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BREXIT news bulletin No. 3

Monday, 9 April, 2018

BREXIT and a summary of the in principle agreement on the withdrawal reached on 08/12/17 and how it affects the protection of a citizen's rights.

The following summary is presented in the context of the main body of Charles Hamer’s clientele; namely UK nationals and their family members already resident in France or who are planning to move to France, or French nationals and their family members who are already resident in the UK.
Preliminary Warning Notes:
The agreement so far is in principle only. It is dependent on agreement being reached over transition and the future relationship (anticipated March 2019). Currently, therefore, the positions described below are not currently guaranteed and could change.
The agreement is also indivisible, to the extent that the 3 main elements covered by it – the protection of citizen’s rights, the status of Northern Ireland and the Financial Settlement - are interdependent. Neither party can subsequently require alteration to one component without this requiring renegotiation on the other two or pull out of one element without cancelling the effects of the other two.
Subject to the above caveats then, the current state of play for ongoing citizen’s rights after the withdrawal is as follows:

1). Scope of Agreement

The agreement regarding the protection of citizen’s rights refers only to UK nationals who are already legally resident  in the EU27 (the “Host State”) or EU27 citizens who are already legally resident in the UK (the “Host State”) or who have already exercised free movement rights at the date of the UK’s withdrawal from the EU.
e.g. A UK national who is already legally resident in France (the “host state”) at the date of withdrawal is covered by this agreement, whereas a UK national not yet resident in France and who has never been resident in the EU by that date, would not be.   
Provisionally then, assuming that the deadline resulting from the delivery of Article 50 is not extended, the withdrawal date will be the 29th March 2019
Family Members:
Family members means any of:
• Spouse,
• Civil partner
• Long term partner
• Dependent child (all children under 21 and any older who remain dependent)
• Dependent parent
Irrespective of their nationality, family members who are not legally resident in the Host State, (i.e. EU 27 or UK depending on the direction of travel), at the date of withdrawal, (29/03/2019 unless otherwise altered), will be entitled to join the household, established in the Host State by reason of at least one other family member (the “Right Holder”) already being legally resident there. This family member entitlement exists for the lifetime of the Right Holder.
The rights of family members not meeting the definition in the list above, (e.g. non dependent children), will be dependent on the national law of the Host State and therefore are not covered by this agreement.
Frontier Workers:
Frontier workers, (individuals who live in one State but commute to work in another State) also fall within scope of the agreement.

2). Administration

The Host State will be able to require an individual claiming rights of residence under the terms of the Withdrawal Agreement to register for such entitlement.
In such instance, evidence of entitlement will be required. Each Host State will be able to determine the exact nature of the evidence to be presented but it will not be more burdensome than is the case presently.
An individual claiming the right of residence will need to show that they are:
a). an EU28 national or a family member of an EU28 national, (e.g. via passport)
b). Employed or self employed in the Host State (e.g. via contract of employment or certificate of business registration)
c).i. Have sufficient resources not to be a burden on the Host State and
c).ii. Have in place comprehensive sickness cover (healthcare) in the Host State, (e.g. justification of income and S1 certificate or live social security number)
An individual claiming entitlement as a family member, rather than in their own right, will need to be able to prove their status relative to the Right Holder.
An individual will have a minimum 2 years from the date of withdrawal to claim the above entitlement. They will need to demonstrate their status prior to the date of withdrawal, (i.e. the status of the individual in the 2 year window is not a determining factor).
3). Retaining the Right of Residence
Once acquired, an individual retains the right to remain for an indefinite period subject to ongoing residence in the Host State.
Additionally, temporary absences of up to 5 consecutive years will be allowed without losing this entitlement.

4). Social Security Co-ordination (Regulations 883/2004 & 987/2009)

The rules laid down by these regulations will continue to apply to:
a). EU27 and UK nationals who are within the scope of the withdrawal agreement by virtue of residence – i.e. UK nationals who are resident in France and French nationals legally resident in the UK prior to 29/03/2019
b). UK nationals who are no longer resident in France but have been previously subject to French social security legislation under the above regulations or their predecessor (Regulation 1408/71)
c). EU27 nationals who are no longer resident in the UK but have been previously subject to UK social security legislation on the same basis.
Family Members:
The status “Family Member” is one where the individual, at the time of withdrawal, (i.e. 29/03/2019), does not have their own entitlement on a stand-alone basis, (e.g. they might not be resident in a Host State at the date of withdrawal).
Such a family member’s access to social security benefits – e.g. healthcare – will therefore be as a dependent of the individual who has acquired rights to reside under the terms of the Withdrawal Agreement. The family member will not have any independent social security rights. Consequently their entitlement will depend on the continuing entitlement of the Rights Holder to who they are linked.
5). Recognition of Professional Qualifications
Recognition, prior to the date of withdrawal, of qualifications granted to individuals covered by the Withdrawal Agreement and frontier workers, will be maintained post the withdrawal date.
Applications for recognition of qualifications, made prior to the withdrawal date, will be completed under process laid down by EU law and, if granted, will be maintained post the withdr