The Withdrawal Agreement contains both non-discrimination and equal treatment provisions, as regards those who fall within the scope of the Citizens’ Rights protection. The precise relationship between the two provisions may be a matter of debate in a practical situation. When such a debate is conducted, it will be important to look back to earlier debates conducted as to the relationship between the equivalent provisions for EU Citizens who exercise rights of free movement under Articles 20 and 21 of Treaty on the Functioning of the European Union and the Free Movement Directive (2004/38/EC).
As regards Citizens’ Rights, the personal scope of the Withdrawal Agreement extends to:
• EU Citizens and UK Nationals, see the Personal Scope of the UK’s EU Withdrawal Agreement: The Principal Beneficiaries of Citizens’ Rights
• Frontier Workers, see Frontier Workers in the UK and the EU after Brexit: Rights under the Withdrawal Agreement
• Direct Family Members, see Family Reunion Rights for EU Citizens and UK Nationals under the UK’s EU Withdrawal Agreement: Direct Family Members
• Indirect Family Members, see Family Reunion Rights for EU Citizens and UK Nationals under the UK’s EU Withdrawal Agreement: Indirect Family Members
The Withdrawal Agreement contains provisions for Non-Discrimination and Equal Treatment. How do these provisions work?
As regards people falling within the personal scope of the Citizens’ Rights provisions of the Withdrawal Agreement (see above), Article 12 provides that any discrimination on grounds of nationality is prohibited in the host state (of residence) and the state of work (where the person concerned is a frontier worker).
For these purposes, any discrimination on grounds of nationality is to be understood as it is understood in the equivalent provision in the main EU Treaty (the Treaty on the Functioning of the European Union) (Article 18).
This broad, generous, provision, is without prejudice to any special provisions made elsewhere in the Citizens’ Rights part of the Withdrawal Agreement, see for example the limitations imposed on the equal treatment provisions in the residence-related rights chapter, (Article 23), below.
The practical impact is to prevent discrimination as between a home state national and a national from another state residing or working there. Thus, a self-employed Italian journalist resident in the UK before the end of the Brexit transition period (31 December 2020) and who had continued to reside there after that date, is entitled to be charged student fees at the rates set for UK-resident UK Nationals. Equally, a UK National resident in and working Germany before the end of the Brexit transition period (31 December 2020) and who has continued to reside there after that date, is entitled to access public services there on the same terms as a German national.
The situations in which non-discrimination on grounds of nationality may be deployed to eliminate differential treatment in the host state or state of work are not closed. Accordingly, it is vital that all those persons who fall within the scope of the Citizens’ Rights provisions of the Withdrawal Agreement, stand ready to use it to eliminate any discrimination in their treatment, as it emerges now that the Brexit transition period has ended.
All EU Citizens residing in the UK (as host state) on the basis of the Withdrawal Agreement, and all UK Nationals so residing in an EU state (as host state), enjoy equal treatment with the host state nationals, within the scope of the Citizens’ Rights part of the Withdrawal Agreement, see Article 23. The benefit of that right is extended to those family members of EU Citizens or United Kingdom Nationals who have the right of residence or permanent residence.
However, this is subject to the specific provision made in the Citizens’ Rights Part of the Withdrawal Agreement in Title I (General Provision), Title II (Rights and Obligations) and Title IV (Other Provisions. It is also expressed to be in accordance with Article 24 of the Free Movement Directive (2004/38/EC), therefore mandating a consistency of approach of derogations, see below.
By way of derogation the host state (the UK or an EU state, as the case may be) is not obliged to confer entitlement to social assistance during periods of residence solely on the basis of the initial right of residence of up to three months, or when exercising rights as jobseekers (having entered in order to seek employment and can provide evidence that they are continuing to seek employment and have a genuine chance of being engaged).
Further, prior to a person’s acquisition of the right of permanent residence under the Withdrawal Agreement, the host state (the UK or an EU state, as the case may be) is not obliged to grant maintenance aid for studies, including vocational training, consisting of student grants or student loans to persons other than Workers, Self-employed persons, Persons who retain such status, or members of their families. Note that the derogation does not extend to student fees rates; the latter must be set at the same rate as applies in respect of home state nationals.