Implications of the Withdrawal Agreement of the UK from the EU

Brexit negotiators unveiled progress on the Draft Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union on 19 March 2018.

Here, Emma Brooksbank, of Freeth Solicitors, examines the document and its possible implications for international staff and students at the University.

Does it tell us anything we did not already know? 

On 19 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 28 February 2018. There was a certain amount of controversy around its publication, particularly in relation to the position set out for the Republic of Ireland.

UK Prime Minister, Theresa May, stated 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 far more of the content is agreed than not, with roughly 75% of the text now coded green and even the Irish border 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

• 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; and

• Northern Ireland will stay in the single market in certain key sector areas. This is referenced as a backstop solution. It is recognised it is a wholly unsatisfactory position for the United Kingdom and is put forward in the absence of any better solution at this stage.

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 UK. Policy declarations were made in summer 2017 that indicated the rights of EEA nationals who were in the United Kingdom on Brexit day in 2019 would be guaranteed and that these people would be able to continue living and working in the UK. European nationals who are currently living lawfully in the UK will be able to continue doing so. In the long term, they will, however, require permission from the UK government to reside here. 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 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 UK, 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 ominously stating there would be no similar guarantees for those arriving after Brexit. The scope of the Withdrawal Agreement includes European nationals who arrive in the UK 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 UK. 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 about the Withdrawal Agreement seemingly being offered to Spain, which could derail the entire Agreement. 

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, as there will be 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 that recruit European nationals is “what happens next?”. It is well and good to have some insight into the transition 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 transition 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 unhindered manner. A clear indication on policy direction and implementation needs to be offered sooner rather than later. 

See the For Staff In Depth section for statements and updates relating to the Brexit process.