BREXIT WITHDRAWAL AGREEMENT.

[secret.simon]

Before Christmas, I wrote to the Brexit negotiating team at the EU Commision to confirm the status of SS and Zambrano rights after Brexit. I have received a response from them today confirming these rights will fall under dometic law after Brexit (see final paragraph).

This could also have potential implications for those relying on the Lounes case as the ruling comes under derived rights.

Dear Mr XXXXXX,

Thank you for your e-mail of 19 December 2017 concerning the rights of EU citizens in the context of Brexit.

Safeguarding the status and rights derived from EU law at the date of withdrawal of EU citizens and UK nationals is an essential objective of the ongoing negotiations with the United Kingdom.

On 15 December 2017, the European Council decided on the basis of the Joint Report that sufficient progress has been achieved in each of the three priority areas of citizens' rights, the dialogue on Ireland / Northern Ireland and the financial settlement.

You can find the Joint Report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union at http://europa.eu/rapid/press-release_IP-17-5173_en.htm.

You can find more details about the Joint Report and its impact of citizens' rights in our dedicated Questions and Answers document (available at https://ec.europa.eu/commission/sites/b ... ghts_1.pdf) and our website at https://ec.europa.eu/commission/brexit-negotiations_en.

The basic delineation of personal scope of the citizens’ rights Part of the Withdrawal Agreement is found in paragraph 10 of the Joint Report – EU citizens who in accordance with Union law legally reside in the UK, and UK nationals who in accordance with Union law legally reside in an EU27 Member State by the specified date, as well as their family members as defined by Directive 2004/38/EC (the Free Movement Directive, available at http://eur-lex.europa.eu/LexUriServ/Lex ... 616:EN:PDF) who are legally resident in the host State by the specified date, will fall within the scope of the Withdrawal Agreement.

Obtaining status under the Withdrawal Agreement will be made in accordance with the objective criteria established in the Withdrawal Agreement that will essentially mirror criteria Articles 6, 7, 12, 13 and 16 to 18 of the Free Movement Directive or primary law (Articles 21, 45 or 49 TFEU) attach to obtaining (and retaining) the right of residence under.

The Joint Report covers only EU citizens and their family members, who lawfully resided in the UK at the time of withdrawal, and UK nationals and their family members, who did so in an EU27 Member State.

Given the scope of our negotiating mandate, as outlined by the Council, the December deal covers neither UK nationals residing in the UK at the time of withdrawal pursuant to case law of the Court of Justice on returning nationals (case C-370/90 Surinder Singh) nor persons currently protected by Article 20 TFEU, such as those concerned by the ruling of the Court of Justice in case C-34/09 Ruiz Zambrano. In any event, we expect that UK citizens and their family members residing in the UK in accordance with these rules will be able to stay in the UK under the domestic laws that are currently underlying their right of residence. These domestic laws are not affected by the UK's withdrawal.

Yours sincerely,

The Task Force for the Preparation and Conduct of the Negotiations
with the United Kingdom under Article 50 TEU (IA)


cid:image001.gif@01CDAC48.DEFA49A0
European Commission
Rue de la Loi 200
B-1049 Brussels/Belgium

Fascinating information and thank you for contacting the team and contributing to the forums.

What email address did you use to contact the team?

[mkhan2525]

They can be contacted on TF50-CONTACT@ec.europa.eu

[Richard W]

...
Given the scope of our negotiating mandate, as outlined by the Council, the December deal covers neither UK nationals residing in the UK at the time of withdrawal pursuant to case law of the Court of Justice on returning nationals (case C-370/90 Surinder Singh) nor persons currently protected by Article 20 TFEU, such as those concerned by the ruling of the Court of Justice in case C-34/09 Ruiz Zambrano. In any event, we expect that UK citizens and their family members residing in the UK in accordance with these rules will be able to stay in the UK under the domestic laws that are currently underlying their right of residence. These domestic laws are not affected by the UK's withdrawal.

Yours sincerely,

The Task Force for the Preparation and Conduct of the Negotiations
with the United Kingdom under Article 50 TEU (IA)

As the only such domestic law is a statutory instrument drawn up under the law taking us into the EEC, and that does not cover the full scope of the relevant EU law, the author can only mean that the family members residing in accordance with those EU rules will be able to stay under no law! Is the author stupid or effectively a liar? It looks as though the beneficiaries of SS will have to take their case to the EUCJ after departure. They may well win.

[mkhan2525]

I think what they are essentially trying to say is that SS family members will be allowed to continue to acquire 5 years of residence and then apply for ILR paying the inflated fee.

It is understandable that they want to make setlled status exclusive to nationals of the EU 27 because it will give them extra rights such as being able bring family members after Brexit.

