There has been much debate about whether or not Brexit will mean the retention of a single market and its impact upon EU citizens living within the UK and UK citizens living within the EU. But what about the potentially destructive impact which Brexit may have upon personal relationships?
Part 2 of the draft Withdrawal Agreement (19 March 2018) on citizens’ rights has been 'agreed at negotiators’ level'.
Its provisions are intended to protect the rights of UK and EU citizens and 'enable the effective exercise of rights derived from union law and based upon past life choices, where those citizens have exercised free movement rights by the specified date'.
The 'specified date' is 31 December 2020, one that couples who merely 'live together' should bear in mind.
Yes – and no.
UK and EU citizens living in the UK or in an EU member state on 31 December 2020 will have the right to apply for settled status after five years of continuous residence, if this term is completed before or after 31 December 2020. And so, the EU partner of a UK citizen living in the UK or the UK partner of an EU citizen living in one of the EU member states will have the right to remain in the UK or that state if they wish, regardless of marital status.
However, the draft Withdrawal Agreement does not comprehensively protect the right of UK and EU nationals to bring their non-EU partner into the host state post-31 December 2020. There is a significant difference between the rights and protections offered to married couples and civil partners and those who merely 'live together'. Notwithstanding that, cohabiting relationships are increasingly common and have been given statutory recognition in Scotland, at least, such couples appear in certain circumstances to be excluded from the 'comprehensive protection of citizens’ rights' trumpeted in this part of the draft Withdrawal Agreement.
There is no comprehensive protection for these citizens in the draft Withdrawal Agreement.
The draft Withdrawal Agreement safeguards the right of UK and EU citizens living in those states by 31 December 2020 and their respective 'close ones'. This means, for example, that a UK citizen residing in Spain on 31 December 2020 has the right to have close family members, that is a spouse or registered civil partner, and dependent children under the age of 21 and dependent parents remain with them in Spain or to have them join them regardless of their nationality. The same applies to an EU citizen who lives in the UK by the end of the transition period. So the husband, wife or civil partner of the UK or EU citizen can move to the UK or the EU state to join their spouse (along with children and parents) after 31 December 2020 along with children and parents but the same is not true for cohabitants.
The problem lies in the definition of a 'family member'. Whether the individual is a 'family member' of a UK or a EU citizen at the end of 2020 may be critical to residence rights and family reunification in the host state and highlights the distinction between a spouse or civil partner and a “cohabitant”.
A UK citizen living in an EU member state at the end of 2020 has the right to have their family members, 'their non-EU spouse or registered civil partner remain with them in the host state'. (If that person is an EU citizen anyway, they would of course be able to continue staying there in their own right). 'Family members' can join the UK citizen in the EU state, even after the end of the transition period, if they were married or civilly partnered before the end of 2020.
But, where the non-EU partner is not married and is 'merely' a cohabitant, the couple will have to prove that their relationship is 'durable' and existed before the end of the transition period. The host state will then be required to 'facilitate entry and residence' but only after “an extensive examination of personal circumstances” a pre-requisite which is not required from married couples or civil partners.
And so, UK and EU citizens and their respective 'family members' (that is husband or wife, children under 21 and parents) lawfully residing in the host state by 2020 will have the automatic right of residence in the host state. This also applies to those non-EU or UK family members who wish to join the UK or EU citizen in the host state after 2020 on the condition that they have been 'family members' (husband, wife, child or parent ) before the end of the transition period. Such individuals can leave and return to the host state without a visa, work in the host state and have the right to be treated equally with the nationals of that host state.
However, 'non- family members' especially the non UK and non EU cohabitant do not have that automatic right of residence. The right to stay or enter the host state depends on 'extensive examination of personal circumstances' and on the condition that there has been a 'durable relationship' with the UK or EU national before 31 December 2020. There is also ambiguity in the draft Withdrawal Agreement about whether or not such individuals will even then have the right to work in the host state and whether they will in any event have the right to equal treatment.
The draft Withdrawal Agreement does not safeguard the long term future of all UK/EU couples post-Brexit particularly where their partner is not an UK or EU national. The much vaunted protection of “citizens’ past life choices” may then be overstated. Couples who have happily been cohabiting in the UK or in the EU may wish to reflect upon the fact that only by marrying or by registering their civil partnership will their status as a family be protected as well as their right to work and to enjoy equal treatment.