The rights of citizens under the Withdrawal Agreement: a critical analysis

Part II of the Withdrawal Agreement provides for the rights of UK/EU citizens resident in the EU/UK by the end of the transitional period (Brexit citizens). The stated aim of the negotiators was to ensure that no loss of rights would arise from Brexit for those citizens who had exercised their free movement rights; for this reason the Withdrawal Agreement seeks to provide certainty of residence for the lifetime of those involved, as well as rights equivalent to those currently enjoyed by EU citizens residing in another Member State. The Withdrawal Agreement, however, leaves some gaps in the protection afforded to Brexit citizens, most notably by allowing the residence status to be constitutive of the rights provided by the Withdrawal Agreement, by allowing the public policy derogation to be determined by national law for behaviour that occurred after the end of transition and by failing to recognise the British citizens’ rights to free movement. It is to be hoped that at least some of these gaps will be remedied by national courts and authorities by means of an extensive interpretation of the relevant provisions.