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EU Draft Withdrawal Agreement

This is the area of this board to discuss the referendum taking place in the UK on 23rd June 2016. Also to discuss the ramifications of the EU-UK deal.

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secret.simon
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EU Draft Withdrawal Agreement

Post by secret.simon » Wed Feb 28, 2018 1:54 pm

EU Draft Withdrawal Agreement

As regards freedom of movement, in most aspects other than the ones below, the Agreement recites and repeats the same conditions as Directive 2004/38/EC.

Preliminary observations

a) Part 2 (governing EU/EEA citizens in the UK & UK citizens in the EEA) will have direct effect and "Any provisions inconsistent or incompatible with that Part shall be disapplied". (Part One, Article 4, Paragraph 1)
While Paragraph 2 states that the UK "shall ensure compliance with paragraph 1 ...through domestic primary legislation", it is worth remembering that in UK constitutional law, "no Parliament may bind its successor".

b) It is still unclear whether the Surinder Singh route and Zambrano routes are protected. My interpretation is that the derivative rights routes (Surinder Singh route, Zambrano/Chen and possibly Lounes) are not covered under the Agreement.
Part One, Article 6
For the purposes of this Agreement, all references to Member States and competent authorities of Member States in provisions of Union law made applicable by this Agreement shall be read as including the United Kingdom and its competent authorities,...

Part Two, Article 8, Paragraph (c)
"host State" means:
(i) in respect of Union citizens, the United Kingdom if they exercised there their right of residence in accordance with Union law before the end of the transition period and continue to reside there thereafter;
(ii) in respect of United Kingdom nationals, the Member State in which they exercised their right of residence in accordance with Union law before the end of the transition period and continue to reside there thereafter;
Does residing in the UK after working in another EEA member-state count as exercising "their right of residence in accordance with Union law before the end of the transition period" for a UK citizen?

Article 9 talks of family members who are resident under the terms of the Directive in their host state. But the Surinder Singh route, Zambrano and Lounes routes are explicitly not under the Directive, but derivative rights from the Treaties. Therefore, it is possible to argue that they may not be included in the Withdrawal Agreement.
Part Two, Article 12
1. Union citizens and United Kingdom nationals shall have the right to reside in the host State under the limitations and conditions as set out in Articles 21, 45 or 49 TFEU and in Article 6(1), Article 7(1)(a), (b) or (c), Article 7(3), Article 14, Article 16(1) or Article 17(1) of Directive 2004/38/EC.

2. Family members who are either Union citizens or United Kingdom nationals shall have the right to reside in the host State as set out in Article 21 TFEU and in Article 6(1), Article 7(1)(d), Article 12(1) or (3), Article 13(1), Article 14, Article 16(1) or Article 17(3) and (4) of Directive 2004/38/EC.

3. Family members who are neither Union citizens nor United Kingdom nationals shall have the right to reside in the host State as set out in Article 6(2), Article 7(2), Article 12(2) or (3), Article 13(2), Article 14, Article 16(2), Article 17(3) or (4) or Article 18 of Directive 2004/38/EC.
Again, note specifically the lack of mention of any provision for non-EEA family members with derivative rights under the Treaties, which is explicitly mentioned for EU and UK citizens themselves in Paragraphs 1 & 2. Interestingly, EEA family members have been explicitly provided for separately under Paragraph 2.

c) PR to be lost after an absence of five years rather than two, as at present.
Part Two, Article 14, Paragraph 3
Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding five consecutive years.
d) The replacement of existing documentation issued under EU law (Residence Certificate/Card, etc) will be free of charge.
Part Two, Article 17, Paragraph 1(h)
persons who, before the end of the transition period, are holders of a valid permanent residence document issued under Article 19 or 20 of Directive 2004/38/EC or a valid domestic immigration document conferring a permanent right to reside in the host State, shall have the right to exchange that document within two years of the end of the transition period for a new residence document after a verification of their identity, a criminality and security check in accordance with point (p) of this paragraph and confirmation of ongoing residence; such a document shall be free of charge;
e) The list of documents that the host state can ask for is specified in Paragraph 1(k) through to (m) of the above Article. That logically means that the UK cannot ask for any proof other than that listed in these paragraphs.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

secret.simon
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Re: EU Draft Withdrawal Agreement

Post by secret.simon » Wed Feb 28, 2018 2:42 pm

I forgot to mention about UK citizens in other EEA member-states. They will be stranded in the EEA member-state that they would be resident in at the end of the transition period. Their rights will only be against that host member-state and they will not have the right to move around within the EEA.
Prof Steve Peers On Twitter wrote:5 Commission to UK citizens in the EU27: drop dead - as far as future free movement between Member States is concerned
Image
British and other MEPs have already stated that they will attempt to have this restriction removed when the Agreement comes to the European Parliament for approval.

