SHARE
COPY LINK

BREXIT

Brexit Withdrawal Agreement: What is it and does it cover me?

As Brexit has dragged many people, mostly unwillingly, into the world of international trade treaties and EU immigration rules, we asked citizens' rights expert Kalba Meadows from British in Europe to explain a few key things, starting with the Withdrawal Agreement.

Brexit Withdrawal Agreement: What is it and does it cover me?
That thing that looks like a menu is probably the most important document ever for Brits in Spain. Photo: AFP

I know that you’re quite probably exhausted and fed up with reading about Brexit and what it means … but don’t click away just yet because this article, one of a series, is about you and how your future life in Spain will pan out.

I can’t stress enough how important it is for us all to know exactly what’s in the Withdrawal Agreement, as it’s the international treaty that guarantees our rights for the rest of our lifetimes. 

You never know when you might need to refer to it: for example, if your boss questions your employment rights, if a local bureaucrat makes life difficult, if you or your children need to go abroad for a period of time.

READ ALSO: Spain launches dedicated Brexit hotline

We’re in an unprecedented situation, where a whole new status is being conferred on 1.2 million Brits living across the EU under a brand new international agreement. And while it gives us – at last – some much-needed certainty, the devil is in the implementation … which means that knowing what the Withdrawal Agreement says about your rights and what you can expect is really important for everyone.

So while it might not be the sexiest of subjects, it’s a pretty essential one to get your head around!

What is the Withdrawal Agreement?

It’s an international agreement between the EU and the UK that sets out how the UK’s EU membership will end. It covers the status and rights of both British citizens in the EU and EU nationals in the UK, the UK’s financial obligations, how the Irish border will continue to function and a transition period.

It doesn’t cover trade or any other aspects of the future relationship between UK and EU.

It came into effect on January 31st 2020. At that point, the transition period began. This lasts until December 31st 2020 (or longer if extended) and is a kind of standstill during which EU law, including freedom of movement rules, still applies to the UK and its citizens.

A key point: the Withdrawal Agreement remains in effect, and your rights will continue to be covered by it for your lifetime, whatever happens with the trade/future relationship negotiations – even if there is ‘no deal’ at all at the end of the transition period.

Where can I read the Withdrawal Agreement?

You can read it here (this will take you directly to Part Two, which deals with citizens’ rights) 

What happens to our rights during the transition period?

During this period our rights effectively remain the same as they are now (except for political and voting rights which ended on January 31st 2020, meaning that we can’t stand or vote in the upcoming municipal elections) and although we actually lost our EU citizenship on Brexit day, we will be treated like EU citizens through the whole of the transition period.

We retain all our current rights to freedom of movement throughout the transition period.

This means that during this period you can

  • Move from the UK to Spain or to any EU country. As long as you are legally resident (see here for how to do that) at the end of the transition period, your future rights will be covered by the Withdrawal Agreement; and

  • Move from Spain to another EU country. If you do this during the transition period and meet the conditions for legal residence in your new host country, your future rights there will be covered by the Withdrawal Agreement (note that your period of residence will begin on the day you arrive in your new country – you would ‘lose’ the years accumulated in Spain).

  • Get your UK professional qualifications recognised under EU rules in Spain. If you have any of these for which you haven’t yet applied for recognition, you should do this now.

How is the Withdrawal Agreement different from Spain's March 2019 Royal decree?

The no deal contingency plans and legislation that Spain and other EU countries produced relate only to a situation in which the UK leaves the EU without a Withdrawal Agreement. This is no longer going to happen, so the legislation has no legal effect and will never come into force.

Under a no deal scenario, we would have defaulted to basic third country national status immediately on exit and our future rights would have been determined by national immigration law here in Spain along with the specific contingency measures in the Royal Decree. 

In this scenario UK citizens across the EU would have been treated differently according to where they lived, as each country’s no deal plans were different. 

The Withdrawal Agreement is different: all its citizens’ rights provisions must be implemented in every EU country, which means that France can’t decide to treat you less favourably than another country would, either now or in the future.

The Withdrawal Agreement protects you under international law

Part 2 of the Withdrawal Agreement contains detailed provisions on citizens’ rights which will apply to all British citizens living in the EU and to EU nationals living in the UK. Every EU state must adhere to it and implement the rights in it.

This means that Spain can’t downgrade your rights from those contained in the Withdrawal Agreement, now or in the future, or impose any extra conditions to obtain or retain your rights.

The Withdrawal Agreement is an international agreement and has what’s known as ‘direct effect’. This means that the rights it contains are directly binding in national law; you can rely on them directly before the courts even if the country where you are living doesn’t apply the provisions of the agreement correctly in national law. 

Any dispute is also subject to the jurisdiction of the European courts.

Who is covered by the Withdrawal Agreement?

You are covered by the Withdrawal Agreement if:

  • You are legally resident in Spain at the end of the transition period, and you continue to live here after this date. ‘Legally resident’ means that you meet the conditions that currently apply to you as an EU citizen exercising your free movement rights – find out more here.

