Introduction

Withdrawal Agreement rights of residence for EU Citizens (in the UK) and UK Nationals (in an EU State) would be incomplete if such persons could not come and go freely. Generally speaking, only a state’s own nationals have rights to enter and leave it without restriction. Thus, absent EU free movement rights, only British citizens and certain Commonwealth citizens have the right to enter and leave the UK. All other non-nationals (aliens) require permission to enter and to leave. The Withdrawal Agreement creates rights of entry and exit for those who have residence rights under the Agreement. By agreeing to such rights, a state has agreed to add such persons to the class of persons who can come and go freely. In that way, their in-country rights of residence are secured and made effective even when they come and go. In reality, it is a ‘free movement’ provision. In what way is provision made?

Rights of Entry and Exit

EU Citizens and UK Nationals, their respective family members, and other persons, who reside in the territory of the host state (the UK or the EU as the case may be) in accordance with the conditions set out in the Citizens’ Rights part of the Withdrawal Agreement have the right to leave and enter the host state, see article 14 of the Withdrawal Agreement. They may do so with a with a valid passport or national identity card in the case of EU Citizens and UK Nationals (though of course the UK has not ID card scheme for its own nationals at present), and with a valid passport in the case of their respective family members and other persons who are not EU Citizens or UK Nationals.

The provision for the right is as set out in the free movement Directive (2004/38/EC).

Thus, as regards the right of exit, without prejudice to the provisions on travel documents applicable at national border controls, all EU Citizens and UK Nationals with a valid identity card or passport, and their family members who are not EU Citizens or UK Nationals and who hold a valid passport, have the right to leave the territory of the host state to travel to an EU State or the UK (as the case may be). A self-employed Italian journalist resident in the UK pursuant to Withdrawal Agreement rights has the right to leave to travel to Italy or Spain, etc. But she has no right (under the Withdrawal Agreement) to do so travel to a third country (e.g. America). Similarly, a UK National banker resident in Frankfurt pursuant to Withdrawal Agreement rights has the right to leave to travel to the UK. But he has no right (under the Withdrawal Agreement) to do so travel to a third country (e.g. Canada).

Further, as regards the right of entry, without prejudice to the provisions on travel documents applicable at national border controls, the UK must grant EU Citizens (and an EU State must grant UK Nationals) leave to enter their territory with a valid identity card or passport and must grant family members who are not EU Citizens or UK Nationals leave to enter their territory with a valid passport.

A Restriction on the Use of ID Cards

Five years after the end of the Brexit transition period (31 December 2020), the host state (the UK or an EU State) 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 (ICAO) standards related to biometric identification. Until that time (31 December 2025) the UK must allow all EU Citizens with rights of residence under the Withdrawal Agreement entry on production of a valid ID card. From the five-year point onwards ID cards may still suffice where compliant with ICAO biometric standards.

No Requirement for Visas for Some

No exit visa, entry visa or equivalent formality may be imposed on holders of valid documents issued as:

• Withdrawal Agreement Residence Status documents (e.g. UK Settled Status documents)
• Withdrawal Agreement Frontier Worker documents

In practice the UK and EU states do not impose exit visa requirements and UK Nationals do not require a visa to enter an EU state, nor EU Citizens a visa to enter the UK. Thus, the principal beneficiaries are family members who are neither EU Citizens nor UK Nationals and who hold the nationality of a third country whose nationals would otherwise require a visa to enter the country concerned (the UK or an EU State as the case may be).

When Visas are Required

When the host state (the UK or an EU State as the case may be) requires family members who join the EU Citizen or UK National after the end of the Brexit transition period (31 December 2020) to have an entry visa, the host state must grant such persons every facility to obtain the necessary visas. Such visas must be issued free of charge as soon as possible, and on the basis of an accelerated procedure. Thus, where a French citizen resident in the UK pursuant to Withdrawal Agreement rights seeks to be joined in the UK by her Algerian spouse, he requires a UK visa (family permit). The UK must operate an accessible visa procedure, issue the visa free of charge, and do so as soon as possible and quickly.