Introduction

Only certain Family Members who are not EU Citizens and not UK Nationals (i.e. so-called third-country family members) 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(3)). 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 third country national 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 third country national 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 a third country national family member. Who are these people? To enjoy residence rights in the UK or in an EU state as a third country 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 

Third country national  family members  in the UK) or 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).  Although the reference is to EU Citizens and extends to UK Nationals for these purposes, it may also benefit third country national family members of such persons. In practice, the instances where 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 as a family member where accompanying or joining an EU Citizen (in the UK) or a UK National (in an EU state) (Article 6(2), Article 14)
• The right of residence as a family member of an EU Citizen or UK National (as the case may be) who is in the host state as a Worker, Self-employed person, Self-sufficient person, or as a Student (Article 7(2), 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 and the family member has resided in the host state as a family member for at least one year before the principal family member’s death (Article 12(2), 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), where: (i) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership, the marriage or registered partnership has lasted at least three years, including one year in the host state; (ii) by agreement between the spouses or the partners or by court order, the spouse or partner who is not an EU Citizen or UK National (as the case may be) has custody of EU Citizen’s or UK National’s (as the case may be) children; (iii) retention of the residence right is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or (iv) by agreement between the spouses or partners or by court order, the spouse or partner who is not an EU Citizen or UK National (as the case may be)  has the right of access to a minor child, provided that the court has ruled that such access must be in the host state, and for as long as is required. (Article 13(2), Article 14)
• The right of permanent residence acquired after five years as the family member of an EU Citizen or a UK National (as the case may be),  who has legally resided with the EU Citizen or a UK National (as the case may be), in the host state for a continuous period of five years (Article 16(2))
• 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))
• The right of permanent residence as a family member  who retained a right of residence  when the principal family member in the host state (EU Citizen or UK National, as the case may be)  died  (see above Article 12(2), Article 14) or  who retained a residence right on divorce, annulment of marriage, or termination of registered partnership (see above Article 13(2), Article 14); after residing legally for a period of five consecutive years in the host state (Article 18)

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.