What's the big deal? Part 1: what does the draft Withdrawal Agreement mean for us?

As I write this, opinion polls are strongly suggesting that there will be a Conservative majority in the upcoming election. If that happens, Boris Johnson will bring his Withdrawal Agreement back to Parliament before Christmas. Because he'd have a majority it's pretty sure to be ratified, which means that in this situation the UK will almost certainly leave the EU on (or even before) 31 January 2020.

That's bad news and less bad news for us. The bad: the UK would leave the EU, there would be no second referendum, and we would lose our EU citizenship on Brexit day. The less bad news: the Withdrawal Agreement does a much better job of protecting our rights than France's no deal ordonnance and decree.

At France Rights and British in Europe we've been working flat out on no deal issues for well over a year now, and almost all the info and news we've put out during that time has been about the no deal scenario. So it's very likely that you - like us! - have lost track a bit of what will happen in the case of a deal. In this article we reel ourselves back to take a look at what the draft Withdrawal Agreement (WA) means for our ongoing rights as British citizens in Europe, and in the one that follows we home in on what we already know of how it would affect us in France.

What is the Withdrawal Agreement?

It's an agreement between the UK and the EU that - once ratified by both the UK and the European Parliament and in force - is effectively a legally binding international treaty. It sets out how the UK would leave the EU and focuses on 4 key areas: money (the 'divorce bill'); northern Ireland; laws, governance and disputes; and​ citizens' rights.

There's also a political declaration that goes with it and sets out the aspirations for the future relationship between UK and EU. But negotiations on this - including a trade agreement - can't begin until after the UK has left the EU.

Two key dates

31 January 2020
The first key date is obviously exit day itself - 31 January 2020 (earlier if agreed by both sides). This is the point at which we would lose our voting and political rights and wouldn't be able either to vote or stand as a candidate in the 2020 municipal elections. But we would retain all our other current rights - including freedom of movement - until the end of the transition period - see below.

31 December 2020
The second key date is the end of the transition/implementation period, which would begin on Brexit day and last until 31 December 2020. This date - known as the 'effective date' - is crucial, as it's the date on which you must be 'legally resident' in France to have your ongoing rights covered under the WA. This includes people who have moved to France after Brexit day but before the end of transition on 31 December 2020, who will be covered by the WA on the same terms as those resident before Brexit day itself.

The transition can be extended, but only for a period of one or two years (in other words up to the end of 2022 at most). Both UK and EU must agree to any extension and the decision must be taken before 1 July 2021. Johnson has said that he has no intention of requesting an extension (but of course we've heard that before!) and that he intends to negotiate a future relationship/trade deal within 11 months. Many commentators say this would be impossible.

A December 2020 no deal?

You've almost certainly read about the possibility of a second cliff edge if the government fails to negotiate a future relationship/trade deal by the 31 December 2020 and there's no extension to the transition agreement. This is often referred to in the media as a second no deal point.

If this should happen, the UK would automatically default to trading on WTO terms. However - and this is important - the Withdrawal Agreement would remain in place as an international treaty and the rights that it includes for us would remain covered. They cannot be removed even in the absence of a trade agreement. Once the Withdrawal Agreement is in force, we will be covered by it for our lifetimes whatever happens with future negotiations.

Would the Withdrawal Agreement protect all my rights?

You've probably heard politicians on both sides of the negotiations saying that the withdrawal agreement 'protects all our citizens' rights'. That's not quite the case, although it does offer much better protection than France's no deal ordonnance and decree. This paragraph is a quick (and non-exhaustive) general summary of the state of play. 
  • If you are ‘legally resident’ on transition day (31 December 2020) you can stay. This is known as the 'effective date'. This includes people who have moved to the EU27 up to the end of transition on 31 December 2020, who will be covered by the Withdrawal Agreement on the same terms as those present before Brexit day itself.
  • The current conditions for legal residence under EU law will apply. After 3 months you have to be working/self-employed, self-sufficient, a student or a family member of any such person. People who are self-sufficient or students have to have health insurance (for pensioners or others who hold one, the S1 form is sufficient). After 5 years these conditions fall away, although you have to prove that you met them for a 5 year period, and you can then apply for permanent residence status.
  • The 5 years can include years both before and after the effective date.​ Anyone with less than 5 years residence can build up their years until they reach 5, when they are eligible for permanent residence, under the same conditions as now. 
  • If you have acquired permanent residence, you can be away from France for 5 years - an increase on the 2 years permitted for EU citizens - and still retain the right to return and keep your rights of permanent residence. This includes where you have acquired permanent residence before the effective date but are not actually resident in the country on the effective date e.g. because you are on a work posting or studying.
  • Reciprocal healthcare is agreed, so that those who have an S1 or will be eligible for one when they retire will still have their healthcare funded by the UK.  
  • Aggregation of social security contributions is agreed, both before and after the effective date. This covers you if you've worked and paid contributions in more than one EU country.
  • Lifetime export of uprated pensions is agreed - so your UK state pension will be increased annually for the rest of your life just as it would be if you were living in the UK.
  • There is some agreement on recognition of professional qualifications – if you have an individual recognition decision re. your qualification including through automatic recognition eg. doctors, architects, your qualification will continue to be recognised but only in the country where the decision was issued.
  • If you are a ‘frontier worker’ according to EU rules – living in one country and working in one or more other countries at the effective date –  will still have the right to work in each country.
  • Family reunion and future children: certain close family members (spouse, partner, direct ascendants/descendants who are dependant on you) will be able to join you if your rights are protected under the withdrawal agreement. This will apply for the whole of your lifetime. If you have children after the effective date they also are protected under the withdrawal agreement if you and the other parent are also protected or a national of the country you live in.
  • Your rights will be protected for your lifetime via an international treaty, with oversight from the  CJEU. You won't have to worry about changes in the UK or French government or in national immigration policy.

What hasn't been included?

These are the main rights that haven't been included:
  • Continuing freedom of movement – i.e. the ability to move, reside and work in EU27 countries other than our country of residence/frontier working. This is covered only until the end of transition - its continuation is be to discussed in the negotiations on the future relationship as part of the wider question on mobility between UK and EU. It's true to say that the European Commission is taking a hard line on this and sees the protection of our rights as 'protecting our life choices'.
  • The right to provide cross-border services as self-employed people.
  • Some professional qualifications e.g. lawyers practising under their home titles and EU-wide licences and certificates are not covered.
  • The right to be joined by a future spouse or partner - ie one that you weren't in a relationship with on the effective date.
  • The lifetime right to return to the UK with a non-UK spouse or partner under the much more favourable EU law regime (see this article for more about that: https://www.francerights.info/2019/09/so-who-is-surinder-singh-anyway.html).

There are (of course!) a number of questions unanswered and areas where clarification is needed - and it's very likely that more would arise during the period of implementation of our future status as this is a brand new scenario with no precedent. But it's likely to be plainer sailing than the implementation of the no deal ordonnance and decree would be ... and considerably safer too.

In the following article we'll come closer to home and look at what we already know about the implementation of the Withdrawal Agreement here in France. You can read it here: https://www.francerights.info/2019/11/whats-big-deal-part-2-what-do-we-know.html


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