A new draft for the withdrawal agreement published by the Brexit negotiators on 19 March presents its part on citizens’ rights, as ‘agreed at negotiators’ level’. Polly Polak explores how this would change current rights to family reunion, for EU citizens living in the UK and for UK citizens living elsewhere in the EU.

The number of EU citizens living in the UK and UK nationals living in other Member States is hard to gage, but it is generally estimated that there are approximately 3.7 million EU citizens living in the UK, and 1.3 million people born in the UK living in other EU countries. These citizens and their families will be directly affected by Brexit for the simple reason that their right to reside in their host states currently stems from EU law, and will no longer apply after Brexit.

In this light, the protection of these citizens’ rights has been prioritised in the withdrawal negotiations. On 8 December 2017, the two parties concluded a Joint Report, which the European Commission then translated into the formal legal prose of the Draft Withdrawal Agreement of 28 February 2018. This week, the two parties produced an updated draft of it, highlighting the progress made in the negotiations of 16-19 March. It’s Part 2, dedicated to citizens’ rights, is colour-coded as ‘agreed at negotiators’ level’ and subject only to ‘technical legal revisions in the coming weeks.’ This part concerns, in its core, the right of Union citizens and UK nationals, as well as of their family members, to continue to reside, or join them, in their host states.

The Withdrawal Agreement will replace family reunion rights that currently come from EU citizenship and the Citizenship Directive (Directive 2004/38/EC) with rights that come from a new category of citizens; EU nationals residing in the UK and UK nationals in other Member States who have exercised their EU residence rights before Brexit. These citizens are to be removed from EU law and placed under the protection of this international treaty. The European Court of Justice (CJEU) currently takes an expansive approach towards family rights, often deriving rights directly from EU citizenship and reading the rights provided in the Citizenship Directive in the light of citizenship rights. By contrast, under the Withdrawal Agreement there is little assurance that the same generous judicial interpretation will be replicated in national courts—especially in a country intent on curtailing immigration.

The loss of EU citizenship for UK nationals and the fact that EU citizens in the UK will no longer be on EU territory may thus come with the loss of family reunion rights as developed by the CJEU in its relevant case law.

The Surinder Singh cases concern EU citizens who have exercised their right to free movement in another country of the EU (or actually the European Economic Area), where their third-country national family members have been granted residence rights, but who have later returned to the EU citizen’s state of origin. The Citizenship Directive, aimed at encouraging the exercise of free movement of EU citizens, allows their family members, irrespective of their nationality, to accompany them. Note, however, that the Directive only applies to citizens who have moved to an EU (or EEA) country other than their own, with the result that the rights it contains are only granted to Union citizens in a Member State other than that of which they are a national. This raised problems for EU citizens who, on returning to their home states, found that their family members were no longer eligible for residence rights under the Directive but now subject to much stricter national migration controls. When this was brought before the CJEU, the court ruled that this effectively inhibited free movement and was therefore contrary to what is now Article 21 of the Lisbon Treaty (TFEU). Thanks to this longstanding jurisprudence, EU citizens do not lose the rights they were enjoying in their host states if they return home.

Another situation by which EU citizenship can provide family members with residence rights in their home states even where the Citizenship Directive isn’t applicable, was addressed by the Ruiz Zambrano case. This concerns dependent minor children who are nationals of their Member States of residence but are under the care of a third-country national. In accordance with Article 20 TFEU, that Member State, ruled the Court, could not take measures that had the effect of depriving EU citizens of the substance of their rights by forcing them to leave EU territory. In this case this meant the parents had to be given residence rights because if they were forced to leave the EU, their dependent EU citizen child would also have to leave. In light of this case law, we can say that third-country nationals who are the primary carers of an EU citizen can sometimes derive a right of residence from the EU citizenship of this citizen in their home state.

Finally, the Toufik Lounes ruling on dual nationality is equally a case in point. According to UK law, dual nationals who had naturalised in Britain no longer fell under the personal scope of the Citizenship Directive because they were now nationals in their home state and domestic rules should therefore apply. The result in this specific case was that the claimant could not claim residence rights through their family member’s EU citizenship. The Luxembourg Court once again turned to Article 21 TFEU and considered that EU free movement rights would be undermined if an EU citizen who had moved to a member state and acquired its nationality was made to forgo the rights of their Union citizenship. It reasoned that free movement, including the derived rights enjoyed by family members, is also intended to promote the gradual integration of the Union citizen concerned in the society of the host Member State, but that EU citizens could be dissuaded to integrate to the point of obtaining their host state’s nationality if this required forfeiting EU citizenship rights. As a result of this jurisprudence, Union citizens who have naturalised in a host Member State and their family members continue to enjoy the same EU rights.

