UK-EU Withdrawal Agreement: Implementation of citizens' rights

The Withdrawal Agreement

Part Two of the UK-EU Withdrawal Agreement (WA) protects the post-Brexit residence rights of EU citizens living in the UK and British citizens living in the EU. It covers people who took up residence before the end of the transition period (31 December 2020).

The Withdrawal Agreement permits either ‘declaratory’ or ‘constitutive’ systems for verifying a person’s protected rights. A declaratory system recognises the rights of eligible citizens by automatic operation of law, whereas a constitutive system requires those eligible to apply for recognition.

The deadline for applications had passed in every country operating a constitutive system by the end of 2021, including the UK, although late applications are still possible if there are “reasonable grounds” and Denmark later extended its deadline to the end of 2023.

The EU Settlement Scheme in the UK

The UK adopted a constitutive system called the EU Settlement Scheme. As of 30 June 2023, 6.2 million people had applied. This exceeded initial expectations, although the number of people who were potentially eligible remains unknown.

To date, there have not been widespread reports of many people experiencing hardship through loss of immigration status after failing to apply by the June 2021 deadline. But the UK has recently tightened the criteria for making late applications, and campaigners continue to raise other issues with the scheme. These include the lack of a physical residence document to prove status once obtained.

The High Court has also ruled that the scheme was operating unlawfully because it envisaged removing some people’s residence rights if they failed to apply twice. The UK is making changes to the scheme to comply with this judgment.

British citizens in EU Member States

The following Member States adopted a declaratory system, granting residence rights automatically to British citizens lawfully resident on their territory at the end of December 2020:

• Bulgaria; the Czech Republic; Germany; Estonia; Ireland; Greece; Spain; Croatia; Italy; Cyprus; Lithuania; Poland; Portugal; and Slovakia.

In some cases, British citizens were still required, as an administrative formality, to register with national authorities and apply for a new residence document in order to certify their new residence status.

The following Member States adopted a constitutive system, meaning British citizens resident at the end of December 2020 needed to apply for a new residence status:

• Belgium; Denmark; France; Latvia; Luxembourg; Hungary; Malta; The Netherlands; Austria; Romania; Slovenia; Finland; and Sweden.

The latest data published by the UK-EU Specialised Committee on Citizens’ Rights established under the WA showed that by the end of 2021, 98% of the estimated 290,000 British citizens resident in constitutive Member States had applied for a new residence status. There were also an estimated 800,000 British citizens in Member States operating declaratory residence systems, with around a third having applied for a new residence document.

British citizens living in EU Member States, and organisations representing them, have raised concerns about difficulties faced in confirming their rights under the WA. These have included concerns about how requirements have been communicated and slow delivery of processes in some Member States, and problems accessing appeal processes where residence applications have been rejected in constitutive systems. In declaratory systems, concerns have been raised about how British citizens are expected to provide evidence of their status (in the absence of the need to apply for a new residence status) and the impact this has on accessing services and other entitlements for residents in the host Member State. Some of these issues were raised by the UK Government and UK Embassies and were addressed by Member States by the end of 2022.

Other issues continue to be raised by groups representing British citizens in 2023, notably by the British in Europe (BiE) voluntary organisation. These include continuing problems with the issuing of new residence cards in Portugal and increasing numbers of refusals of applications in some constitutive countries, including in Sweden and Denmark. In Denmark the deadline for applications was extended after a local campaign and representations by the UK Government. Other problems highlighted in Member States include family reunification and a lack of clarity in some Member States as to the status of children of British citizens and whether they are required to have residence documentation.

The ongoing issues were highlighted by BiE in evidence sessions with the House of Lords European Affairs Committee in 2023 and were raised in correspondence between the Committee and the Home Secretary. The ending of UK Government funding to organisations supporting British citizens in the EU to secure their rights under the WA was also highlighted. The Government has said it is continuing to raise issues related to the implementation of the Citizens’ Rights provisions with the European Commission, and bilaterally with Member States. It has also raised these concerns in the joint UK-EU committees established by the WA.

While the Independent Monitoring Authority has been established in the UK to monitor the UK’s implementation of its Citizens’ Rights obligations under the WA, the European Commission performs this role on behalf of EU Member States in respect of British citizens living in the EU. However, concerns have been raised that the European Commission is not resourced to perform this role and that it cannot resolve issues raised by British citizens in the EU about the implementation of their WA rights in the same way as the Independent Monitoring Authority does for EU citizens in the UK.

The Commission provides guidance to Member States on implementation of the WA Citizens’ Rights provisions and engages with Member States and groups representing British citizens where there are issues with implementation. Complaints over WA implementation can be made to the European Commission, using the standard complaint procedure for any breaches of EU law. The European Commission’s annual report on implementation of the WA Part Two provisions published in November 2022 provided data on complaints received relating to implementation of these provisions in the Member States in 2021.

The Parliamentary Partnership Assembly

This briefing was originally prepared for a breakout session at the second meeting of the UK-EU Parliamentary Partnership Assembly (PPA), held in the UK Parliament on 7-8 November 2022. It has been updated for a breakout session at the fourth meeting of the PPA (and second UK-hosted meeting) held in the UK Parliament on 4-5 December 2023.

The PPA was established under the UK-EU Trade and Cooperation Agreement and includes members of the UK Parliament (MPs and Peers) and Members of the European Parliament.