BREXIT WITHDRAWAL AGREEMENT.

[Obie]

Here is the Brexit Withdrawal agreement.



In some aspect, it seems more better than Directive 2004/38EC.

[secret.simon]

The points worth highlighting in the Citizens' Rights part of the Brexit Agreement.

Extended Family Members (other than durable partners) are excluded from the scope of the Withdrawal agreement and explicitly put under national jurisdiction(Paragraph 14).

Documentation for rights under the Withdrawal Agreement and applications for such documentation can be made mandatory and won't be automatic, as it is now (Paragraph 16)

PR preserved if absent from the UK for a period of less than five years, as opposed to two years under the current Directive 2004/38/EC (Paragraph 25)

Citizens rights will be incorporated into UK law by primary legislation (Act of Parliament), which can only be repealed explicitly (normal Acts of Parliament can be repealed implicitly). (Paragraph 36) - It is worth understanding that in terms of UK constitutional law, no Parliament can bind its successor and any Act of Parliament (or its equivalent) can be repealed by Parliament. Most parts of the Magna Carta have been repealed and replaced, in spite of its iconic status.

UK courts are to have "due regard" of CJEU decisions post-Brexit. They can also ask the CJEU questions on EU law (as they can now), but only for cases commenced within 8 years of Brexit (Paragraph 38)

The implications of the Withdrawal agreement on the future of the SS Route and Zambrano carers are unclear.

[secret.simon]

Brexit Breakthrough Risks Leaving Brits in Europe ‘Landlocked’

But while the deal protects the rights of expat Brits in their host EU member state “it would appear there won’t be new freedom of movement,” according to Liz Barratt, an immigration lawyer at Bindmans in London.

“A U.K. citizen living in France isn’t going to have the right to move to Italy under European law once the U.K. leaves.” It’s possible that some other agreement could be reached that would allow this, she says, but the current agreement doesn’t.

[eeaprneu2]

Extended Family Members (other than durable partners) are excluded from the scope of the Withdrawal agreement and explicitly put under national jurisdiction(Paragraph 14).

Wasn't this always the case? for extended family members, it was the member state exercising 'discretion' under its national law.

[mkhan2525]

The implications of the Withdrawal agreement on the future of the SS Route and Zambrano carers are unclear.

The joint tehnical note seems to suggest the Surinder Singh and Lounes case will be covered by the withdrawal agreement but there remains a question mark over Zambrano carers.

EU Citizens and UK nationals resident in accordance with Article 21 TFEU.

https://ec.europa.eu/commission/sites/b ... _table.pdf

[Pzeeman]

Does anyone know what's happening with the EEA2 residence card applications that are in process?

[DFDS.]

Extended Family Members (other than durable partners) are excluded from the scope of the Withdrawal agreement and explicitly put under national jurisdiction(Paragraph 14).

Wasn't this always the case? for extended family members, it was the member state exercising 'discretion' under its national law.

Secret Simon's post is not clear, what he is not telling you is that paragraph 14 is intended for those arriving after the cut off date. The withdraw Agreement covers all categories of family members, legally residing in member. Paragraph (10)

[GMB]

Freemovement has done an initial analysis of the EU citizens' rights aspects of the Phase 1 agreement. It should surprise no one that several situations/scenarios have not been considered, and some parts of the 'generous' offer are less so. Well worth reading.
https://www.freemovement.org.uk/brexit- ... ns-rights/

[verty]

Does anyone know what's happening with the EEA2 residence card applications that are in process?

I second that. I have an electronic PR application form processing and I was able to check the status but no longer can. This was the link where you could check the status but they have removed it.

Will they still grant PR to people who apply for it?

https://contact-ukvi.homeoffice.gov.uk/ ... visastatus

[JulietSoul]

How will this affect partners of British citizens in the Surinder Singh route? I am due to apply for permanent residence in August 2018, will I still be able to do so? This is very confusing...

[jinkazama_11]

Is Surinder Singh route protected in the withdrawal agreement? I can't see a direct citation anywhere.

[jinkazama_11]

The implications of the Withdrawal agreement on the future of the SS Route and Zambrano carers are unclear.

The joint tehnical note seems to suggest the Surinder Singh and Lounes case will be covered by the withdrawal agreement but there remains a question mark over Zambrano carers.

EU Citizens and UK nationals resident in accordance with Article 21 TFEU.

https://ec.europa.eu/commission/sites/b ... _table.pdf

I can't see a reference to SS route in the withdrawal agreement, how do you know if SS route is protected?

[Graham Weifang]

How will this affect partners of British citizens in the Surinder Singh route? I am due to apply for permanent residence in August 2018, will I still be able to do so? This is very confusing...