[Richard W]

I think what they are essentially trying to say is that SS family members will be allowed to continue to acquire 5 years of residence and then apply for ILR paying the inflated fee.

I don't believe there is any such provision in the Immigration Rules. It would currently have to be an application outside the rules.

[Graham Weifang]

We have been the users of the Settled Status entry into UK., as my wife is Non-EEA
We spent months in Germany, myself working, then we applied UK Entry Clearance, and gained entry to UK.
Very soon after, we submitted her EEA2, which was issued.
Now in October this year (2018) we will apply her EEA (PR) [new name for EEA4]
So a day after our 5 years in UK, we will apply for her EEA (PR).[ Which I think is Document Certifying Permanent Residence
]
As soon as that is issued, she will go for The Life in UK Test, then UK Passport.

Question,, How long does one expect a EEA (PR) take to be issued?

LIUKT fee is £65
Ceremoney is £80
I think the fees for Citizenship are around £1500 ?

Any corrections gladly accepted.

GW

[ribena]

Hi Graham

Assuming you met all the criteria/s, your Mrs will be applying for PR card, not Document Certifying Permanent Residence.

It takes about 6 months for PR to be issued - as per gov.uk website.

PR application - £65

Life in the UK - £50
https://www.gov.uk/life-in-the-uk-test

B1 SELT - £150
http://www.trinitycollege.com/site/?id=3220

Citizenship & Ceremony - £1282
https://www.gov.uk/becoming-a-british-citizen

Passport - £72.50

Biometric - £19.20 x 2 (once for PR and second time for citizenship)

NCS & JCAP separate fees if you are using their services - varies per council

Hope this helps.

[vinny]

Assuming you met all the criteria/s, your Mrs will be applying for PR card, not Document Certifying Permanent Residence.

Are they not the same?

[Richard W]

Assuming you met all the criteria/s, your Mrs will be applying for PR card, not Document Certifying Permanent Residence.

Are they not the same?

No. An EEA national gets a DCPR, which does not expire. A non-EEA national gets a PRC, which expires after 10 years - or in 2021, if sooner, under current plans. (Permanent residence does not expire - but is scheduled to become irrelevant.)

[vinny]

Thanks, Richard.

By “same”, I was thinking along the lines of both certifying (confirming) permanent residence and not conferring the status. But I see the differences now.

DCPR

PRC

[Obie]

I tend to agree with vinny's thinking that it is a difference with a distinction.

The fact that a PR card expires is 10years does not change things, as the rights continues to exist, which is why the directive provided it is automatically renewed.

The DCPR also lapses if the older leaves the UK for a period of 2-years, just like the DCPR.

Therefore in practical terms, there is hardly any difference and the rights are acquired and lost in exactly the same circumstances.

In any event, all documents under EU law have not right conferring power, they are merely declaratory and confirmatory in nature.

[Graham Weifang]

Hi ,

Thanks to every one who replied.
Quite a mine field is the DCPR and the PR Card

So as my wife is Non-EEA, we should be applying for her PR Card.

Then after PR Card, final part of the jigsaw, as so politely mentioned in several posts earlier, is a UK passport.

So after the LIUK test, English test, Bio's, ceremony etc, she can apply passport.

So eventually when passport is in hand, is there still a restriction that she can not be out of UK for 2 years, otherwise will lose it all?

GW

[Graham Weifang]

Hi all,

Another question, sorry.

My wife's Chinese passport expired in November.
She got her new Chinese passport in October, a month before the old one expired.
Her UK Entry Clearance Visa is in her old passport.
Her Residence Certificate is in her old passport.

Are we OK to go to Spain on a week holiday, by taking both of her passports with us ?

Or does she need transfer (don't know how) the vignettes into her new passport.

GW

[kabuki]

Hi everyone. We are trying to decide when to apply for PR. My wife is EEA and I'm not. We've been here for 7.5 years, but I couldn't apply at 5 years as we could find certain docs to confirm 5 years of treaty rights, so we had to collect another 5 years. We are now there. We were wondering with Brexit if it's worth applying now or waiting for negotiations to be completed. If we pay now and both get PR (I know there is technically a difference in the docs issued), would we be made to pay again to transfer to a new PR doc post Brexit?

Additionally, we have an 8 month old who is a dual national (Dutch/US) and we'll want to have his rights confirmed. He was born in May and we have docs that only confirm 5 years of accessing treaty rights as of the end of Dec. Could we still apply for a British passport for him or a PR doc?

Thanks for your help!!!

[mkhan2525]

Interestingly on 25 January 2018, the EU Rights Clinic with 60 signatories have called on the EU Commission to protect Derived Rights of Residence such as Surinder Singh and Zambrano in the next phase of negotiations.

