Restrictions on Rights of Residence and Entry under the UK’s EU Withdrawal Agreement

Introduction

EU Citizens, UK Nationals, their family members, and other persons protected by the Withdrawal Agreement have rights entry and residence in the host state in which they reside, see my posts The Residence Rights of EU Citizens and UK Nationals under the Withdrawal Agreement, The Residence Rights of Family Members who are EU Citizens or UK Nationals under the Withdrawal Agreement, The Residence Rights of Family Members who are not EU Citizens and not UK Nationals (so-called third country national family members) under the Withdrawal Agreement, The Right of Permanent Residence under the UK’s EU Withdrawal Agreement, and Rights of Exit and Entry under the UK’s EU Withdrawal Agreement. What restrictions on ground of conduct, fraud, or abuse of rights, may be lawfully imposed on these rights of entry and residence?

Restrictions on Rights of Residence and Entry

In relation to conduct that occurred before the end of the Brexit transition period (31 December, EU Citizens, UK Nationals, their family members, and other persons who are exercising Withdrawal Agreement rights, must have their conduct considered in accordance EU law and the applicable provisions of the free movement Directive (2004/38/EC), see Article 20 of the Withdrawal Agreement. This provides a structured, proportional approach to decisions taken on grounds of public policy, public security, and public health. Broadly speaking, persons who benefit from this standard have more protection against refusal of entry or residence, and from expulsion, than those who have soley applicable national law standards on which to rely.

In relation to conduct that occurred after the end of the Brexit transition period (31 December, EU Citizens, UK Nationals, their family members, and other persons, who are exercising Withdrawal Agreement rights, may have their conduct constitute grounds for restriction of rights of residence by the host state or the right of entry in the state of work (e.g. as a frontier worker) in accordance with national legislation. This allows a state to apply its own policy as to refusal of entry and residence, and threshold for expulsion on ground of conduct. Broadly speaking, persons who benefit from this standard have less protection against refusal of entry or residence, and from expulsion, than those who have the protection of EU law and the Withdrawal Agreement.

Thus, what matters is when the conduct took place: if it takes place before the end of the Brexit transition period, EU law standards apply; if it takes place afterward, national standards may be applied. A German banker residing in the UK who is convicted of money-laundering in relation to events occurring in 2019 has the protection of EU law; a self-employed Italian journalist residing in the UK who is convicted of a public order offence while covering a Coronavirus restriction protest occurring in 2021 may have her conduct considered under UK law.

Abuse of Rights and Fraud

The host state (in case of residence) or the state of work (in case of frontier workers) may adopt the necessary measures to refuse, terminate or withdraw any right conferred by the Withdrawal Agreement in the case of the abuse of rights or fraud, as defined in the free movement Directive (2004/38/EC). Such measures must be proportionate and subject to the Agreement’s safeguards and rights of appeal.

However, the host state (in case of residence) or the state of work (in case of frontier workers) may remove applicants who submitted fraudulent or abusive applications from its territory under the conditions set out in the free movement Directive (2004/38/EC) even before a final judgment has been handed down in the case of judicial redress sought against any rejection of such an application. But such persons may not be removed from the host state or state for work where they appealed against the removal decision and (where necessary) applied for an interim order to suspend enforcement of the removal decision. Removal may not take place until the decision on the interim order has been taken, except:

• where the expulsion decision is based on a previous judicial decision
• where the persons concerned have had previous access to judicial review, or
• where the expulsion decision is based on imperative grounds of public security (as defined in the free movement Directive (2004/38/EC)

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