My Chinese wife will have completed her 5 years in UK in October 2018, ie, 5 years from our (her) entry into Uk via SS.

I think it will all be fine, with being so far down the road.

GW

[JulietSoul]

How will this affect partners of British citizens in the Surinder Singh route? I am due to apply for permanent residence in August 2018, will I still be able to do so? This is very confusing...

My Chinese wife will have completed her 5 years in UK in October 2018, ie, 5 years from our (her) entry into Uk via SS.

I think it will all be fine, with being so far down the road.

GW

I agree we will be fine, just wondering when it will be made clear what the procedure will be, and whether these changes affect us, and how.

[Navaro2]

In one of the posts above someone said about brexit withdrawal agreement covering Lounes case.
which section of these says that? Or is it about one telling that CJEU as arbiter???

Regards

Wal

[mkhan2525]

The implications of the Withdrawal agreement on the future of the SS Route and Zambrano carers are unclear.

The joint tehnical note seems to suggest the Surinder Singh and Lounes case will be covered by the withdrawal agreement but there remains a question mark over Zambrano carers.

EU Citizens and UK nationals resident in accordance with Article 21 TFEU.

https://ec.europa.eu/commission/sites/b ... _table.pdf

I can't see a reference to SS route in the withdrawal agreement, how do you know if SS route is protected?

When an EU national returns to the member state of which he or she is a national they are seeking to rely on Article 21 of the treaty to continue a family life which was created or strengthend in the host Member State.

The detailed joint technical note suggests an agreement has been reached to cover UK nationals who are resident according to Article 21 TFEU. Whether the non-EU national family members are able to apply for settled status is an open question.

I don't envisage a scenario where such family members who were lawfully resident will be deported. In the worst case scenario the residence may be counted towards the 10 year route to settlement after which they can apply for ILR at the cost of £2K-3K.

[mkhan2525]

How will this affect partners of British citizens in the Surinder Singh route? I am due to apply for permanent residence in August 2018, will I still be able to do so? This is very confusing...

My Chinese wife will have completed her 5 years in UK in October 2018, ie, 5 years from our (her) entry into Uk via SS.

I think it will all be fine, with being so far down the road.

GW

I agree we will be fine, just wondering when it will be made clear what the procedure will be, and whether these changes affect us, and how.

In the second half of 2018, the Home Office will start issuing setlled status documents under UK law and may discontinue EU law documents. How this effects SS cases is unknown at this moment in time. However the UK will have abide by EU law until the end of the transistion period in 2021.

[Obie]

My take on this is that the withdrawal treaty on Article appear to deal with British Citizens in another member state. If the intention was to cover both, this would have been expressly stated.

The CJEU may have to rule on the clarity of these issues if they are not clarified before Brexit.

[jinkazama_11]

My take on this is that the withdrawal treaty on Article appear to deal with British Citizens in another member state. If the intention was to cover both, this would have been expressly stated.

The CJEU may have to rule on the clarity of these issues if they are not clarified before Brexit.

I was under the same assumption.

[mkhan2525]

My take on this is that the withdrawal treaty on Article appear to deal with British Citizens in another member state. If the intention was to cover both, this would have been expressly stated.

Whilst the agreement reached only covers EU nationals in the UK and UK nationals in the EU the wording of the joint technical note suggests SS "may" be covered. As I was seeking to convey, this does not necessarily mean their family members will be entitled to apply for Settled Status they may be protected in a sense that they will be able to apply under the Immigration rules for example the long residence route.

The position may change before Brexit as the government has stated that nothing is agreed until everything is agreed. We will have to wait for the final withdrawal agreement that parliament is promised a vote on.

I would advise people to educate their MP on this area of EU law.

[Obie]

Well everyone is entitled to apply under long residence under the rules, as far as i know it is not an EU requirement.

It is either the agreement is applicable and in which case British Citizens in the UK who had previously exercised treaty rights are protected, or they are not. It is an all or nothing situation.

So far, my reading of the agreement is that these people don't qualify, and that is clearly an anomaly which the CJEU will have to adjudicate on in due course.

These people are clearly covered by the treaty, and if EU and the UK were not to breach the treaty, these people should not lose their treaty rights that they had accrued as a result of UK's decision, which i suspect of these people did not play a part in.

[Navaro2]

I am dual citizen and my wife is going to apply for PR now. After Lounes judgement there is still no change to the Non EEA national family members of dual EEA and British citizens guide (version 5.0) from 21 April 2017 I found on gov.
As someone posted above " The caseworker will follow the present guide and may not take into consideration the final judgement of Lounes from November.
I am wondering how to support the application we are going to submit to point that final judgement as the key.
However if they are going to update that guideline to be clear at all that is a question.


