Citizens Rights Post-Transition (Nov 2018)

by
Withdrawal Agreement

CITIZENS’ RIGHTS

GENERAL PROVISIONS

Definitions

For the purposes of these provisions, the following definitions shall apply:

“family members” means the following persons, irrespective of their nationality, who fall within the personal scope provided for in Article 10 of the Agreement:

  • family members of European Union citizens or family members of United Kingdom nationals as defined in the Citizenship Directive;
  • certain other persons whose presence is required by European Union citizens or United Kingdom nationals in order not to deprive those European Union citizens or United Kingdom nationals of a right of residence granted by these provisions;

“frontier workers” means European Union citizens or United Kingdom nationals who pursue an economic activity under the EU Treaties in one or more States in which they do not reside;

“host State” means:

  • in respect of European Union citizens and their family members, the United Kingdom, if they exercised their right of residence there in accordance with EU law before the end of the transition period and continue to reside there thereafter;
  • in respect of United Kingdom nationals and their family members, the Member State in which they exercised their right of residence in accordance with EU law before the end of the transition period and in which they continue to reside thereafter;

“State of work” means:

  • in respect of European Union citizens, the United Kingdom, if they pursued an economic activity as frontier workers there before the end of the transition period and continue to do so thereafter;
  • in respect of United Kingdom nationals, a Member State in which they pursued an economic activity as frontier workers before the end of the transition period and in which they continue to do so thereafter;

Personal scope I

These provisions shall apply to the following persons:

  • European Union citizens who exercised their right to reside in the United Kingdom in accordance with EU law before the end of the transition period and continue to reside there thereafter;
  • United Kingdom nationals who exercised their right to reside in a Member State in accordance with EU law before the end of the transition period and continue to reside there thereafter;
  • European Union citizens who exercised their right as frontier workers in the United Kingdom in accordance with EU law before the end of the transition period and continue to do so thereafter;
  • United Kingdom nationals who exercised their right as frontier workers in one or more Member States in accordance with EU law before the end of the transition period and continue to do so thereafter;

The provisions also apply to family members of the above categories of person, provided that they fulfil one of the following conditions:

  • they resided in the host State in accordance with EU law before the end of the transition period and continue to reside there thereafter;
  • they were directly related to a person in the above and resided outside the host State before the end of the transition period, provided that they fulfil the conditions set out in the Citizenship Directive at the time they seek residence under these provisions in order to join those persons;
  • they were born to, or legally adopted by, persons in the above categories after the end of the transition period, whether inside or outside the host State, and fulfil the conditions set out in the Citizenship Directive at the time they seek residence under these provisions in order to join the person in the above categories and fulfil one of the following conditions:
    • both parents are persons in the above categories;
    • one parent is a person in the above categories and the other is a national of the host State; or
    • one parent is a person in the above categories and has sole or joint rights of custody of the child, in accordance with the applicable rules of family law of a Member State or of the United Kingdom, including applicable rules of private international law under which rights of custody established under the law of a third State are recognised in the Member State or in the United Kingdom, in particular as regards the best interests of the child, and without prejudice to the normal operation of such applicable rules of private international law;
  • family members who resided in the host State in accordance with the Citizenship Directive before the end of the transition period and continue to reside there thereafter.

Personal scope II

Other family members qualifying as dependents or carers of qualifying persons whose residence was facilitated by the host State in accordance with its national legislation before the end of the transition period shall retain their right of residence in the host State in accordance with these provisions, provided that they continue to reside in the host State thereafter. This  shall also apply to such persons who have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter.

Without affecting any right to residence which the persons concerned may have in their own right, the host State shall, in accordance with its national legislation, facilitate entry and residence for the partner with whom the person referred in the above categories has a durable relationship, duly attested, where that partner resided outside the host State before the end of the transition period, provided that the relationship was durable before the end of the transition period and continues at the time the partner seeks residence under these provisions.

In the last two types of case, the host State shall undertake an extensive examination of the personal circumstances of the persons concerned and shall justify any denial of entry or residence to such persons.

Continuity of residence

Continuity of residence for the above purposes shall not be affected by absences as referred to below.

The right of permanent residence acquired under the Citizens Directive before the end of the transition period shall not be treated as lost through absence from the host State for a period specified below (5 years)

Non-discrimination

Within the scope of these provisions,  any discrimination on grounds of shall be prohibited in the host State and the State of work in respect of the persons qualifying  and protected above.