They raise an interesting point that EU citizens living in the UK after Brexit will no longer be able to invoke SS rights when they return to their home country with their third country national family members as the UK will no longer be an EU Member State. This may be an incentive for the Commission to include SS rights in the withdrawal agreement.

You can read the full letter here:

EU Rights Clinic Calls for Further Protections of Citizens’ Rights in Phase 2 of Brexit Negotiations

[Richard W]

Additionally, we have an 8 month old who is a dual national (Dutch/US) and we'll want to have his rights confirmed. He was born in May and we have docs that only confirm 5 years of accessing treaty rights as of the end of Dec. Could we still apply for a British passport for him or a PR doc?

No. I am assuming he was born in the UK. At his age he could only have PR if a sponsor had come to the end of his/her working life. He would only be British if his mother (or you) had attained PR when he was born, or one of you had most recently entered the UK from the Republic of Ireland. You could apply to register him as British. However, double check that he will not forfeit Dutch nationality by acquiring British nationality after birth. The English Wikipedia says he'd be OK, but I don't think Dutch law is stable enough to be able to trust Wikipedia.

[kabuki]

No. I am assuming he was born in the UK. At his age he could only have PR if a sponsor had come to the end of his/her working life. He would only be British if his mother (or you) had attained PR when he was born, or one of you had most recently entered the UK from the Republic of Ireland. You could apply to register him as British. However, double check that he will not forfeit Dutch nationality by acquiring British nationality after birth. The English Wikipedia says he'd be OK, but I don't think Dutch law is stable enough to be able to trust Wikipedia.

Thank you. Too much uncertainty at these times. Debating whether I should apply for PR and then citizenship myself. At least then we'd have UK law to keep my family together.

Where is there info on this? - "one of you had most recently entered the UK from the Republic of Ireland". My wife (Dutch) lived in Ireland for 12+ years, but she never took up Irish citizenship. We both lived there together before moving to England.

[secret.simon]

Before Christmas, I wrote to the Brexit negotiating team at the EU Commision to confirm the status of SS and Zambrano rights after Brexit. I have received a response from them today confirming these rights will fall under dometic law after Brexit (see final paragraph).

This could also have potential implications for those relying on the Lounes case as the ruling comes under derived rights.

Today's tweet by the European Commission seems to confirm that treaty derivative rights (SS, Zambrano and Lounes) may not apply in the transition period. That is, they may well cease to apply from 29th March 2019.

Mandate received to begin negotiations with the UK on transitional arrangements:
No "cherry picking"
Existing EU regulatory instruments to apply
No representation in EU institutions/bodies
Transition period to be clearly defined
#Brexit → http://europa.eu/!qP78Dk

Note that EU regulatory instruments will apply. So, Directive 2004/38/EC should continue to apply. But, even in the transition period, the UK will have left the EU and the EU Treaties (and therefore the routes reliant on the Treaties) would logically no longer apply. Therefore the SS, Zambrano and Lounes routes would shut on that date.

[mkhan2525]

Before Christmas, I wrote to the Brexit negotiating team at the EU Commision to confirm the status of SS and Zambrano rights after Brexit. I have received a response from them today confirming these rights will fall under dometic law after Brexit (see final paragraph).

This could also have potential implications for those relying on the Lounes case as the ruling comes under derived rights.

Today's tweet by the European Commission seems to confirm that treaty derivative rights (SS, Zambrano and Lounes) may not apply in the transition period. That is, they may well cease to apply from 29th March 2019.

Mandate received to begin negotiations with the UK on transitional arrangements:
No "cherry picking"
Existing EU regulatory instruments to apply
No representation in EU institutions/bodies
Transition period to be clearly defined
#Brexit → http://europa.eu/!qP78Dk

Note that EU regulatory instruments will apply. So, Directive 2004/38/EC should continue to apply. But, even in the transition period, the UK will have left the EU and the EU Treaties (and therefore the routes reliant on the Treaties) would logically no longer apply. Therefore the SS, Zambrano and Lounes routes would shut on that date.

This is factually incorrect because we will be moving to a Norway style transition. As long as the UK is still part of the Single Market then SS and Loumes routes will continue to apply.

The EU Commission has stated EU laws will apply during the transisition as though the UK is still a Member State.

There may be implications for the Zambrano route as I believe that relies soley on EU Citizenship and not the Citizens Directive.

[secret.simon]

This is factually incorrect because we will be moving to a Norway style transition.

Note that the tweet mentioned "regulatory instruments" and not laws or legal instruments, etc. I am therefore of the view that the EU is looking at a narrower agreement than is widely expected.

The devil is of course in the details. I think that journalists and people are using the term "Norway-style" very loosely and lazily. It will need to be seen how much of it is written into the Withdrawal Agreement. It seems to me that the starting point of the EU Commission is to focus on the regulatory side of things and that may exclude treaty based rights from automatically getting transposed.