The big question about Brexit is whether these Treaty-based rights that have been developed by the CJEU will still be extractible via judicial interpretation of the Withdrawal Agreement when UK nationals living in other Member States lose their Union citizenship, or the legal effect of EU citizenship changes for EU citizens living in the UK. More specifically, and in practical terms:

1. Will a UK or EU citizen who has exercised their free movement rights before Brexit be able to return to their home state after Brexit and have their third-country family members protected by the Withdrawal Agreement?
2. Will the non-EU parent or primary caretaker of a child who is a UK citizen in post-Brexit Britain continue to derive a right of residence from the child’s right under the Withdrawal Agreement?
3. Will a UK or EU citizen who has naturalised in their host state but conserved their former nationality have to forgo their third-country family members’ residence rights enshrined in the Withdrawal Agreement?

These questions are important not only to the many ‘mixed-nationality’ families after decades of freedom of movement and the accompanying migration laws. In addition, what about all the EU and UK citizens not included in the new category of ‘Brexit citizens’ (because, as EU citizens, they did not reside in the UK or, as a UK citizen, a member state other than their own before the cut-off date)? They might potentially find themselves in a situation where their only right to family reunion derives from the rights of those who do qualify as Brexit citizens. To make sure all these families can continue to enjoy family life as now, one would need to include them in the Withdrawal Agreement, which will become their sole means of protection. Unfortunately, the Draft Withdrawal Agreement does not codify family reunion rights derived from CJEU case law in that it does not explicitly include under its personal scope returnees, third-country national care-takers or dual nationals. Instead, its Article 9 states, rather generally, that the Withdrawal Agreement applies to: a) Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter; (b) 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 there thereafter; (c) the family members of (a) and (b). With these terms I believe a national Court seized with one of the above questions when applying the Withdrawal Agreement is left with an ample margin of appreciation. Imagine the following situations:

1. An EU or UK citizen has been residing in accordance with EU law in their host state before the end of the transition period and continues to reside there thereafter, but then returns to their home state. It would be down to the court to interpret if the Article 9 condition of ‘continuing to reside’ means the Withdrawal Agreement only applies to the citizen whilst residing in the host state or if it is sufficient that the condition has been met prior to return.
2. A UK citizen who has been exercising their Treaty right to not be removed from EU territory via the recognition of residence rights to their non-EU parent or caretaker. The court will have to decide if the Withdrawal Agreement also includes protection for the ‘reverse’ right of residence of an ex EU citizen who is dependent on their carer’s residence in the UK.
3. An EU or UK citizen has exercised their EU right to reside but continues to do so post-Brexit on the basis of acquiring the nationality of the host state. It will be for the courts to decide if the Agreement is no longer applicable to a dual national in the sense of the Citizenship Directive, or whether naturalisation shouldn’t mean forgoing their Withdrawal Agreement rights.

The draft Withdrawal Agreement in its current form allows for both a broad interpretation that follows previous CJEU case law (although it isn’t strictly applicable because the Treaties and EU citizenship no longer apply), or a more restrictive approach—possibly favoured by UK courts.

It is worth noting, however, that the Agreement will also apply for national courts within the EU, which could seek preliminary rulings (from the CJEU) to help with the interpretation of this unprecedented legal instrument. In the end, the CJEU will therefore also establish its own new case law concerning the personal scope of the Withdrawal Agreement and may have to decide whether it should be understood to include returnees, third-country national caretakers and dual nationals. The CJEU’s interpretation of the Withdrawal Agreement is unlikely to allow for a loss of EU rights taking into account that the objective, as stated in the Joint Report, is to protect the effective exercise of rights derived from Union law based on past life choices. Related to this, paragraph 5 of Article 4 of the Draft states that ‘the United Kingdom’s judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period.’ Not only Member-state courts but also UK courts should therefore respect the decisions by the Court, which is most likely to continue with its expansive approach towards family reunion. It should, however, be noted that this reference to the Court’s case law post-Brexit (Article 4(5)) has so far been colour-coded as white, meaning that it has been proposed by the Union but could still be subject to change. I hope to have conveyed the importance for UK and EU citizens and their families that this paragraph makes it into the final deal.

Polly Ruth Polak (@PolakPolly) is a PhD researcher in Law at the University of Salamanca in Spain. She is a British national who moved to Spain in the 90s as a child, and now lives and works there. If she ever returned to UK, say with a future third-country husband, she could indeed be one of the ‘returnees’ discussed in her post.

Note: The views expressed in this post are those of the author, and not of the UCL European Institute, nor of UCL.

Photo by Annie Spratt on Unsplash