RIGHTS AND OBLIGATIONS

RIGHTS RELATED TO RESIDENCE, RESIDENCE DOCUMENTS

Residence rights

European 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 the EU Treaties and the Citizenship Directive

Family members who are either European Union citizens or United Kingdom nationals shall also have the right to reside in the host State under the limitations and conditions as set out in the EU Treaties and the Citizenship Directive

Family members who are neither European Union citizens nor United Kingdom nationals shall have the right to reside in the host State under the limitations and conditions as set out in the EU Treaties and the Citizenship 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 those persons  other than those provided for in these provisions. There shall be no discretion in applying the limitations and conditions provided for in these provisions, other than in favour of the person concerned.

Right of exit and of entry

European Union citizens and United Kingdom nationals, their respective family members, and other persons, who reside in the territory of the host State in accordance with the conditions set out in these provisions shall have the right to leave the host State and the right to enter it, as set out in the Citizenship Directive, with a valid passport or national identity card in the case of European Union citizens and United Kingdom nationals, and with a valid passport in the case of their respective family members and other persons who are not European Union citizens or United Kingdom nationals.

Five years after the end of the transition period, the host State may decide no longer to accept national identity cards for the purposes of entry to or exit from its territory if such cards do not include a chip that complies with the applicable International Civil Aviation Organisation standards related to biometric identification.

No exit visa, entry visa or equivalent formality shall be required of holders of a valid document issued under the Withdrawal Agreement.

Where the host State requires family members who join the European Union citizen or United Kingdom national after the end of the transition period to have an entry visa, the host State shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible, and on the basis of an accelerated procedure.

Right of permanent residence

European Union citizens and United Kingdom nationals, and their respective family members, who have resided legally in the host State in accordance with EU law for a continuous period of 5 years (and certain others who have less than 5 years residence as provided under the Citizenship  Directive), shall have the right to reside permanently in the host State under the conditions set out in Citizenship Directive

Periods of legal residence or work in accordance with EU law before and after the end of the transition period shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.

Continuity of residence for the purposes of acquisition of the right of permanent residence shall be determined in accordance the Directive. Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding 5 consecutive years.

Accumulation of periods

European Union citizens and United Kingdom nationals, and their respective family members, who before the end of the transition period resided legally in the host State in accordance with the conditions in the Citizenship Directive for a period of less than 5 years, shall have the right to acquire the right to reside permanently under the conditions set out in the Withdrawal Agreement once they have completed the necessary periods of residence. Periods of legal residence or work in accordance with EU law before and after the end of the transition period shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.

Status and changes

The right of European Union citizens and United Kingdom nationals, and their respective family members, to rely directly on these provisions shall not be affected when they change status, for example between student, worker, self-employed person and economically inactive person. Persons who, at the end of the transition period, enjoy a right of residence in their capacity as family members of European Union citizens or United Kingdom nationals, cannot become persons in first mentioned principal four categories mentioned above.

The rights provided for in these provisions for the family members who are dependants of European Union citizens or United Kingdom nationals before the end of the transition period,

Issuance of residence documents I

The host State may require European Union citizens or United Kingdom nationals, their respective family members and other persons, who reside in its territory in accordance with the conditions set out in these provisions, to apply for a new residence status which confers the rights under these provisions and a document evidencing such status which may be in a digital form.

Applying for such a residence status shall be subject to the following conditions:

