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Assessing the Impact of the Brexit Withdrawal Agreement on European and British Citizens’ Rights

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Assessing the Impact of the Brexit Withdrawal Agreement on European and British Citizens’ Rights Department of Political Science Chair of European Union Law Assessing the impact of the Brexit Withdrawal Agreement on European and British citizens’ rights Andrea Gradi Prof. Robert Schütze ID no. 085232 __________________________ __________________________ SUPERVISOR CANDIDATE Academic Year 2019/2020 To those who have been by my side during this journey. And to those who wanted to, but couldn’t be there. Table of Contents List of abbreviations ..................................................................................................................................... i 1. Introduction ........................................................................................................................................ 1 2. The current situation: rights as usual? ............................................................................................... 3 2.1. Two qualifications .............................................................................................................................. 3 2.2. Citizens’ rights under Union law ........................................................................................................ 5 2.2.1. Mobility and residence rights ......................................................................................................... 6 2.2.2. Other citizenship rights ................................................................................................................ 26 2.2.3. Beyond citizenship: social rights .................................................................................................. 30 3. Rights under the Withdrawal Agreement: what changes? ............................................................... 37 3.1. Introduction: the Withdrawal Agreement and its structure .............................................................. 37 3.2. Citizens’ rights under the Agreement: Part Two WA ........................................................................ 40 3.2.1. Residence rights ........................................................................................................................... 45 3.2.2. Workers’ and self-employed rights .............................................................................................. 59 3.2.3. Coordination of social security systems ....................................................................................... 63 3.3. Looking at the institutions: governance, oversight and dispute settlement ....................................... 66 4. Conclusion: what’s in for the future? ............................................................................................... 74 Bibliography .............................................................................................................................................. 80 Table of cases ............................................................................................................................................. 85 Table of legislation ..................................................................................................................................... 89 List of abbreviations AFSJ Area of Freedom, Security and Justice CD Citizenship Directive CFREU Charter of Fundamental Rights of the European Union CJEU Court of Justice of the European Union DA Draft Agreement on the New Partnership with the United Kingdom EEA European Economic Area EC (Maastricht) Treaty Establishing the European Community, as amended in Maastricht EP European Parliament ETD Equal Treatment Directive EU European Union EU27 European Union (excluding the United Kingdom) EU28 European Union (including the United Kingdom) EUWA European Union (Withdrawal) Act MEP(s) Member(s) of the European Parliament OJ Official Journal of the European Union PCA Permanent Court of Arbitration PQRD Professional Qualifications Recognition Directive TCN(s) Third-Country National(s) TEU Treaty on the European Union TFEU Treaty on the Functioning of the European Union WA Withdrawal Agreement UK United Kingdom i 1. Introduction On 23rd January 2020, the UK Parliament finally voted in favour of the Agreement negotiated over the course of the last three years in order to ensure the orderly withdrawal of the United Kingdom from the European Union after the 2016 Brexit referendum. While the UK has effectively left the Union on 31st January 2020, the Withdrawal Agreement is yet to enter into force in its entirety, as it will only do so after a transitional period which will end on 31st December 2020. The fact that the Brexit process would have, at least potentially, affected in some way the enjoyment of rights already acquired under EU law by both UK and EU citizens has been clear since the outset of the negotiations. With this in mind, “agreeing reciprocal guarantees to safeguard the status and rights derived from EU law at the date of withdrawal of EU and UK citizens, and their families, affected by the United Kingdom's withdrawal from the Union”1 was recognized in the European Council guidelines of 29th April 2017 as the “first priority” of the European Union for the upcoming negotiations; similarly, the United Kingdom stressed from the beginning the necessity to provide “certainty and clarity”2 for everyone, and the UK notification of withdrawal underlined the importance for both the UK and the EU to “always put [their] citizens first”, in order to “aim to strike an early agreement about their rights”.3 Following these statements, which referred mainly to the mobility and residence rights attached to EU citizenship and to worker/self-employed status, the EU and the UK took an approach during Phase 1 of the negotiations which seemingly aimed at “freezing” the current situation existing under EU law, guaranteeing that rights already acquired by both EU and UK nationals at the end of the transition period are maintained. While this may seem pretty straightforward at first glance, academics have pointed out how specific categories of situations may enjoy less certainty than one would expect from these premises; in a similar fashion, questions and doubts remained on how the agreement reached on citizens’ rights will be concretely implemented, and an even larger set of questions remains open on mobility and the acquisition of residence rights after 31st December 2020 under the prospective future mobility 1 European Council, “European Council (Art. 50) Guidelines (29 April 2017)”, EUCO XT 20004/17, 2017. 2 Theresa May, “The Government's Negotiating Objectives For Exiting The EU: PM Speech”, GOV.UK, 2020, https://www.gov.uk/government/speeches/the-governments-negotiating-objectives-for-exiting-the-eu-pm- speech. 3 Theresa May, “Prime Minister’s letter to Donald Tusk triggering Article 50”, GOV.UK, 2017, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/604079/Prime _Ministers_letter_to_European_Council_President_Donald_Tusk.pdf. 1 framework, which is yet to be agreed upon in the broader context of the negotiations of the future relations between the EU and the UK. For this reason, this dissertation aims at providing an analysis of how the rights of EU and UK citizens will be impacted by the Brexit process and by the concluded Agreement in particular. Proceeding in a chronological fashion, the discussion will begin with a chapter surveying the rights currently enjoyed4 by EU citizens and UK nationals under EU law – mostly rights related to mobility and residence –, in order to provide a starting point of reference for the subsequent analysis. The following chapter will then proceed to analyse how the situation will change under the Withdrawal Agreement after the end of the transition period – which rights will be maintained and which ones will be lost, and under which, if any, conditions. This second chapter will also attempt to highlight some new challenges which citizens will face after Brexit is concluded and their implications, such as the need for Union citizens in the UK to register for residence. The conclusion will assess the scope of protection granted to the rights mentioned above, including the potential future of rights which are not directly protected by the Agreement, and it will touch the issue of the possible future arrangements for mobility and residence in the context of the future EU-UK relations, also looking at the draft text of the Agreement on the New Partnership which is currently being negotiated between the UK and the EU, to try to envision the future shape of the relationship between the two in the field of rights for their citizens. 4 As it will be clarified in the next section, at the time of writing EU law still applies to the United Kingdom until 31st December 2020. 2 2. The current situation: rights as usual? A very brief statement to start describing the current situation can be that “in general terms, nothing changes until 2020”.5 In fact, Part Four of the Withdrawal Agreement (hereafter WA) establishes a transition or implementation period (reflecting the terminologies preferred, respectively, by the EU and the UK) starting from the date of entry into force of the Agreement (1st February 2020) and ending on 31st December 2020.6 During this period, Union law will apply to the UK as usual “unless otherwise provided”,7 providing the EU and the UK with eleven months to prepare for the definitive exit of the United Kingdom from the Union. This period of transition is not only limited to the legal effects produced by Union law in the UK, but also to the whole
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