Thanks to everyone for useful advices.

[eeaprneu2]

I am dual citizen and my wife is going to apply for PR now. After Lounes judgement there is still no change to the Non EEA national family members of dual EEA and British citizens guide (version 5.0) from 21 April 2017 I found on gov.
As someone posted above " The caseworker will follow the present guide and may not take into consideration the final judgement of Lounes from November.
I am wondering how to support the application we are going to submit to point that final judgement as the key.
However if they are going to update that guideline to be clear at all that is a question.


Thanks to everyone for useful advices.

The Lounes judgement of ECJ is superior to the UK law and whatever guidance the case worker has. You should mention the Lounes case in the notes/cover letter of your application politely but firmly.

Their refusal on this basis would be illegal and you can appeal against it.

[Elin07]

wondering if anyone can shine any light please

We are thinking of returning to the UK under the SS route now/early 2018 (haven't yet applied but have been living and working in Ireland for 2 years with my non EU husband so I assume we can still apply, I'm British) but I am wondering what will happen to him when the 5 year UK residency card would expire? I'm worried that their could be a whole new system in place and we might have to start from scratch and this makes me wonder if we are better off staying in Ireland? (currently one year in on his 5 year visa which we got under my EU freedom of movements rights) any advice greatly appreciated as we've just had a child (born in Ireland) and trying to figure out what to do for the best and the future security of my family all being able to live in the same country!

[mkhan2525]

Before Christmas, I wrote to the Brexit negotiating team at the EU Commision to confirm the status of SS and Zambrano rights after Brexit. I have received a response from them today confirming these rights will fall under dometic law after Brexit (see final paragraph).

This could also have potential implications for those relying on the Lounes case as the ruling comes under derived rights.

Dear Mr XXXXXX,

Thank you for your e-mail of 19 December 2017 concerning the rights of EU citizens in the context of Brexit.

Safeguarding the status and rights derived from EU law at the date of withdrawal of EU citizens and UK nationals is an essential objective of the ongoing negotiations with the United Kingdom.

On 15 December 2017, the European Council decided on the basis of the Joint Report that sufficient progress has been achieved in each of the three priority areas of citizens' rights, the dialogue on Ireland / Northern Ireland and the financial settlement.

You can find the Joint Report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union at http://europa.eu/rapid/press-release_IP-17-5173_en.htm.

You can find more details about the Joint Report and its impact of citizens' rights in our dedicated Questions and Answers document (available at https://ec.europa.eu/commission/sites/b ... ghts_1.pdf) and our website at https://ec.europa.eu/commission/brexit-negotiations_en.

The basic delineation of personal scope of the citizens’ rights Part of the Withdrawal Agreement is found in paragraph 10 of the Joint Report – EU citizens who in accordance with Union law legally reside in the UK, and UK nationals who in accordance with Union law legally reside in an EU27 Member State by the specified date, as well as their family members as defined by Directive 2004/38/EC (the Free Movement Directive, available at http://eur-lex.europa.eu/LexUriServ/Lex ... 616:EN:PDF) who are legally resident in the host State by the specified date, will fall within the scope of the Withdrawal Agreement.

Obtaining status under the Withdrawal Agreement will be made in accordance with the objective criteria established in the Withdrawal Agreement that will essentially mirror criteria Articles 6, 7, 12, 13 and 16 to 18 of the Free Movement Directive or primary law (Articles 21, 45 or 49 TFEU) attach to obtaining (and retaining) the right of residence under.

The Joint Report covers only EU citizens and their family members, who lawfully resided in the UK at the time of withdrawal, and UK nationals and their family members, who did so in an EU27 Member State.

Given the scope of our negotiating mandate, as outlined by the Council, the December deal covers neither UK nationals residing in the UK at the time of withdrawal pursuant to case law of the Court of Justice on returning nationals (case C-370/90 Surinder Singh) nor persons currently protected by Article 20 TFEU, such as those concerned by the ruling of the Court of Justice in case C-34/09 Ruiz Zambrano. In any event, we expect that UK citizens and their family members residing in the UK in accordance with these rules will be able to stay in the UK under the domestic laws that are currently underlying their right of residence. These domestic laws are not affected by the UK's withdrawal.

Yours sincerely,

The Task Force for the Preparation and Conduct of the Negotiations
with the United Kingdom under Article 50 TEU (IA)


cid:image001.gif@01CDAC48.DEFA49A0
European Commission
Rue de la Loi 200
B-1049 Brussels/Belgium