U.K./EU Joint Report on Brexit Negotiations: Immigration Aspects

On 8 December 2017, the U.K. Government and EU negotiators published a joint report outlining commitments made in the first phase of negotiations with regard to the U.K.’s exit from the European Union. Although the commitments outlined are not in final form, it is expected that they will reflect broadly the provisions of the Withdrawal Agreement to be published at a later date, in advance of the U.K.'s scheduled withdrawal from the European Union on 29 March 2019. Today’s report covers three priority areas: citizens' rights, the dialogue on Ireland/ Northern Ireland and financial settlement. Broadly speaking, EU citizens in the United Kingdom and U.K. citizens in the European Union will see their rights protected, and there will be no ‘hard border’ with Ireland. For the purposes of this briefing, we intend to cover only those provisions relating to immigration.

Citizens’ Rights

Key provisions currently agreed (subject to inclusion in the Withdrawal Agreement) include:

• The Withdrawal Agreement’s objective with respect to citizens' rights is to provide reciprocal protection for EU and U.K. citizens, to enable the effective exercise of rights derived from EU law, and to continue rights where citizens have chosen to exercise free movement rights prior to the specified date of the U.K.’s withdrawal. This “specified date” will be the date of withdrawal which is currently scheduled for 29 March 2019.
• The use of EU law concepts with regards to citizens’ rights will be interpreted in line with case law of the Court of Justice of the European Union (CJEU) until the date of withdrawal.
• The scope of the provisions in the Withdrawal Agreement will apply to EU citizens legally residing in the United Kingdom and U.K. nationals legally residing in an EU Member State at the date of withdrawal, as well as their family members who are legally resident in the host country at that time.
• Discrimination on the grounds of nationality will be prohibited in the host country and the country of work in respect of both EU and U.K. nationals, and their respective family members.
• Irrespective of their nationality, family members of EU or U.K. nationals who were not residing in the host country on the specified date will be entitled to join that right holder (for the duration of that person’s lifetime) on the same conditions as under current EU law. These family members broadly include spouses, registered partners as equivalent to marriage, children or grandchildren under 21 (including those born or legally adopted after the specified date of withdrawal), and dependents (e.g., students supported by their parents, or dependent parents and grandparents).
• The U.K. and EU Member States will continue to facilitate post-withdrawal entry and residence of partners in a durable relationship in accordance with national legislation, as long as the relationship existed and was durable on the withdrawal date, and continues to exist at the point they wish to join the right holder.
• Frontier workers (i.e., pursuing employment in one country whilst residing in another), on the specified date of withdrawal will fall within the scope of the Withdrawal Agreement.
• The U.K. or EU Member States may require persons concerned to apply for a status conferring the rights of residence as provided for by the Withdrawal Agreement, and be issued with a residence document attesting to the existence of that right.
• It is intended that administrative procedures for applications for status will be transparent, streamlined and inexpensive. In particular:
  • Host states cannot require anything more than is strictly necessary and proportionate to determine whether the criteria have been met.
  • Host states must avoid any unnecessary administrative burdens.
  • Application forms should be short, simple and user friendly.
  • A proportionate approach will be taken to those who miss the deadline for application where there is a good reason.
  • The timeframe for submitting an application to obtain status will be at least two years. During this time period, those applicants will enjoy the rights conferred on them by the Withdrawal Agreement. Residence documents under the Withdrawal Agreement will be issued free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents.
  The proposed procedures are set out in full in a separate technical note published by the U.K. Government, which we have covered in more detail here.
• Decisions regarding status under the Withdrawal Agreement will be made in accordance with objective criteria (i.e., no discretion, unless in the favour of the applicant). There will be safeguards for a fair procedure, and decisions will be subject to redress mechanisms and judicial controls.
• The conditions for acquiring the right of residence under the Withdrawal Agreement are those set out in EU law currently, including the right to change status.
• The conditions for acquiring the right of permanent residence under the Withdrawal Agreement are those set out in EU law currently, with periods of lawful residence prior to the specified date included in the calculation.
• The U.K. or EU Member States can apply more favourable national provisions in accordance with EU law as it currently stands.
• In order to obtain status under the Withdrawal Agreement by application, those already holding a permanent residence document issued under EU law at the specified date will have that document converted into the new document free of charge, subject only to identity verification, criminality and security checks and confirmation of ongoing residence. In this connection, please see our explanation of the U.K. Government’s Technical Note here.
• Systematic criminality and security checks can be carried out on all applicants for status.
• Persons who acquired permanent residence rights in the host state under the Withdrawal Agreement can be absent from its territory for a period of up to five consecutive years without losing their residence rights.

Ireland and Northern Ireland

The United Kingdom acknowledges the unique situation in Ireland and remains committed to protecting North-South cooperation and avoiding a hard border, including any physical infrastructure or related checks and controls.

The intention is to achieve these objectives through the overall EU-U.K. relationship. Should this not be possible, the United Kingdom will propose more specific solutions. In the absence of agreed solutions, the rules of the Internal Market and the Customs Union will apply, which support North-South cooperation, the all-island economy, and the protection of the 1998 Belfast/ Good Friday Agreement. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland's businesses to the whole of the U.K. internal market.

The people of Northern Ireland enjoy the right to choose to be Irish or British or both, and be accepted as such. Those who are Irish citizens will continue to enjoy rights as EU citizens. The Withdrawal Agreement will therefore respect the rights, opportunities and identity that come with EU citizenship for people in this situation. Arrangements required to give effect to the ongoing exercise of, and access to, their EU rights, opportunities and benefits will be examined in future negotiations.

Negotiations are still in their early stages. If the 27 Member States agree with the assessment, the second phase of the negotiations will begin.