06.03.2018 The EU’s draft Brexit withdrawal agreement

06.03.2018 The EU’s draft Brexit withdrawal agreement

The European Commission has published the draft of an agreement setting out the terms of the UK’s withdrawal from the EU, including the crucial issue of citizens’ rights for EU nationals currently living in the UK or arriving to the UK before Brexit is finalised.

The document is not a final treaty. The draft will go through a series of discussions with the European Council and the European Parliament before it is submitted for negotiation with the UK government.

While there is no UK government equivalent of this document, there is a British counter-offer on free movement of people continuing during an “implementation period”, which 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. These are the most significant features of the draft withdrawal agreement in terms of citizens’ rights:

Free movement
The EU’s position is that “all EU citizens arriving in the UK during the implementation 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 to the UK 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.

Those arriving in the UK during the transition period should register. After being here for five years they would have the right to stay, subject to the same restrictive rules on family reunion as British citizens. They would be offered a separate registration track and instead of “settled status” they would be offered indefinite leave to remain.

EU citizens will only be able to stay after the implementation period if they have complied with the requirement to register after three months’ residence in the UK. The rights of the implementation period cohort will be defined in UK law and interpreted solely through the UK courts.

Family reunion rights
Withdrawal Agreement confirmed that all family members (close and extended) of qualifying EU citizens, regardless of their nationality, would be able to join them in the UK so long as the family relationship existed before the end of the Brexit transition period.

What happens next?
The draft withdrawal agreement provides us with more clarity on the implications of Brexit, however, it is effectively subject to the outcome of the negotiations between the EU and the UK.
It remains clear that certain groups of EU citizens remain outside the scope of the draft’s protection post-Brexit and, from January 2021, the Home Office will decide their fate.

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