Introduction 

Only certain Family Members who are 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(2)). 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 the EU citizen family members of British citizens retuning to the UK from an EU member state may be able to secure Settled Status 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 citizen family members 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 as an EU Citizen family member. Who are these people? To enjoy residence rights in the UK as an EU Citizen family member or in an EU state as a UK National family member, a person must fall within the personal scope of the Withdrawal Agreement, see my posts Family Reunion Rights for EU Citizens and UK Nationals under the UK’s EU Withdrawal Agreement: Direct Family Members and Family Reunion Rights for EU Citizens and UK Nationals under the UK’s EU Withdrawal Agreement: Indirect Family Members. Thereafter, which of those persons enjoys residence rights after the end of the Brexit transition period (31 December 2020)?

Residence Rights 

EU Citizen family members  (in the UK) and United Kingdom National family members  (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 right to reside under the TFEU that may be enjoyed (subject to its limitations and conditions) under the Withdrawal Agreement after the end of the Brexit transition period (31 December 2020) is the right to move and reside as a Citizen (Article 21). In practice, the instances Article 21 TFEU alone establishes a right to reside are rare. Most often it is deployed in harness with other EU legal provisions.

Family member rights of residence may also be derived from residence rights enjoyed by the principal person in the host state (EU Citizen, or UK National, as the case may be) who enjoys a right of residence under another TFEU provision. 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 retain her Self-employed status (Article 49) in the UK 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) in the UK where ceasing work on the same basis. In both cases, such persons would general rights to reside for their family members. 

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 family member of an EU Citizen or UK National who is in the host state as a Worker, Self-employed person, Self-sufficient person, or as a Student (Article 7(1)(d), Article 14)
• The right of residence as a family member retained when the principal family member in the host state (EU Citizen or UK National, as the case may be) has died or has departed from the host state (Article 12(1), Article 14)
• The right of residence retained by the children of the principal family member in the host state (EU Citizen or UK National, as the case may be) who has died or has departed from the host state, and the right retained by the parent with actual custody of them, where the children reside in the host state and study there.  (Article 12(3), Article 14)
• The right of residence as a family member retained in the event of divorce, annulment of marriage, or termination of registered partnership, that sunders the family member from principal family member in the host state (EU Citizen or UK National, as the case may be) (Article 13(1))
• The right of permanent residence acquired after five years (Article 16(1))

• The right of permanent residence acquired in less than five years by a family member of a person in the host state (EU Citizen or UK National, as the case may be) who themself has acquired the right of permanent residence in less than five years as a Worker or Self-employed person who: (i) reaches pension age and ceases work or who takes early retirement; (ii) ceases work as a result of permanent incapacity to work; or (iii) lives and works in the host state but then becomes a frontier worker in another state while continuing to reside in the host state (Article 17(3))
• The right of permanent residence acquired in less than five years by a family member of a person in the host state (EU Citizen or UK National, as the case may be) who is a Worker or Self-employed person and who dies (Article 17(4))

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 the family member of 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.