  • the purpose of the application procedure shall be to verify whether the applicant is entitled to the residence rights set out in these provisions. Where that is the case, the applicant shall have a right to be granted the residence status and the document evidencing that status;
  • the deadline for submitting the application shall not be less than 6 months from the end of the transition period, for persons residing in the host State before the end of the transition period.
  • For persons who have the right to commence residence after the end of the transition period in the host State in accordance with these provisions, the deadline for submitting the application shall be 3 months after their arrival or the expiry of the deadline referred to in the first subparagraph, whichever is later.
  • A certificate of application for the residence status shall be issued immediately;
  • the deadline for submitting the application referred to in point (b) shall be extended automatically by 1 year where the European Union has notified the United Kingdom, or the United Kingdom has notified the European Union, that technical problems prevent the host State either from registering the application or from issuing the certificate of application. The host State shall publish that notification and shall provide appropriate public information for the persons concerned in good time;
  • where the deadline for submitting the application is not respected by the persons concerned, the competent authorities shall assess all the circumstances and reasons for not respecting the deadline and shall allow those persons to submit an application within a reasonable further period of time if there are reasonable grounds for the failure to respect the deadline;
  • the host State shall ensure that any administrative procedures for applications are smooth, transparent and simple, and that any unnecessary administrative burdens are avoided;
  • application forms shall be short, simple, user friendly and adapted to the context of the Agreement; applications made by families at the same time shall be considered together;
  • the document evidencing the status shall be issued free of charge or for a charge not exceeding that imposed on citizens or nationals of the host State for the issuing of similar documents;
  • persons who, before the end of the transition period, hold a valid permanent residence document issued under the Citizenship Directive or hold a valid domestic immigration document conferring a permanent right to reside in the host State, shall have the right to exchange that document within the period referred to above for a new residence document upon application after a verification of their identity, a criminality and security check in accordance with the below provision and confirmation of their ongoing residence; such new residence documents shall be issued free of charge;
  • the identity of the applicants shall be verified through the presentation of a valid passport or national identity card for European Union citizens and United Kingdom nationals, and through the presentation of a valid passport for their respective family members and other persons who are not European Union citizens or United Kingdom nationals; the acceptance of such identity documents shall not be made conditional upon any criteria other than that of the validity of the document. Where the identity document is retained by the competent authorities of the host State while the application is pending, the host State shall return that document upon application without delay, before the decision on the application has been taken;
  • supporting documents other than identity documents, such as civil status documents, may be submitted in copy. Originals of supporting documents may be required only in specific cases where there is a reasonable doubt as to the authenticity of the supporting documents submitted;
  • the host State may only require European Union citizens and United Kingdom nationals to present, in addition to the identity documents referred to below, the following supporting documents:
    • where they reside in the host State as workers or self-employed, a confirmation of engagement from the employer or a certificate of employment, or proof that they are self-employed;
    • where they reside in the host State as economically inactive persons, evidence that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host State during their period of residence and that they have comprehensive sickness insurance cover in the host State; or
    • where they reside in the host State as students, proof of enrolment at an establishment accredited or financed by the host State on the basis of its legislation or administrative practice, proof of comprehensive sickness insurance cover, and a declaration or equivalent means of proof, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host State during their period of residence. The host State may not require such declarations to refer to any specific amount of resources.
    • With regard to the condition of sufficient resources, the Citizenship Directive shall apply;
  • the host State may only require certain categories of qualifying family members  who reside in the host State to present, in addition to the identity documents, the following supporting documents:
    • a document attesting to the existence of a family relationship or registered partnership;
    • the registration certificate or, in the absence of a registration system, any other proof that the European Union citizen or the United Kingdom national with whom they reside actually resides in the host State;
    • for direct descendants who are under the age of 21 or who are dependants and dependent direct relatives in the ascending line, and for those of the spouse or registered partner, documentary evidence that the conditions set out in the Citizenship Directive are fulfilled;
    • for certain other persons who qualify,  a document issued by the relevant authority in the host State in accordance with the Citizenship Directive
    • With regard to the condition of sufficient resources as concerns family members who are themselves European Union citizens or United Kingdom nationals, the Citizenship Directive provisions shall apply;
  • the host State may only require family members who fall qualify as direct relations above and persons having a durable relationship with a person in one of the principal categories to present, in addition to the identity documents referred to above, the following supporting documents
  • a document attesting to the existence of a family relationship or of a registered partnership;
  • the registration certificate or, in the absence of a registration system, any other proof of residence in the host State of the European Union citizen or of the United Kingdom nationals whom they are joining in the host State;
  • for spouses or registered partners, a document attesting to the existence of a family relationship or a registered partnership before the end of the transition period;
  • for direct descendants who are under the age of 21 or who are dependants and dependent direct relatives in the ascending line and those of the spouse or registered partner, documentary evidence that they were related to European Union citizens or United Kingdom nationals before the end of the transition period and fulfil the conditions set out in the Citizenship Directive relating to age or dependence;
  • proof that a durable relationship (where applicable) with European Union citizens or United Kingdom nationals existed before the end of the transition period and continues to exist thereafter;
  • for cases other than those set out in the last three categories, the host State shall not require applicants to present supporting documents that go beyond what is strictly necessary and proportionate to provide evidence that the conditions relating to the right of residence under these provisions have been fulfilled;
  • the competent authorities of the host State shall help the applicants to prove their eligibility and to avoid any errors or omissions in their applications; they shall give the applicants the opportunity to furnish supplementary evidence and to correct any deficiencies, errors or omissions;
  • criminality and security checks may be carried out systematically on applicants, with the exclusive aim of verifying whether the restrictions set out in Article 20 of the Agreement may be applicable. For that purpose, applicants may be required to declare past criminal convictions which appear in their criminal record in accordance with the law of the State of conviction at the time of the application. The host State may, if it considers this essential, apply the procedure set out in the Citizenship Directive with respect to enquiries to other States regarding previous criminal records;
  • the new residence document shall include a statement that it has been issued in accordance with the Agreement;
  • the applicant shall have access to judicial and, where appropriate, administrative redress procedures in the host State against any decision refusing to grant the residence status. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed decision is based. Such redress procedures shall ensure that the decision is not disproportionate.

