Only certain EU Citizens and UK Nationals present in the UK or an EU member state (as the case may be) before the end of the Brexit transition period (31 December 2020) have residence rights protected by the UK’s EU Withdrawal Agreement (Article 13(1)). While local schemes to give effect to the Withdrawal Agreement (such as the UK’s EU Settlement Scheme (EUSS)) may be more generous in some respects as regards the classes of people who are given permission to reside, it remains important to identify who unambiguously falls with the personal scope of the Withdrawal Agreement and attracts residence rights.
For example, while British citizens retuning to the UK from an EU member state may be able to secure Settled Status for their family members under the EUSS, they are not within the scope of the Withdrawal Agreement and therefore not subject to its protection. In addition, the question of whether EU citizens in the UK who achieve Settled Status under the EUSS but who fall outside the strict criteria for Withdrawal Agreement residence rights nonetheless enjoy its protection, calls for reflection.
The first task then is to identify who enjoys residence rights under the Withdrawal Agreement in a personal capacity. Who are these people? To enjoy residence rights in the UK as an EU Citizen or in an EU state as a UK National, a person must fall within the personal scope of the Withdrawal Agreement, see my post The Personal Scope of the UK’s EU Withdrawal Agreement: The Principal Beneficiaries of Citizens’ Rights. Thereafter, which of those persons enjoys residence rights after the end of the Brexit transition period (31 December 2020)?
EU Citizens (in the UK) and United Kingdom Nationals (in an EU state) have the right to reside under the limitations and conditions as set out in various provisions of the main EU Treaty (the Treaty on the Functioning of the European Union (TFEU)) and the Free Movement Directive (2004/38/EC) (the Directive).
Residence Rights under the main EU Treaty
The rights to reside under the TFEU that may be enjoyed (subject to their limitations and conditions) under the Withdrawal Agreement after the end of the Brexit transition period (31 December 2020) are:
- The right to move and reside as a Citizen (Article 21)
- The right to move and reside as a Worker (Article 45)
- The right to move and reside as a Self-Employed person (Establishment) (Article 49)
The right to provide and receive Services (Article 56) has not been included.
Some rights of residence arising under a provision in the TFEU need to be ascertained from the case law of the Court of Justice of the European Union. For example, under the Court’s case law a pregnant self-employed Italian journalist would retained her Self-employed status (Article 49) where ceasing work in account of a period of pregnancy and maternity. Further, under the Court’s case law a pregnant employed German banker would retain her Worker status (Article 45) where ceasing work on the same basis.
Residence Rights under the Free Movement Directive
The rights to reside under the Directive that may be enjoyed (subject to their limitations and conditions) under the Withdrawal Agreement after the end of the Brexit transition period (31 December 2020) are:
- The initial right of residence for up to three months (Article 6(1), Article 14)
- The right of residence as a Worker or Self-Employed person (Article 7(1)(a), Article 14)
- The right of residence as a Self-Sufficient person (Article 7(1)(b), Article 14)
- The right of residence as a Student (Article 7(1)(c), Article 14)
- The right of residence retained as a Worker or Self-Employed person where: (i) unable to work temporarily due to illness or accident, (ii) involuntarily unemployed after having worked in the host state and having registered as a job-seeker, or (iii) embarked on vocational training (Article 7(3), Article 14)
- The right of permanent residence acquired after five years (Article 16(1))
- The right of permanent residence acquired in less than five years by Workers or the Self-employed who: (i) reach pension age and cease work or who take early retirement; (ii) cease work as a result of permanent incapacity to work; or (iii) live and work in the host state but then become frontier workers in another state while continuing to reside in the host state (Article 17(1))
Measures applicable to Residence Rights under the main EU Treaty and under the Directive
Other than the limitations or conditions for obtaining, retaining or losing residence rights imposed on persons by the provisions of the TFEU and the Directive cited above, no other limitations or conditions may be imposed.
Further, as regards the limitations and conditions imposed, discretion may only be exercised in favour of the person concerned. Thus, for example, where a person would be exercising a right to reside as a Self-Sufficient person but for want of comprehensive sickness insurance (CSI), the host state may exercise discretion to waive this condition. Where it does so, the person would seem to acquire rights under the Withdrawal Agreement.
However, discretion could not be exercised in favour of a person who solely asserts a right of residence as a Service provider. Such a right is not within the scope of the Withdrawal Agreement residence rights and thus no question of exercising discretion to waive qualifying conditions arises.