The European Commission has published a draft legal text for a Brexit “Withdrawal Agreement”. It includes the all-important issue of citizens’ rights for EU nationals already living in the UK or arriving here before Brexit is finalised.

This draft is not a final treaty or necessarily the version that EU and UK negotiators will end up signing. It is how the Commission thinks that December’s general agreement on the first phase of Brexit negotiations — officially called the Joint Report — should be translated into legal language. It also “develops” that agreement “in more detail”, as well as pushing the boat out a bit on issues that were left unresolved in December.

The document will then go through a series of discussions with the European Council and the European Parliament before it is submitted for negotiation with the UK government.

Nevertheless, there is no UK government equivalent of this draft. The EU has made all the running. There is, however, a new three-page British counter-offer on free movement continuing during an “implementation period”.

What does all this amount to? As David Allen Green points out, it is too soon to offer the definitive take on a long and complex legal instrument. But here are some preliminary observations. They are largely based on what the Commission itself thinks are the most significant features of the draft text in terms of citizens’ rights, as well as incorporating some comments from Chris Desira, whose post on the Joint Report from December is still the best overview of the citizens’ rights agreement.

Free movement continuing until the end of 2020

An implementation or transition period is expected to run from the date of nominal Brexit on 29 March 2019 to the beginning of actual Brexit, which the EU wants to be 31 December 2020. The EU’s position is that “all EU citizens arriving in the host State during this period should have exactly the same rights as EU citizens who arrived before the UK’s withdrawal”.

From this it follows that those citizens arriving between 29 March 2019 and 31 December 2020 should be covered by the citizens’ rights agreement, in the same way as those already here, rather than any new post-Brexit immigration system. This is expressed in Article 9 of the draft Withdrawal Agreement as follows:

Without prejudice to Title III, this Part shall apply to the following persons:

(a) Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter.

…

(e) family members… where they… they resided in the host State in accordance with Union law before the end of the transition period and continue to reside there thereafter.

The UK government’s riposte is that new arrivals during the transition period should have to register. They would have the right to stay after being here five years, but not on the terms offered in the Withdrawal Agreement. Instead they would be subject to the same restrictive rules on family reunion as British citizens and not have their rights overseen by the EU Court of Justice.

There would even be a separate registration track for this cohort. Instead of “settled status”, they would be offered indefinite leave to remain. One would be an EU law concept (see below), the other a UK law concept. This is even before we get to the new (and yet to be determined) system for people who arrive after the transition period is over.

Bureaucracy, thy name is Brexit.

Better family reunion rights than the UK has agreed to so far

It had already been agreed in December that family members of qualifying EU citizens would be able to join them in the UK so long as the relationship existed before the Brexit cut-off point. But the Commission immediately signalled that it wanted EU citizens who met their partner after Brexit to be able to bring them to live in the UK as well. As such, draft Article 9(e)(ii) says that the agreement applies to family members who:

resided outside the host State before the end of the transition period, provided that they fulfil the conditions set out in point (2) of Article 2 of Directive 2004/38/EC at the time they seek residence under this Part in order to join the person referred to in points (a) to (d) of this paragraph.

“Point (2) of Article 2 of Directive 2004/38/EC” refers to dependents as well as partners, in fact, so this would appear to benefit more than just couples.

“Settled status” would actually be permanent residence

The Home Office label for the legal rights of EU citizens post-Brexit is “settled status”. We had thought that this would be a creature of UK law, albeit with some oversight by the EU Court of Justice for a limited (eight-year) period. But the draft Withdrawal Agreement signals that what is on offer is full-blown permanent residence — an EU law animal. Draft Article 14 says:

Union citizens, United Kingdom nationals, and their respective family members, who have resided legally in accordance with Union law for a continuous period of five years in the host State, or for the duration specified in Article 17 of Directive 2004/38/EC, shall have the right of permanent residence in the host State as set out in Articles 16, 17 and 18 of Directive 2004/38/EC.

If this interpretation were accepted, it would make rather a nonsense of EU citizens with permanent residence documents having to exchange them for new settled status documents. The draft seems to say that the legal rights that the documents prove are one and the same.

It is also significant because of draft Article 4(4):

The provisions of this Agreement referring to Union law or concepts or provisions thereof shall in their implementation and application be interpreted in conformity with the relevant case law of the Court of Justice of the European Union handed down before the end of the transition period.

As permanent residence is very much an EU law concept, this approach seems to preserve it in aspic for qualifying EU citizens for all time.

Enforcement of the agreement

Allowing for administrative foul-ups

The Commission is clearly concerned with the ominous noises on the Home Office’s capacity to make all this happen. Accordingly, draft Article 17 says:

the deadline for submitting [applications for residence documents] shall be extended automatically by one year where the Union or the United Kingdom has notified the United Kingdom or the Union, respectively, 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 citizens or nationals concerned in good time.

In other words, if the Home Office screws up the administrative side of things, EU citizens will get extra time to apply for settled status.

Ensuring that the agreement can be relied upon directly in British courts

Draft Article 4 says:

Union citizens and United Kingdom nationals shall be able to rely directly on the provisions contained or referred to in [the bit about citizens’ rights]. Any provisions inconsistent or incompatible with that Part shall be disapplied.

The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities, through domestic primary legislation.

This was as agreed in the Joint Report, which calls for a “Withdrawal Agreement & Implementation Bill… This Bill will make express reference to the Agreement and will fully incorporate the citizens’ rights Part into UK law”.

But that is not all when it comes to ensuring that the UK keeps up its end of the bargain. The EU also wants:

An independent body to keep an eye on the UK

Draft Article 152 says:

The United Kingdom shall set up an independent Authority to monitor the implementation and application of [the bit about citizens’ rights].

This Authority would have the power to:

• field complaints from EU citizens about the breach of their rights under the Withdrawal Agreement
• conduct “inquiries” about same
• bring legal action over breach of rights before the UK courts

It would have to inform the European Commission before taking any legal action and have the option of consulting with it in advance of such action. The Commission could also suggest legal action for the Authority to take.

Note that there is no equivalent proposed to ensure that UK citizens in Europe are protected. The proposal is plainly a result of the negative coverage of Home Office treatment of EU citizens over the past year or more. That is unlikely to assuage the concerns of Brexit supporters at what they are bound to see as a cuckoo in the nest of undiluted British sovereignty.

Other points

Professional qualifications

A professional, for example a lawyer or doctor, who has had his or her qualifications recognised in the UK will be able to continue to rely on the recognition decision to carry out their professional activities. A doctor who has applied for the recognition of her French qualification, for example, before the end of the transition period but does not receive a recognition before the transition period ends will have her qualifications so recognised if the decision comes after the transition period.

Good news for Surinder Singh families

The above comes courtesy of Chris; the below is not my observation either, but worth passing on:

10 The general reference to EU law should mean that "Surinder Singh" cases (where UK citizens go to the EU27 with their non-EU family and then return) should be covered.

— Steve Peers (@StevePeers) February 28, 2018

What happens next?

This draft gives us a little more clarity on where we are heading but remains subject to the outcome of the negotiations between the EU and the UK.

It continues to make clear that certain groups of EU citizens, including some of the most vulnerable, remain outside the scope of its protection. It may be that an EU citizen child under the care of a local authority, a homeless EU citizen, or non-EU nationals who have derived rights derived from EU citizens will simply be at the mercy of the Home Office come 1 January 2021.