Issuance of residence documents II

During the period for submitting an application  and its possible one-year extension under, all rights provided for in these provisions shall be deemed to apply to European Union citizens or United Kingdom nationals, their respective family members, and other persons residing in the host State, in accordance with the conditions and subject to the restrictions set out below.

Pending a final decision by the competent authorities on any application and pending a final judgment handed down in case of judicial redress sought against any rejection of such application by the competent administrative authorities, all rights provided for in these provisions shall be deemed to apply to the applicant, including the safeguards and right of appeal below, subject to the conditions set out.

Where a host State has chosen not to require European Union citizens or United Kingdom nationals, their family members, and other persons, residing in its territory in accordance with the conditions set out in these provisions, to apply for the new residence status as a condition for legal residence, those eligible for residence rights under these provisions shall have the right to receive, in accordance with the conditions set out in the Citizenship Directive, a residence document, which may be in a digital form, that includes a statement that it has been issued in accordance with the Agreement.

Issuance of residence documents during the transition period

During the transition period, a host State may allow applications for a residence status or residence document to be made voluntarily from the date of entry into force of the Agreement.

Decisions to accept or refuse such applications shall be taken in accordance with the above procedure. Decisions shall have no effect until after the end of the transition period.

If an application is accepted before the end of the transition period, the host State may not withdraw the decision granting the residence status before the end of the transition period on any grounds other than those set out in the Citizenship Directive.

If an application is refused before the end of the transition period, the applicant may apply again at any time before the expiry of the requisite period. The redress procedures shall be available from the date of any decision to refuse an application.

Restrictions of the rights of residence and entry

The conduct of European Union citizens or United Kingdom nationals, their family members, and other persons, who exercise rights under these provisions, where that conduct occurred before the end of the transition period, shall be considered in accordance with the Citizenship Directive.

The conduct of European Union citizens or United Kingdom nationals, their family members, and other persons, who exercise rights under these provisions, where that conduct occurred after the end of the transition period, may constitute grounds for restricting the right of residence by the host State or the right of entry in the State of work in accordance with national legislation.

The host State or the State of work may adopt the necessary measures to refuse, terminate or withdraw any right conferred by these provisions in the case of the abuse of those rights or fraud. Such measures shall be subject to the procedural safeguards provided for in the Agreement.

The host State or the State of work may remove applicants who submitted fraudulent or abusive applications from its territory under the conditions set out in the Citizenship Directive, even before a final judgment has been handed down in the case of judicial redress sought against any rejection of such an application.

The safeguards set out in the Citizenship Directive shall apply in respect of any decision by the host State that restricts residence rights of the persons referred to in Article 10 of the Agreement.

Related rights

In accordance with the Citizenship Directive irrespective of nationality, the family members of a European Union citizen or United Kingdom national who have the right of residence or the right of permanent residence in the host State or the State of work shall be entitled to take up employment or self-employment there.

Equal treatment

In accordance with the Citizenship Directive subject to the specific provisions provided for in these provisions, all European Union citizens or United Kingdom nationals residing on the basis of the Agreement in the territory of the host State shall enjoy equal treatment with the nationals of that State within the scope of these provisions. The benefit of this right shall be extended to those family members of European Union citizens or United Kingdom nationals who have the right of residence or permanent residence.

The host State shall not be obliged to confer entitlement to social assistance during periods of residence on the basis of certain provision of the Citizenship Directive, nor shall it be obliged, prior to a person’s acquisition of the right of permanent residence in accordance with  the Agreement, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status or to members of their families.

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