knowledge 23 November 2018 |

Brexit - Implications of the Withdrawal Agreement for Employees’ Rights and the Common Travel Area

The Withdrawal Agreement

On 14 November 2018, the European Commission and UK negotiators reached a consensus on the entirety of the Withdrawal Agreement providing for the UK’s exit from the EU. The Agreement provides for a transitional period until 31 December 2020 (with the possibility of extension by mutual agreement) and also contains a political declaration outlining the future EU-UK relationship.

The Agreement has led to considerable political upheaval in the UK and it is therefore difficult to predict its safe passage through the British Parliament. However, if ratified, the Withdrawal Agreement brings good news in terms of certainty for Irish entities employing or contracting with UK citizens and residents. 

Residency and Work Rights post-Brexit

Right now, Articles 6 and 7 of the Free Movement Directive (Directive 2004/38/EC) confer a right of residence for up to five years in another Member State on all EU citizens who work or have sufficient financial resources and sickness insurance. Articles 16-18 confer a right of permanent residence on EU citizens who have legally resided in another Member State for five years.

Under the terms of the Withdrawal Agreement UK nationals in the EU27 Member States and EU citizens residing in the UK maintain the entirety of their rights for the transition period and, to a certain extent, after its expiry. EU citizens and UK nationals, as well as their family members, can continue to live, work or study as they currently do and to benefit from the protections of EU law such as the right to equal treatment compared with host state nationals. Decisions for granting new residence status under the Withdrawal Agreement will be made on the basis of the same conditions as those currently set out in the Free Movement Directive (as mentioned above). Thus EU citizens and UK nationals arriving in another EU Member State during the transition period will enjoy the same rights and obligations under the Withdrawal Agreement as those who arrived in the host state before 30 March 2019. Those protected by the Withdrawal Agreement who have not yet acquired permanent residence rights will be able to continue residing in the host state and acquire permanent residency rights following the UK’s withdrawal.

During the transition period, UK nationals and EU citizens will continue to have the right to take up employment and carry out an economic activity as a self-employed person and will keep all their workers’ rights based on Union law. A person covered by the Withdrawal Agreement  who has had his or her professional qualifications recognised in the country where he or she resides or works will be able to continue to rely on the recognition decision in that country. Frontier workers and frontier self-employed workers (i.e. those who are currently nationals of one Member State, reside in another Member State and carry out work in a third Member State) are also protected under the Agreement. This will be particularly welcome news for Irish employers in the vicinity of the border employing EU citizens from countries other than the UK and Ireland where those citizens reside in Northern Ireland. 

As such, if the Withdrawal Agreement is approved by both the UK and the EU, Irish employers should not need to worry about immigration constraints for their UK staff members as long as those staff members arrive in Ireland before the end of the transition period and comply with existing requirements under the Free Movement Directive. The text of the Withdrawal Agreement in relation to citizens’ rights has direct effect and can therefore be relied upon directly by EU citizens in British courts and by UK nationals in the courts of the Member States. In the event of non-compliance by either the EU27 or the UK with any of the terms of the Withdrawal Agreement, the parties may suspend proportionally the application of the Agreement however, the suspension of the provisions on citizens’ rights (which includes residency and work rights) is not possible.

The Common Travel Area and the Irish Border

The Withdrawal Agreement includes a specific Protocol on Ireland and Northern Ireland. Given that the Withdrawal Agreement provides by and large for the maintenance of the status quo in the sense that the UK remains fully bound by Union law until the end of the transition period, the majority of the Protocol will not come into effect until the end of that period.

The Protocol includes all the provisions on how the so-called “backstop” solution for avoiding a hard border between Ireland and Northern Ireland would work. It will apply unless and until it is superseded, in whole or in part, by a subsequent agreement, which it is hoped will be in place by July 2020. In essence, it is an insurance policy that guarantees, whatever the circumstances, that there will be no hard border. The Protocol also provides for protection of all dimensions of the Belfast Agreement as well as North-South cooperation and the all island economy.

Of most relevance to Irish employers is Article 5 of the Protocol which provides for the continuation of the Common Travel Area (the “CTA”). The wording of Article 5 replicates the wording of the Joint Report from the negotiators of the European Union and the United Kingdom Government of 8 December 2017 (the “Joint Report”). Once the transition period comes to an end, the Protocol recognises that the UK and Ireland may continue to make arrangements between themselves in relation to the movement of persons between their territories however such arrangements must “fully respect the rights of natural persons conferred by Union law” and must not affect “the obligations of Ireland under Union law, in particular with respect to free movement for Union citizens and their family members, irrespective of their nationality, to, from and within Ireland”. The backstop provides for regulatory and customs alignment in respect of Northern Ireland which will avoid the need for a hard border if no deal on the future relationship between the EU and UK is reached by the end of the transition period. However, it is difficult to predict with any great certainty how the operation of the CTA would work in practice in that scenario. As the European Commission’s Press Release on the Protocol explains, in the event the backstop comes into effect, while there will be no need for checks or controls on goods or persons crossing the border between Ireland and Northern Ireland, there would be a need for checks on goods travelling from the rest of the UK to Northern Ireland. In addition, a deal on the future relationship may also have implications for the CTA. For the duration of the transition period however the operation of the CTA should continue as normal given that the UK will remain subject to the obligations of Union law.

Also of relevance to employers is the commitment both by the EU and the UK, as part of the backstop (i.e. if a deal on the future relationship is not reached by the end of the transition period), to refrain from reducing the common level of labour and social protection provided by their laws, regulations and practices as a result of the implementation of Union law and ratified international conventions, such as the International Labour Organisation conventions and the Council of Europe’s Social Charter. This includes provisions in relation to fundamental rights at work, such as non-discrimination and equal pay, occupational health and safety, fair working conditions and employment standards, and social rights relating to the restructuring of companies.

Conclusion

While the Withdrawal Agreement is far from being a done-deal and while it is impossible to predict the parameters of any future agreement governing the relationship between the EU and UK beyond the transition period, its ratification by the UK and European Parliaments should be welcome news for Irish employers who can proceed with business as usual, at least as far as immigration and employment rights are concerned.

How can we help?

The Employment, Pensions, Incentives & Benefits Team has significant experience in advising many of Ireland’s major employers on workforce mobility issues as well as employment and immigration issues in the context of Brexit. Please contact us, or your usual contact in McCann FitzGerald, for further information.