  • You are also covered if you moved to Spain to become legally resident after Brexit day – January 31st 2020 – but before the end of the transition period, and you continue to live here after this date. ​

  • You are a family member of someone who meets either of the above conditions. You’re classed as a family member if your relationship to that person is that of spouse, registered partner, direct descendant (child, grandchild etc) who is under 21 OR who is older than this but dependent, or direct ascending relative (parent, grandparent etc) who is dependent.

  • You are a family member who had a derived right of residence in Spain before the end of transition following either the death or departure of an EU citizen or the divorce, annulment of marriage or termination of a registered partnership with an EU citizen in the past.  This would cover situations where the past relationship was with a British or other EU citizen as well as those where you as a family member are a British or non-EU citizen.

  • If you’re a family member who doesn’t fall within the definition above (for example, a dependent brother, sister or other non-direct family member) but are already resident, or have applied for residence before the end of transition. In the first case, you’ll keep your right of residence; in the second case, the Withdrawal Agreement says that Spain has to ‘facilitate entry and residence’ and this is subject to conditions.

  • If you’re in an unregistered partnership but are in a ‘durable relationship’ and are already resident, your partner will keep their right of residence. If your partner applied for residence before the end of transition or was living outside Spain at the end of transition and applied later, Spain has to ‘facilitate entry and residence’ for that partner in accordance with its national legislation, providing the relationship was already durable at the end of the transition period. This is more stringent than the conditions for other close family members. 

  • If you have children (including by legal adoption) AFTER the end of the transition period they also are covered by the Withdrawal Agreement if (a) you and the other parent are both covered by the WA; or (b) one parent is covered by the WA and the other is a national of Spain; or (c) one parent is covered by the WA and has sole or joint custody rights of the child.

Important: your rights will be covered by the Withdrawal Agreement only in the country where you are living at the end of the transition period. They are not transportable to another EU country after that time.​ 

For a longer version of this article, please see the British in Europe website.

Kalba Meadows works with both British in Europe and France Rights, organisations dedicated to protecting the rights of British citizens living in the EU. Find out more here.

For information on driving, healthcare, travel and pets after Brexit, visit our Brexit section.

Member comments

Log in here to leave a comment.
Become a Member to leave a comment.

BRITS IN EUROPE

Brits in Europe won right to vote for life in UK but questions remain

After years of campaigns and promises British citizens living abroad finally won the lifelong right to vote in UK general elections in April 2022. But campaigners say more needs to be done to allow all those Britons abroad to be able cast their votes easily.

Brits in Europe won right to vote for life in UK but questions remain

What’s in the law?

The Elections Act 2022 introduced several changes to the current legislation on electoral participation. Among these, it removed the rule by which British citizens lose their voting rights in the UK if they have lived abroad for more than 15 years

The new rules also abolished the requirement to have been previously registered in the UK electoral roll to become an overseas voter. In addition, the registration in the electoral roll will now last up to three years instead of only one year.

It is estimated that these changes could increase the number of overseas voter registrations by some 3 million. But the way new measures will be applied in practice is still to be defined.

READ ALSO: ‘Mixed feelings’ – British citizens in Europe finally get right to vote for life

Defining the practicalities

Under the new law, Britons living abroad will have to register to vote in the last place they were registered in the UK. This means that people who have never lived in the UK will be ineligible to vote, regardless of how long they have been overseas, while those who left when they were children will be able to use a parent or guardian’s address.

But given that the UK does not require residents to register with local councils, how to prove previous UK residence? “Typical documents accepted as a proof of residence are Council tax or utilities bills, but not everyone will have them or will have kept them in an international move,” says Fiona Godfrey, co-founder of the British in Europe coalition.

Ballot papers are pictured in stacks in a count centre as part of the 2019 UK general election. (Photo by ANDY BUCHANAN / AFP)

Other questions concern how people will effectively cast their ballot. UK citizens overseas will be able to vote by post or by proxy or in person at their polling station if they are in the UK at the time of the election. However, few people are likely to travel to the UK for an election and in the past there have problems and delays with postal voting.

The Electoral Commission has recommended that overseas electors appoint a proxy to vote on their behalf. But who could that be for people who have been away from their constituency for a long time?

New secondary legislation will have to answer these questions, defining how to be included in the electoral roll and how to exercise the voting right in practice.

According to British in Europe, the government should present draft legislation in the first half of the year so that the parliament can adopt it before summer and registrations of overseas voters can start in the autumn.

British in Europe survey

British in Europe are currently running a survey to understand the difficulties UK citizens abroad may face in the registration and voting process, as well as their intention to participate in elections.

The survey asks for instance which documents people can access to prove their previous residence in the UK, what problems they had voting in the past, and if and how they plan to vote in the future.

“We need to get an up-to-date picture of British citizens living around the world and have information to make recommendations to the government, as it prepares secondary legislation,” Godfrey said. “If millions of people will exercise their voting rights, there will be consequences for council registration offices, post office and authorities that will manage the process, among other things” she argued.

The right to vote concerns only UK parliamentary elections and national referendums, not elections in the devolved administrations of Scotland, Wales and Northern Ireland, or at local level.

The survey is open to UK citizens living anywhere in the world and is available at this link.

SHOW COMMENTS