Legal Analysis of the WA text

Whilst others took a break over Easter, our legal team were hard at work analysing the detail of the text on Citizens Rights in the Withdrawal Agreement draft dated 19 March, 2018.

BiE has previously issued guidance on the elements that are of major concern to UK nationals living in the EU27 and were told that any proposal of amendments of substance would be ignored.

This feedback takes two forms:
1) Drafting comments on the agreement
2) Questions requiring answering by both sides of the negotiation.

The drafting comments form a 7-page document that can be read in full here.

The questions can be read here but are also in full below. The contents are complex but document clearly show the level of detail that is missing or unclear in draft legal agreement. Even in those areas that are supposed to be settled, the rush to publish means that mistakes have been made and items missed. British citizens living in the EU will rely upon the terms set out in these documents to continue to live and work in their host countries.

That a tiny team of pro-bono lawyers are the ones to identify these issues while both the EU and UK have, in comparison, vast budgets and resources specifically to get these documents right, is a true indication of the state of the Brexit negotiations.

For all those entering the negotiations as they move on to trade and more, we wish you luck and hope you have pro-bono lawyers as good as ours or significant funds to hire them.

(and if you appreciate the work being done by British in Europe, please donate today)Questions to be answered by the EU27 and the UK

  1. British in Europe is submitting with this document a detailed commentary on aspects of the draft Withdrawal Agreement that require clarification in the drafting of the Agreement itself and/or its recitals and/or the proposed joint explanatory memorandum. In the course of that document we raise a number of queries. In the present document we set out a number of those queries in question form, to which we require answers so that we can explain the intended effect of the Agreement fully to our member groups and other citizens directly affected by the draft Agreement. We would be grateful if both sides would supply the answers in writing within 14 days of the date of this questionnaire.
  2.  As before, all references to Articles are to articles of the Withdrawal Agreement unless otherwise stated.
  3.  Art. 8(a)(ii): the definition of “family members” excludes those persons covered by Art. 3(2) of Directive 2004/38, namely “common law” partners (including same sex partners) and family members not included in the Art 2(2) definition who are either dependent or part of the same household or in need of care by a family member within Art 2(2).
  4. Is the intention that, unless they are covered in their own right, these people should have no rights under the WA other than those conferred by Art. 9(2)-(4) and 13(1)? In particular:
    a. That they should not get the benefit of 12.4 as they are not family members?
    b. That they should be outside the change of status rules of Art 16?
    c. That they should be protected by neither Art. 20 (right to work), nor 21 (equal treatment)?
    d. That they should have no right to recognition of qualifications (Art 25)?
    e. That they should not be not covered for Social Security by Reg. 883/2004, since they are not family members for the purposes of the Agreement and therefore never come within Art 28.1.a-e?
  5. Art. 9(1)(e)(iii): Is the intention to exclude the future children of an existing couple where one parent is within Art. 9(1)(a)-(d) but the other is neither a national of the host State nor within 9(1)(a)-(d), eg because a Third Country National (“TCN”) or because an EU27/UK citizen not residing in the host State at the end of Transition?
  6.  Art. 16(1): Is the intention that family members who before the end of the transition period have a right of permanent residence, whether or not attested by a document certifying that right, should be persons covered by Art. 9(1)(a) or (b)?
  7.  Art 23(1): Article 23(1)(a) gives the right to work as self-employed or manage undertakings on the same conditions as laid down for nationals of the host state. Does this mean that if host state self employed people or undertakings can provide cross-border services to persons in other Member States from their place of establishment, including travelling to provide such services in other Member States, so can a British self-employed person/manager of undertaking, subject only to compliance with Schengen rules (in the case of Schengen countries) or other rules as to cross-border travel? What will the precise legal basis be for this?
  8. Art. 25: Is it the intention that an EU national who obtained a UK qualification which was recognised in the EU27 State where they reside and/or work at the end of the transition period (and vice-versa) should lose the benefit of that recognition? If not, how is that recognition preserved by the WA? What is the position of those in the foregoing situation who have obtained dual UK/EU27 nationality in the country in which they are now living/working?
  9. Title III: how will Title III be applied to citizens with dual UK and EU27 nationality?
  10. Art. 29: Will a person covered by the WA whose competent state is the UK but who resides in an EU27 State (and vice-versa) be able to use his/her EHIC card to obtain emergency treatment for themselves or their family whilst visiting the country of their competent institution?

British in Europe
12 April 2018

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