On 8 December 2017, the European Council concluded that sufficient progress had been made in the first phase of the negotiations. The main principles agreed by the European Commission and UK Government are outlined in their Joint Report (and further explained in the Joint Technical Note) and shall be reflected in the Withdrawal Agreement.
The Common Understanding in the agreement will aim to enable both EU citizens and UK nationals, as well as their respective family members, to continue to exercise their rights derived from EU law in each others’ territories for the rest of their lives, as long as they had moved before the date which the Joint Report calls the ‘specified date’ - the date of the UK’s withdrawal from the EU (this date could be the end of the transitional period).
Citizens without permanent residence (permanent residents are those who have lived for at least 5 years in the host state) will still be protected by the Withdrawal Agreement, and able to acquire permanent residence rights after the UK’s withdrawal. EU citizens and UK nationals, as well as their respective family members, will be able to continue to live, work or study under the same conditions as under EU law, and benefit from the ban on discrimination on grounds of nationality.
Recognition of professional qualifications
It has been set out that those solicitors and European lawyers who have gained the host state title in the member state and vice-versa in the UK, will be able to continue to practice under this title in the host state after Brexit.
Recognition procedures under these directives that are ongoing on the ‘specified date’, in respect of the persons covered, will be completed under Union law and will be grandfathered.
The Law Society has been and will be making the case for continued practice for host state law (including EU law) under home state title (including the right to appear in host state courts), the ease of requalification as a lawyer in another member state and of current border crossing and recognition procedures, to UK Government and EU stakeholders, in the context of the new EU - UK arrangements.
The Negotiating Directives on the transition period
The UK Government set out its view on the principles for a transition period in a speech on 26 January.
On 29 January 2018, the European Council adopted supplementing negotiating Directives, which detail the EU27 position on a transition period. These negotiating Directives provide the European Commission, as the EU negotiator, with a mandate to start discussions with the UK on this matter.
The draft of the legal text on transition – ‘Transitional Arrangements in the Withdrawal Agreement’ - has been published by the European Commission on 7 February. Some of the key points that might be relevant to you are:
- The UK will be bound by EU law for the duration of the transition period (this includes Court of Justice case law and new EU law ‘taking effect’ during transition). The direct effect and supremacy of EU law will still apply.
- The proposed date of the end of the transition period is 31 December 2020. This date can only be extended if that is included in the final agreement.
- All EU citizenship provisions, including practice rights, continue to apply except for those granting the right to vote/stand in local/EU elections in other member states.
- The UK is excluded from EU decision-making and will have no voting rights. On a “case-by-case” basis, UK representatives will be allowed to attend committees, expert groups etc.
- The UK will be bound by international agreements and will not be allowed to sign new agreements in areas where the EU has competence (e.g. trade) unless the EU gives permission to do so.
- EU supervision mechanisms, including judicial oversight by the CJEU, will continue to apply. In footnote 4, the EU sets out its desire to include a provision which would allow it to suspend UK access to parts of the internal market during the transition period.
The Law Society is reviewing the draft text in detail and will respond to the Government and EU stakeholders. You can follow our activities here.
Besides the transition period, in the second phase, the European Commission and UK Government will continue to discuss separation and any outstanding issues from the Joint Report issued under the Withdrawal Agreement and referred to earlier. A final version of the Withdrawal Bill is expected to be completed by October 2018 ready for ratification before end of March 2019.
You can read more about our priorities in our report on Brexit and the law . You can read more about how we have been supporting our members and engaging with key stakeholders since the result of the referendum here, and we provide regular updates on our work here.
 See #51-54 and #58 of the Joint Technical Note expressing the detailed consensus of the UK and EU positions on Citizens’ Rights (the Joint Technical Note