’ Rights, the personal scope of the Withdrawal Agreement extends to:

• EU Citizens and UK Nationals, see the Personal Scope of the UK’s EU Withdrawal Agreement: The Principal Beneficiaries of Citizens’ Rights
• Frontier Workers, see Frontier Workers in the 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: Direct Family Members
• Indirect Family Members, see Family Reunion Rights for EU Citizens and UK Nationals under the UK’s EU Withdrawal Agreement: Indirect Family Members

In order to determine who falls within the scope of these provisions and in order to protect them when they do, the Withdrawal Agreement contains provisions for Continuity of Residence and Non-Discrimination. How do these provisions work?

Continuity of Residence

For the purposes of ascertaining who falls within the personal scope of the Citizens’ Rights provisions of the Withdrawal Agreement, as well as for ascertaining whether such a person resided in or resides in a state, Article 11 of the Withdrawal Agreement provides that continuity of residence is not affected by the following absences:

• temporary absences not exceeding a total of six months a year
• absences of a longer duration for compulsory military service
• one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another state

The emphasis is on residence not presence. A person may maintain residence in a state while absent from it for a permitted period. It does not matter whether a person with a resided in a state on any given day, so long as they maintain residence continuity.

Continuity of residence may be attested by any means of proof in use in the host state (the UK or an EU state, as the case may be).

However, continuity of residence is broken by any expulsion decision (e.g. decision to remove or deport from the state) duly enforced (i.e. carried out) against the person concerned.

The right of permanent residence acquired under the free movement Directive (2004/38/EC) before the end of the Brexit transition period (31 December 2020) is not treated as lost through absence from the host state (the UK or an EU state, as the case may be) for a period of five years or less. It is only lost through an absence exceeding five consecutive years.

Again, the emphasis is on residence not presence. A person may maintain residence in a state while absent from it for a permitted period. It does not matter whether a person with a resided in a state on any given day, so long as they maintain residence continuity.

Non-Discrimination

As regards persons falling within the personal scope of the Citizens’ Rights provisions of the Withdrawal Agreement (see above) , Article 12 provides that any discrimination on grounds of nationality shall be prohibited in the host state (of residence) and the state of work (where the person concerned is a frontier worker).

For these purposes, any discrimination on grounds of nationality is to be understood as it is understand in the equivalent provision in the main EU Treaty (the Treaty on the Functioning of the European Union), Article 18.

This broad, generous, provision, is without prejudice to any special provisions made elsewhere in the Citizens’ Rights part of the Withdrawal Agreement (see for example the limitations imposed on the Equal Treatment provisions in the residence-related rights chapter (Article 23)).

The practical impact is to prevent discrimination as between a home state national and a national from another state residing or working there. Thus, a self-employed Italian journalist resident in the UK before the end of the Brexit transition period (31 December 2020) and who continues to reside there after that date, is entitled to student fees at the rates set for UK-resident UK Nationals. Equally, a UK National resident in and working Germany before the end of the Brexit transition period (31 December 2020) and who continues to reside there after that date, is entitled to access public services there on the same terms as a German national.

The situations in which non-discrimination on grounds of nationality may be deployed to eliminate differential treatment in the host state or state of work are not closed. Accordingly, it is vital that all those persons who fall within the scope of the Citizens’ Rights provisions of the Withdrawal Agreement, stand ready to use it to eliminate any discrimination in their treatment, as it emerges after the end of the Brexit transition period (31 December 2020).

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