I doubt we will be in the Single Market as it is understood at the moment. There is every indication that it will be "like" the Single Market (or Single Market lite), but I doubt it would replicate it exactly.

[Obie]

It will be odd if the EU says on one hand says there is no cherry picking on the four freedoms in the Treaty and then limit its application to the UK.

It will be completely contradictory.

[Richard W]

Where is there info on this? - "one of you had most recently entered the UK from the Republic of Ireland". My wife (Dutch) lived in Ireland for 12+ years, but she never took up Irish citizenship. We both lived there together before moving to England.

The law seems not to be well understood. The most relevant piece of law is Article 4(1) of The Immigration (Control of Entry through Republic of Ireland) Order 1972. This is what enabled Irishmen to be treated as settled as soon as they took up residence in the UK, whereas Australians, who are also not foreigners, were not so treated, unless they had right of abode (= patriality at the time). The Immigration (Control of Entry through Republic of Ireland) (Amendment) Order 2014, which came into force on 12 October 2014, extended, in its Article 6, the beneficiaries from those who were "a citizen of the Republic of Ireland" to those who were "an EEA national, or a person who is entitled to enter or remain in the United Kingdom by virtue of an enforceable EU right or any provision made under section 2(2) of the European Communities Act 1972”. The original article is why there is such a peculiar concept as a "qualifying CTA entitlement" in the definition now in the British Nationality Act 1981 of who is not in breach of the immigration laws. I found it amusing to read Hansard on the matter, e.g. at https://publications.parliament.uk/pa/l ... 2-0004.htm. You two don't qualify for a "qualifying CTA entitlement", as that is still restricted to Irish citizens, but you avoid being in breach of the immigration laws by your enforceable EU rights.

Entry before 12 October 2014 wouldn't count.

However, remember that naturalisation is at discretion - you could probably be refused on the basis that you were cheating. However, your son's legal position would not be subject to discretion - he either is or is not a British citizen. Note that if you are a visa national, you are probably excluded by Article 3(b)(i).

[kabuki]

The law seems not to be well understood. The most relevant piece of law is Article 4(1) of The Immigration (Control of Entry through Republic of Ireland) Order 1972. This is what enabled Irishmen to be treated as settled as soon as they took up residence in the UK, whereas Australians, who are also not foreigners, were not so treated, unless they had right of abode (= patriality at the time). The Immigration (Control of Entry through Republic of Ireland) (Amendment) Order 2014, which came into force on 12 October 2014, extended, in its Article 6, the beneficiaries from those who were "a citizen of the Republic of Ireland" to those who were "an EEA national, or a person who is entitled to enter or remain in the United Kingdom by virtue of an enforceable EU right or any provision made under section 2(2) of the European Communities Act 1972”. The original article is why there is such a peculiar concept as a "qualifying CTA entitlement" in the definition now in the British Nationality Act 1981 of who is not in breach of the immigration laws. I found it amusing to read Hansard on the matter, e.g. at https://publications.parliament.uk/pa/l ... 2-0004.htm. You two don't qualify for a "qualifying CTA entitlement", as that is still restricted to Irish citizens, but you avoid being in breach of the immigration laws by your enforceable EU rights.

Entry before 12 October 2014 wouldn't count.

However, remember that naturalisation is at discretion - you could probably be refused on the basis that you were cheating. However, your son's legal position would not be subject to discretion - he either is or is not a British citizen. Note that if you are a visa national, you are probably excluded by Article 3(b)(i).

That's interesting. Shame she didn't apply for Irish nationality. She qualified to retain her Dutch nationality because she lived in Ireland from a young age and completed the majority of her education there. However, we had to move because of the lack of job opportunities with progression. Anyway, we are here un EU regulation and I have a RC, so we are above board and have been. I entered with an EEA family permit and got my RC twice now. Thanks for the info. I know someone who may benefit from this.

I'll be keeping an eye on this thread as it's been the most useful info I've found so far in regards to what's happening with Brexit.

[Graham Weifang]

Hi all,

Another question, sorry.

My wife's Chinese passport expired in November.
She got her new Chinese passport in October, a month before the old one expired.
Her UK Entry Clearance Visa is in her old passport.
Her Residence Certificate is in her old passport.

Are we OK to go to Spain on a week holiday, by taking both of her passports with us ?

Or does she need transfer (don't know how) the vignettes into her new passport.

GW

I have heard that my wife needs to take both her expired one with the residence stuff, and her new one.

GW

[ribena]

That's correct. Take both passport, with the valid RC in the old passport and the new passport. There is no need to transfer vignette. I travelled in the same manner for a few years. Never had a problem at border control.