Crucially, he thinks that derivative rights will survive, due to the general reference to EU law as at the end of the transition period. As mentioned above, I disagree.
Prof Steve Peers On Twitter wrote:10 The general reference to EU law should mean that "Surinder Singh" cases (where UK citizens go to the EU27 with their non-EU family and then return) should be covered.
As an aside, he is worth following both on Twitter and on his excellent blog relating to EU law.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

mkhan2525
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Re: EU Draft Withdrawal Agreement

Post by mkhan2525 » Wed Feb 28, 2018 3:30 pm

secret.simon wrote:
Wed Feb 28, 2018 1:54 pm
Article 9 talks of family members who are resident under the terms of the Directive in their host state. But the Surinder Singh route, Zambrano and Lounes routes are explicitly not under the Directive, but derivative rights from the Treaties. Therefore, it is possible to argue that they may not be included in the Withdrawal Agreement.
The Agreement reached on citizens rights in December was supposed to cover rights that flow from Article 21 of the Treaty TFEU. If that is the case then it is arguble that it should cover Surinder Singh route and Lounes routes.

secret.simon
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Re: EU Draft Withdrawal Agreement

Post by secret.simon » Wed Feb 28, 2018 5:48 pm

mkhan2525 wrote:
Wed Feb 28, 2018 3:30 pm
The Agreement reached on citizens rights in December
The Agreement released by the EU today is the December Agreement in treaty format according to the EU, and once agreed to by all the parties (European Council & Parliament, and the UK) will be the treaty/Agreement that will give legal effect to the December Agreement in both the EU and the UK.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

rooibos
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Re: EU Draft Withdrawal Agreement

Post by rooibos » Thu Mar 01, 2018 8:38 am

I believe this very draft (or parts of it) was reneged on by the Honourable Prime Minister yesterday during PMQ. In other words it's just a worthless piece of paper.

mkhan2525
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Re: EU Draft Withdrawal Agreement

Post by mkhan2525 » Fri Mar 02, 2018 6:14 pm

The Home Office have now confirmed in an FOI request that Surinder Singh route families will be eligible to apply for Settled Status despite the EU Agreement reached on Citizens rights doesn't cover them.

It appears only those family members who have returned by 29 March 2019 will qualify.
Dear Sir/Madam,

Thank you for your letter of 9 February about the future rights of family members of British citizens who have previously exercised Treaty rights in another European Union (EU) Member State.

I can confirm that we have now reached an agreement with the EU on citizens’ rights that will protect those EU citizens who have been exercising free movement rights in the UK and their family members who have been living lawfully in the UK with a qualifying citizen at the time of the UK’s withdrawal from the EU, on 29 March 2019.

We have agreed with the EU that we will introduce a new settled status scheme under UK law for EU citizens and their family members covered by the Withdrawal Agreement.

The agreement we have reached with the EU makes provision for more favourable national provisions. Therefore, although not expressly covered by the agreement, it is our intention that family members of UK nationals who have exercised their free movement rights in another EU Member State before returning to the UK before exit, as per Surinder Singh case law, will be eligible for the UK’s settled status scheme.

In the meantime, if you would like to find out more about the new UK settled status and sign up for email updates, then you can do so at: https://www.gov.uk/guidance/status-of-e ... ed-to-know.


Yours sincerely


D Thomas
https://www.whatdotheyknow.com/request/ ... ng-1121104

may1975
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Re: EU Draft Withdrawal Agreement

Post by may1975 » Mon Mar 19, 2018 6:18 pm

https://www.gov.uk/government/uploads/s ... EEMENT.pdf
Does anyone have a chance to look at the latest draft agreement? It seems that you are required to have a CSI if you are a student or a self sufficient person to qualify for PR?

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