Brexit: Supplementary legislation to the exit treaty between the United Kingdom and the EU regarding citizens’ rights

Overview

The Swedish government has published the memorandum “Supplementary legislation to the exit treaty between the United Kingdom and the EU regarding citizens’ rights” (Ds 2020:5). In the memorandum the Swedish government suggests supplementary legislation to the exit treaty regarding the right for British citizens and their family members to travel into, reside in and work in Sweden after the United Kingdom has left the EU. The proposition, that in summary prescribes a responsibility to apply for residence status, is suggested to enter into force on the 1st of December 2020.

Background

The United Kingdom left the European Union on the 31st of January 2020. The exit treaty that is in place serves to provide a controlled departure from the EU, and amongst other things includes a transition period between the 31st of January 2020 up to and including the 31st of December 2020. During the transition period British citizens and their family members who are third country nationals will continue to have the right to freedom of movement within the EU and vice versa. This means a continued right to travel, live in, work in and study in the EU member states, and a corresponding right for EU citizens in relation to the UK. For more information, see Deloitte's previous Immigration Alerts here.

The exit treaty provides limited guidance with regards to what rules will apply to British citizens, their family members and other people during the transition period. More guidelines will follow during the transition period, after the coming negotiations between the UK and the EU regarding continued cooperation after the 31st of December 2020. The Swedish government has however decided that supplementary legislation to the exit treaty is necessary in certain areas. The government has now published the memorandum “Supplementary legislation to the exit treaty between the United Kingdom and the EU regarding citizens’ rights” (Ds 2020:5)”. In the memorandum, the Swedish government suggests supplementary legislation to the exit treaty regarding the right for British citizens and their family members to continue to travel into, reside in and work in Sweden even after the United Kingdom’s exit from the EU. The legislation is proposed to enter into force on the 1st of December 2020.

Proposals in the memorandum for supplementary legislation

In the memorandum, it is suggested that a new chapter to the Swedish Aliens Act should be established where provisions that are specific to the exit treaty are compiled. The purpose of this chapter is that citizens and government agencies should with ease and clarity be able to find and apply relevant provisions.
In addition to this practical change to the Aliens Act, the memorandum also contains proposals for provisions regarding the right for British citizens to reside in Sweden in the future.

According to the exit treaty, British citizens who reside in a member state for longer than three months must be able to show residence documents, a requirement that has its roots in the requirements that already apply to individuals who are utilizing their EU right of residency in a member state. According to the exit treaty there are two different procedures for issuance of residence documents. The member states must choose one of these to implement; either a constitutive procedure or a declarative procedure. In the memorandum, the pros and cons of both procedures are discussed.

The constitutive procedure requires British citizens to actively apply for a new residence status that brings with it certain rights according to the exit treaty. The exit treaty contains detailed provisions regarding how this procedure should be implemented even if the details are up to the member states’ discretion. The pros of this procedure are described as providing a clear framework for the entire process. There are regulations regarding what documents are required in different situations, guidelines for how the application forms are to be framed and what rules apply during the application period. This simplifies matters for both individuals and government agencies. A con is that it would likely be difficult to reach out to certain vulnerable groups with information on the application process.

A declarative procedure would according to the exit treaty instead mean that British citizens need not apply for residence status to be allowed to stay in a member state. The rights according to the treaty would instead apply automatically. According to the memorandum the benefit of this procedure is that it is simpler and does not require any action from the individual, in contrast to the constitutive procedure.

It is mentioned in the memorandum that the arguments for using the constitutive procedure for issuance of residence documents outweigh the alternatives, and this is the procedure that is suggested to apply to Sweden. This position requires British citizens who are currently living in Sweden or will settle in Sweden during the transition period to apply for residence status to have a continued right to remain in Sweden even after the 31st of December 2020.

Practical consequences of the suggested provisions

• An application for residence status must be made to retain the right to live in Sweden. The application is to be made with the Migration Agency.
• According to the exit treaty’s constitutive procedure, the time frame to submit an application for residence status must be at least six months from the transition period end date for British citizens who are already residing in Sweden before the transition period expires. The time frame can be longer, but not shorter. It is suggested in the memorandum that the timeframe for which an application needs to be submitted to the Migration Agency should be set to ten months. Family members who move to Sweden to be with a British citizen at a later date but who have previously lived together with the British citizen, have 3 months from their arrival to apply, in the case the British citizen’s application timeframe is not yet in effect.
• If an application for residence status is not submitted in time, or if an individual receives a rejection of such an application, the individual will not be able to be granted this status. Residence status is a requirement for a legal stay in Sweden for these individuals.
• If an applicant is approved residence status in Sweden, he or she can claim rights according to the exit treaty. It is necessary however that the requirements for right of residency according to the EU treaty are still met. This means that people who are residing in Sweden in accordance with the rules in the exit treaty must both have residence status, and reside in Sweden based on work, studies, by having sufficient funds for their upkeep, or because they are self-employed. Residence status is therefore necessary but not sufficient on its own to constitute a right to reside in Sweden. During the processing time of the application for residence status the applicant enjoys the rights provided by the exit treaty.
• The Migration Agency will issue proof of residence status to an individual who has been granted residence status according to the exit treaty. Proof of residence status will be provided in the same format as a residence permit card in Sweden. No fee will apply for issuance of such proof.
• The validity period for proof of residence status will be five years from the date it is issued.
• Individuals that have received residence status need to submit their biometrics to receive the proof in the same way as is required when receiving Swedish residence permit cards.

Deloitte’s commentary

Great Britain’s decision to leave the EU has created uncertainty for both companies and employees for a long period, especially for British citizens who are residing in Sweden today. The proposals in the memorandum provide additional clarity on what the rules applicable to British citizens who are currently in Sweden may look like. The suggestions are in line with Great Britain and the EU’s shared view that citizens who already have the right to stay in a member state should be affected as little as possible by the new legislation.

It is important to note however that the proposed legislation is not yet in effect and it is therefore difficult to say what the final legal framework will look like. If the proposal is set into law it will be the responsibility of the Migration Agency to develop the format for the new application process for residence status and to issue proof of the residence status obtained. The memorandum was sent for referral on the 17th of February to various parties that are allowed the opportunity to voice their opinions on the proposals. While this is being done, the EU and the UK will continue to negotiate the rights to stay in EU countries and the UK after the end of the transition period.

Naturally, Deloitte will continue to follow these developments.

Contact us

Anna Sabelström Holmberg
Partner
aholmberg@deloitte.se
+46 73 397 13 04 

Martina Ogenhammar 
Head of Immigration
mogenhammar@deloitte.se
+46 70 080 21 60 

Kaltrina Abazi
Consultant
kabazi@deloitte.se
+46 70 080 32 62

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seimmigration@deloitte.se
+46 75 246 26 00