In order for the United Kingdom (UK) to avoid a ‘hard’ Brexit, an interim agreement addressing, amongst other issues, the legal status of UK nationals living in other European Union (EU) countries as well as that of EU citizens living in the UK is required. The agreement must come into effect by 30 March 2019 unless the European Council, in agreement with the UK, unanimously agrees to extend this deadline in accordance with Article 50, paragraph 3 of the Treaty on European Union. Otherwise, all agreements pertaining to the Union and to the treaty establishing the European Atomic Energy Community will no longer have effect for the UK as of midnight (Brussels time) on 29 March 2019. After this deadline, the United Kingdom will be considered a third country, i.e. a non-member country. All agreements pertaining to overseas countries and territories that have special relations with the UK and to the European territories whose foreign affairs are overseen by the UK, and to which the agreements apply under Article 355 of the Treaty on the Functioning of the European Union, will no longer have effect.
In accordance with the European Council guidelines of 29 April 2017, an interim agreement for the UK’s withdrawal from the EU must also include comprehensive rules regarding the legal status of European citizens who reside in the UK and in other member states. The proposed agreement negotiated between the EU and the UK became known as the Draft Agreement on the Withdrawal of the United Kingdom from the European Union of 14 November 2018. This Agreement establishes a transition phase ending on 31 December 2020, as set out in Article 126. Moreover, Article 127 of the Withdrawal Agreement stipulates that EU law will still apply during the transition phase unless otherwise specified in the Agreement.
The rights of citizens are addressed in part two of the Withdrawal Agreement, which gives a strict definition of the European citizens and their family members who are entitled to rights of residence. For this reason, the extent to which these citizens and their family members qualify for residency rights must always be determined by whether the Agreement applies to them. Under no circumstances should the rules granting residency rights in Articles 13 et seqq. of the Agreement be understood to apply to every European citizen or every family member.
The persons to whom this Agreement applies are specified in Article 10 (‘Personal Scope’). This rule includes EU citizens who have already exercised their right of residence in the UK in accordance with EU law before the transition phase ends and who intend to remain in the UK. Conversely, UK nationals who exercise free movement rights prior to 31 December 2020 and intend to remain in another EU country are also addressed in the Agreement. Thus, the Withdrawal Agreement only benefits EU citizens who exercise their free movement rights before 31 December 2020. For this reason, once the transition phase ends, neither EU citizens in the UK nor UK nationals in other EU countries will have any rights of residence under the Agreement as it does not contain any specific rules to this effect. Cross-border workers are given corresponding rights. The arrangement is particularly important given the situation at the UK’s border with Ireland.
A family member’s ancillary right of residence is tied to the EU citizen to whom the Agreement applies; the term ‘family members’ is clearly defined in Article 9 of the Agreement in conjunction with Article 2 of the Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states (Free Movement Directive). Family members of EU citizens and UK nationals have a right to reside in the UK and in other EU countries respectively if they meet certain requirements:
- They live with a person entitled to free movement in the host country before the transition period ends in accordance with EU law and they want to continue to reside there.
- They do not live with an EU citizen entitled to free movement before the end of the transition phase but they fulfil the requirements for family members who can subsequently join their family member in another EU country as specified in Article 2, Number 2 of the Free Movement Directive, particularly with respect to the criterion of ‘guaranteeing financial support’.
- They are a family member of an EU citizen who is entitled to freedom of movement and resides in the UK or in another member state before the transition phase ends and they were born or were legally adopted within or outside the host country after the transition phase ends. Additionally, they must meet the conditions specified in Article 2, Number 2, Letter c) of the Free Movement Directive at the point in time that their residence matter is being decided and must fulfil one of the following conditions:
- Both parents exercised their freedom of movement in the UK or in another member state before the end of the transition phase.
- One of the parents exercised their freedom of movement in the UK or in another member state before the end of the transition phase and the other parent is a citizen of the host country (Article 9, Letter c) of the Withdrawal Agreement).
- One of the parents exercised their freedom of movement in the UK or in another member state before the end of the transition phase and (s)he has sole or joint custody of the child under the applicable family laws of a member state or the United Kingdom.
The same rules apply to cross-border workers that apply to family members’ right of residence. Moreover, family members who have obtained an independent right to reside in the host country or a right of permanent residence in the UK or in another member state are conceded the continuation of their right of residence under Article 10, Paragraph 1, Letter f) of the Agreement if they reside in the UK or in another member state before the end of the transition phase and they intend to continue to reside in the country.
Relatives other than family members within the meaning of Article 2, Number 2 of the Free Movement Directive can be granted rights of residence if they fall under Article 3, Paragraph 2 of the Free Movement Directive. This rule is problematic, especially in Germany, which has not implemented the rights from Article 3, Paragraph 2 of the Free Movement Directive. In spite of the federal government’s infringement being well publicised following enquiries by the leftist parliamentary party ‘Die Linke’, the EU Commission has not initiated any proceedings against Germany to address this issue.
