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Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union

Posted in: Brexit, Information Topic,
Author: Myra Cecilia Azzopardi
Tags: , ,

This is my personal assessment after reading of the “Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union”. The withdrawal date is set for March 2019 with an agreed transition period ending in December 2020. The transition period on the insistence of the EU negotiating team is to include citizen’s rights. This will ensure that during this period UK nationals and EU citizens will be able to exercise their rights to move freely and settle in the 27 Member states and the UK. This is a clarification of the December 8 2017. It is important to note this text on the agreement (The colouring of the text corresponds to the following meanings: text in green is agreed at negotiators’ level, and will only be subject to technical legal revisions in the coming weeks). Part two on Citizens Rights part two is coloured in green. The full agreement can be found in this link.

This agreement refers to UK citizens as UK nationals and citizens from the 27 member states as EU citizens. It is highly likely that we will lose our EU citizenship status on March 2019, the withdrawal date. We are described as non-EU citizens in the draft agreement of March 19, 2018. The excerpt below is taken from the draft and may assist in understanding the draft.

“Union citizen” means any person holding the nationality of a Member State;
“United Kingdom national” means a national of the United Kingdom, as defined in the New
declaration by the Government of the United Kingdom of Great Britain and Northern Ireland.

The Draft Agreement refers to:

EU citizens residing in the UK and United Kingdom nationals who exercised their right to reside in a Member State in accordance with Union law before the end of the transition period and continue to reside thereafter include;

*Family members, irrelevant of nationality and including those who were in a durable relationship before the end of the transition period, can apply after that date.
*Self sufficient residents.
*Cross border workers.
*Adopted children including those adoptions taking place after the transition period.

The draft states “the host State may not impose any limitations and conditions other than those provided for in this Title on the persons aforementioned in retaining or losing residence rights”.

The host member States including Spain may require that we apply for new residence status  (registration certificate residency), in compliance with the conditions  set out in this title.

Why would they?

1.The UK and the EU are asking for the agreement on citizen’s rights to be reciprocal.
2.The UK government later this year are opening what they describe as a “user-friendly scheme” to enable EU citizens residing in the UK to secure their settled status”. (Considering that the UK did not apply the EU directive 2004/38 EC (Hereafter known as Directive). The majority of EU citizens are not in possession of a registration certificate and that is why they will have to apply for settled status. (Permanent residence).
3.Our registration certificates clearly states “ that we are inscribed on the register for citizens of the European community”. Obviously we will not meet the criteria after the end of the transition period unless UK has a sudden desire to take on the models of Norway or Switzerland.

The agreement states “those who made the choice of the freedom of movement according to the EU directive and are legally resident in Spain can stay. That should suffice but does it? Taking note of the paragraph above it would make sense that Spain will rightly opt for reciprocity as asked for by the UK and drafted into the agreement.

Right of permanent residence. 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 the, (Directive) shall have the right to reside permanently in the host State under the conditions set out in Articles of the Directive. Periods of legal residence or work in accordance with Union 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. The draft agreement refers to the articles in the Directive on the right of permanent residence.

Agreement states “Continuity of residence for the purposes of acquisition of the right of permanent residence shall be determined in accordance with Article 16(3) and Article 21 of Directive”.

Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding five consecutive years.

This is what we committed to when we first chose to exercise our freedom of movement and the right to permanent residence. An extract from the Directive Article 16

Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III. (The chapter refers to the first application for residency where full documentation for proof of right of residence had to be provided) . Shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State.

Draft Agreement Article 17
Issuance of residence documents

The host State may require United Kingdom nationals, their respective family members to apply for a new residence status. Which confers the rights under this Title and a document evidencing such status that may be in a digital form.

Applying for such a residence status shall be subject to the following conditions:
The application procedure shall be to verify whether the applicant is entitled to the residence rights set out in this Title. Where that is the case, the applicant shall have a right to be granted the residence status and the document evidencing it;

The host State shall ensure that administrative procedures for applications are smooth, transparent and simple and that any unnecessary administrative burdens are avoided;

Persons who, before the end of the transition period, are holders of a valid permanent residence document or 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 of not less than 6 months for a new residence document upon application after a verification of their identity, a criminality and security check in accordance with the rights in this agreement and confirmation of ongoing residence; such a document shall be free of charge;

Criminality and security checks may be carried out systematically on applicants with the exclusive aim of verifying whether restrictions set out in Article 18 of this Agreement may be applicable. For that purpose, applicants may be required to declare past criminal convictions that appear in their criminal record in accordance with the law of the State

Restrictions of the right of residence

1. Conduct of Union citizens or United Kingdom nationals, their family members or other persons, exercising rights under this Title, that occurred before the end of the transition period shall be considered in accordance with a Chapter of Directive (serious charges or public health)

Ongoing residency.

Besides a valid passport or ID document the host state can also ask you to provide from the Directive article. 8(3)

*Civil status documents,
*Workers proof of continual employment.
*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 have comprehensive sickness insurance cover in the host State
* Students, proof of enrolment at an establishment accredited or financed by the host State and sufficient resources, have comprehensive sickness insurance cover in the host Member State;

The requisites are basically the same as first application. Permanent residence was granted in accordance with the Directive, without the need to make a new application unless there was doubt that the resident could be become a burden on the state.

From my point of view, the application of a new status is paramount to the removal of the acquired right of residence. Those for example, who have permanent residence, were given that as an acquired right with no formal application as information is in the database.

The Spanish residency administrative offices have not always made residency applications simple and many citizens have faced problems. This has become more obvious when those who had legally met the right to update their registration certificates for a permanent document were either refused or asked to provide full documentation. Asking for a change of address or a duplicate for a lost or damaged certificate has also been met with difficulties. In many cases the civil servants appear to not be au fait with residency law. We still have some offices that are insisting that the registration  certificates with no expiry date are invalid after five years; Then there were the (illegal) systematic checks on residents in 2015. Several were asked to provide full documentation to prove ongoing residency. CAB Spain was sent several of the notification letters sent by the ministry of the interior to these concerned residents. Though they did meet the criteria, many hired lawyers and compiled all documentation from their first application. These had to be taken to the regional residency offices and not the local Policia Nacional stations.

Should Spain apply the option for the change in residency certificates, I do not envisage a simple transition for the requirement of a new type of residency paper or card.  The applications for these  cannot come into force until six months after December 2020.

CAB Spain’s interest is citizens. We accept that we can only hold the status of EU citizens if we are from one of the member states (treaty article 2o: Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship)., we suggest that we have already legally acquired the right to reside in Spain. The options given to member states to require additional documentation for a new status, is tantamount to us losing our legally acquired right to reside in Spain. This is not acceptable and should we be asked to apply for new resident status documents, that these should be provided by simply renewing our existing registration certificates for the new model either free of charge as stated for permanent residents, or for the same costs and Spanish nationals pay for their ID card.

Right of exit and of entry

United Kingdom nationals, their respective family members shall have the right to leave the host State and the right to enter it with a valid passport or ID Card.

Article 32. Which restricted the freedom of movement in the EU 27 to those UK nationals residing in a member state. has been removed from the draft. There has been no addition so we are left wondering if we will continue to have the freedom of movement or closed into our country of residence.

There is nothing in the agreement referencing our status post Brexit.

For those who wish to discuss the matter further, please register as members of this website so you can comment below this article.

Please note: The information provided is based upon our understanding of current legislation. It is not legal advice but is provided freely to enable you to be properly informed. We recommend that if you are considering taking action, you should seek professional advice.

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