Citizens’ rights under the Withdrawal Agreement

Simon Usherwood |

Citizens’ rights has been a rather strange part of the Brexit process, in that it has never occupied a very prominent place in the negotiations or discussions, even though it contains huge potential for disruption and problems.

Whereas the financial obligations was seen as a big haggle, and the Irish dimension as complex, citizens’ rights was treated in large part as a matter of recognising the situation of the other parties’ nationals on your territory and leaving it pretty much at that.

Of course, there was more to it than that, not least in the past year when travel restrictions left many living somewhere other than their normal residence, causing complication to the various schemes used by different states.

This matters as we are closing in fast on the first set of deadlines for people to confirm their status: the Withdrawal Agreement provides for people to remain where they were pre-UK withdrawal, but in many states (including the UK) there has to be an active process of acquiring confirmation that it applies.

As the graphic below shows, this stems from a choice open to all signatories as to how they wanted to go about this. The constitutive approach needs that active process, while declaratory model is more flexible (although in some cases deadlines still apply).

These deadlines matter because the lists they produce will be a baseline for accessing the rights contained within the Withdrawal Agreement. As has been seen in both the UK and the EU, the lack of need to hold such official registrations beforehand has led to very significant undercounting by preliminary estimates, with the risk that tens of thousands of individuals might find themselves without a legal residence status.

This summary captures the key points for the UK scheme. Important to note is the issues that arise for anyone not meeting the deadline (even if you ultimately secure settled status) and extent to which Home Office officials will have discretion on cases.

As someone who’s had to help guide a close family member through the British process, I can attest to it being less than simple for anyone not currently in regular employment, so if you know anyone still to do it, then make sure they get going on it now: the link is here.

Even with the best will, there will be many pieces of litigation around this topic, especially should any state start to remove nationals because of non-compliance with these registration schemes. I strongly recommend following Steve Peers on this, for his excellent analysis (gateway page here). The UK in a Changing Europe also have just issued this new report/guide that’s well worth your time.