Article 13 of the Withdrawal Agreement forms the legal basis for the right of residence in the United Kingdom of EU citizens entitled to free movement and of UK nationals residing in other EU countries who qualify under the rules specified in Article 10.
- “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), points (a), (b) or (c) of Article 7(1), Article 7(3), Article 14, Article 16(1) or Article 17(1) of Directive 2004/38/EC (Free Movement Directive).
- 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), point (d) of Article 7(1), Article 12(1) or (3), Article 13(1), Article 14, Article 16(1) or Article 17(3) and (4) of Directive 2004/38/EC (Free Movement Directive), subject to the limitations and conditions set out in those provisions.
- Family members who are neither Union citizens nor United Kingdom nationals shall have the right to reside in the host State under Article 21 TFEU and 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 (Free Movement Directive), subject to the limitations and conditions set out in those provisions.
- The host State may not impose any limitations or conditions for obtaining, retaining or losing residence rights on the persons referred to in paragraphs 1, 2 and 3, other than those provided for in this Title. There shall be no discretion in applying the limitations and conditions provided for in this Title, other than in favour of the person concerned.”
Even if the right of residence (as defined in Article 13 of the Agreement) bestows the right to enter and leave a country without observing its visa requirements (see Article 14), the legal status of UK citizens in other EU countries and of EU citizens who want to reside in the UK will change permanently, because the continuation of the right to free movement does not give the beneficiaries of this right the equivalent status to EU citizens. Therefore, citizens of the UK and their family members will no longer fall within the scope of the German Freedom of Movement Act/EU, since Section 1 says that only EU citizens and their family members, even they are third country nationals, can exercise a right to free movement within Germany.
Unless German legislators create a legal arrangement like the one for the citizens of the European Economic Area, UK nationals will be treated in a similar manner to citizens of Switzerland with respect to their right of residence. The immigration authorities will have to verify their situation on two levels. They will have to determine if:
- The UK national and the family member are persons to whom the Withdrawal Agreement applies.
- They enjoy the rights of a person who is entitled to free movement under the rules set out in the TFEU and the Free Movement Directive.
The right of residence for citizens of the United Kingdom and their family members still needs to be clarified in more detail, as does the right to citizenship, which will also be directly influenced by Brexit. This is because dual citizenship for EU citizens is a privilege which is dependent on their country of origin’s membership of the EU. Once the Brexit deadline passes, the United Kingdom will no longer be an EU member state. According to the Withdrawal Agreement, after Brexit there is supposed to be a transition phase until the end of 2020 during which the UK will remain a part of the single market and customs union, but its citizens will no longer be considered EU citizens according to the above-mentioned requirements.
Under German citizenship law, foreigners normally have to give up their previous citizenship if they want to become a German citizen. This is to prevent people from having several citizenships or being a dual citizen. However, there is an exception for citizens of EU member states and Switzerland because legislators wanted to make it easier for them to become German citizens, thus facilitating European integration.
British citizens have been able to obtain German citizenship if they have resided in Germany for at least six to eight years. Given the fast approaching Brexit deadline, the days of having this privilege of dual citizenship are almost over for UK citizens.
Unfortunately, as things currently stand, it looks as though the Withdrawal Agreement may not come into effect: the British parliament rejected the transition agreement on 16 January 2019, making a ‘hard’ Brexit more likely than ever. Without some type of a renegotiated withdrawal agreement or an official extension of the impending March 2019 deadline, the future legal status of EU citizens in the UK and UK citizens in EU member states will fall under the discretion of the individual member states. On 21 January 2019, the UK government published its guidelines for addressing the legal status of EU citizens residing in the UK in what they call the EU settlement scheme. Under this scheme, the UK government requires EU citizens who want to stay in the UK after 30 June 2021 to apply for special settled and pre-settled status. More information about the EU settlement scheme is available at this link: https://www.gov.uk/government/collections/eu-settlement-scheme-applicant-information.
Given the increasing likelihood that the UK may leave the EU without a Withdrawal Agreement, European countries, such as France, Malta and Spain, have taken steps to address the legal status of UK nationals living within their borders and are encouraging UK nationals to formalise their residency status (source: https://www.blevinsfranks.com/news/article/EU-France-Portugal-Spain-Malta-no-deal-brexit-plans-reassure-expatriates). The German government has also set up contingency plans, which include a preliminary 3 month transition period, in which UK nationals can continue to live and work in Germany without formally applying for a permanent residence permit (source: https://www.bmi.bund.de/SharedDocs/faqs/DE/themen/migration/brexit/faqs-brexit.html).
Translated from German into English by Rosa Foyle