Brexit Update: The Withdrawal Agreement

Does it Tell us Anything we did not Already Know?

On the 19th March 2018, David Davis and Michel Barnier, the key negotiators for the United Kingdom and the European Union in the Brexit negotiations, stood before a screen with the 129 pages of the Draft Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union reproduced upon it. These were a sea of green representing the areas upon which text has been agreed at negotiators' level. These should only be subject to technical amendments and can be treated as settled. There was some text highlighted in yellow, which represents areas on which the policy objective is agreed but the final wording has yet been settled upon and then there remains text in white upon which discussions are ongoing. The European Union first published the Draft Withdrawal Agreement on the 28th February 2018. There was a certain amount of controversy around its publication particularly in relation to the position set out for the island of Ireland. Theresa May stated that the proposals threatened the constitutional integrity of the United Kingdom and were proposals to which "no UK prime minister could ever agree”. On reflection however, it appears that far more of the content is agreed than not, with roughly 75% of the text now coded green and even the Irish issue does not seem to be as strained and vexatious as it first appeared.

 

So What do we Now Know?

• The transition period will run to 31 December 2020;
• EU citizens arriving in the UK during the transition period will enjoy the same rights and guarantees as those who arrive before Brexit;
• To the dismay of the UK fishing industry, the UK will remain part of the Common Fisheries Policy until the end of 2020;
• The UK will remain party to existing EU trade deals but significantly will be able to enter into its own trade deals with other countries during the transition period;
• Northern Ireland will stay in the single market in certain key sector areas. This is referenced as a backstop solution. It is recognised that it is a wholly unsatisfactory position for the United Kingdom and is put forward in the absence of any better solution at this stage.

See Actual Agreement Here

 

What Does This Mean for European Nationals Currently Living and Working in the United Kingdom and Those Planning to Come to the UK in the Future?

The Withdrawal Agreement has not changed the situation for European nationals currently in the United Kingdom. Policy declarations were made in summer 2017 which indicated that the rights of EEA nationals who were in the United Kingdom on Brexit day in 2019 would be guaranteed and that they would be able to continue living and working in the United Kingdom. European nationals who are currently living lawfully in the United Kingdom will be able to continue doing so. In the long term, they will however require permission from the UK government to reside in the United Kingdom. This will be in the form of settled status for those who have completed five years’ lawful residence or temporary status for those yet to reach five years’ residence.

This permission-based scheme will be opened towards the end of the 2018; it will be voluntary until the end of the transition period, and will then become mandatory. Once mandatory, a European national will only be living lawfully in the United Kingdom, after an initial period of three months, if they have secured permission from the Home Office to do so. In 2017, the position for European nationals arriving after Brexit was less clear with the Government ambiguously stating that there would be no similar guarantees for those arriving after Brexit. The scope of the Withdrawal Agreement includes European nationals who arrive in the United Kingdom after Brexit and before the end of implementation period, so at any time up to 31 December 2020. It also includes the family members of those European nationals. The Withdrawal Agreement guarantees that European nationals and their family members arriving after Brexit will be afforded the same rights and guarantees as those currently living in the United Kingdom. UK nationals living in other European countries benefit from the same provisions.

 

What Now?

The declarations of agreement will be reassuring to a certain extent, however we cannot escape Michel Barnier’s mantra; “nothing is agreed until everything is agreed”. A solution to the Irish border issue remains elusive with no obvious middle ground. There is jeopardy around the Gibraltar issue with a veto over the Withdrawal Agreement seemingly being offered to Spain, which could derail the entire process. For Europeans in the UK and British nationals in Europe, there remains an overwhelming sense of uncertainty. There may be the offer of rights being protected, however, these are not like for like rights, with a seismic shift from a rights-based to a permission-based system for Europeans in the UK. The most significant unanswered question for Europeans and for UK businesses, universities and public sector organisations who recruit European nationals is “what happens next?” It is well and good to have some insight into the transitional process but this is serving as a distraction from crucial decisions about the future long-term immigration system. A year has passed since the triggering of Article 50. The year to Brexit Day will pass quickly, as will the 20 months of the transitional period to December 2020.

Everyone needs to know whether the Government will introduce an immigration system that will enable the highly skilled and vital European workforce to continue to flow in and out of the UK in hindered manner. A clear indication on policy direction and implementation needs to be offered sooner rather than later.