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Jim's Guide - The Brexit Withdrawal Agreement

Posted: Wed Feb 12, 2020 5:46pm
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jimtaylor

jimtaylor

Legendary helpful member

Posts: 5022

Location: Mudamiento

6669 helpful posts

We all know that, during Teresa May's time in office, negotiating committees met to debate the majority of issues that had to be settled as part of a withdrawal from the EU. Many such issues were mutually agreed and details published periodically. It was always recognised that each issue was just part of a whole, and that if there wasn't a final total agreement, then all the prior agreements would be null and void. The majority of issues were agreed, leading to the publication of an overall draft agreement, but this then had to be approved by both UK & EU Parliaments.

Thanks to the intransigence of many MPs, Teresa May was unable to obtain approval from Parliament. As we all know, Boris came into power, completely changed the Northern Ireland section of Teresa May's agreement, leaving the rest unchanged, and ultimately managed to pass a withdrawal law in Parliament. The EU Parliament then gave their approval.

This is where it gets interesting:

Teresa May's draft agreement was 585 pages, and contained many items of interest to us, like a guarantee of continuity of health cover.

Boris's draft agreement was only 64 pages, mainly because it was simply an amendment to Teresa May's agreement, completely changing the Northern Ireland section.

The law that Boris got the UK Parliament to pass - the European Union (Withdrawal Agreement) Act 2020 - is only 108 pages. Nowhere in that law, in spite of checking cross-references, can I find any mention of continuity of health cover or other crucial issues contained in the draft agreement.

The formal agreement passed by the EU Parliament is 181 pages but, again, I cannot find any mention of continuity of health cover or other crucial issues contained in the draft agreement.

If the formal agreement had contained a cross-reference to the draft agreement(s), stating that all their provisions were agreed, then this would have been satisfactory - unfortunately this isn't the case, so many things are now back on the negotiating table.

Because of the many cross-references in the agreement, it can't be understood on its own, and collating all the information has taken quite some time. I've now worked my way through the formal agreement and the cross-referenced documents, and there are numerous items of interest, detailed below. Even though I've only detailed parts, it's turned out to be a lot longer than I originally anticipated.

I could have made the format a lot easier to follow if I'd been able to use tabs, but the forum doesn't support tabs. Italics indicate a direct quote from the EU published Agreement or other documents invoked in that:

PREAMBLE:

RECOGNISING that it is necessary to provide reciprocal protection for Union citizens and for United Kingdom nationals, as well as their respective family members, where they have exercised free movement rights before a date set in this Agreement, and to ensure that their rights under this Agreement are enforceable and based on the principle of non- discrimination;

Comments:

Note that this effectively states that any agreements have to be reciprocal - e.g. if Boris doesn't allow free movement, then the EU won't either.

Note also that there is no mention of what happens after the transition period, indicating that all non-EU citizen regulations may be applicable.

RESOLVED to ensure an orderly withdrawal through various separation provisions aiming to prevent disruption and to provide legal certainty to citizens ..., while not excluding the possibility of relevant separation provisions being superseded by the agreement(s) on the future relationship,

Comment:

In other words, it's not cast in stone, and can conceivably be changed.

ARTICLE 11 - CONTINUITY OF RESIDENCE:

Continuity of residence for the purposes of Articles 9 and 10 shall not be affected by absences as referred to in Article 15(2). The right of permanent residence acquired under Directive 2004/38/EC before the end of the transition period shall not be treated as lost through absence from the host State for a period specified in Article 15(3).

Comment:

I won't bore you with explaining the various cross-references. What it boils down to is that the right of permanent residence after five years of residence won't be affected by temporary absences not exceeding a total of six months a year, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

ARTICLE 13 - RESIDENCE RIGHTS - CLAUSE 1:

1.Union citizens and United Kingdom nationals shall have the right to reside in the host State under the limitations and conditions as set out in Articles 21, 45 or 49 TFEU and in Article 6(1), points (a), (b) or (c) of Article 7(1), Article 7(3), Article 14, Article 16(1) or Article 17(1) of Directive 2004/38/EC.

Initial comments:

The TFEU is the Treaty on the Functioning of the European Union, which is hopefully self-explanatory, and Directive 2004/38/EC is about the right of citizens of the Union and their family members to move and reside freely within the EU.

My first reaction to this clause is that if our residence rights are subject to the conditions of the TFEU & Directive, then UK citizens only need to meet EU citizen financial requirements, and also retain their right to freedom of movement in the EU.

If this is correct, and Spain interpret it this way, then all fears about having to prove an income of 4 x IPREM by those of us who already have residency can be dispelled.

In spite of the numerous cross-references, some of which can be read in different ways, the 'right to reside' etc, could be interpreted to mean that, even after the end of the transition period, the present rules will still apply to anyone who wants to move here.

In order to explain properly what this clause means, and in view of its importance, I'm going to have to include the wording of the cross-referenced clauses - bear with me, or go and do something more interesting - like watching paint dry:

TFEU Article 21:

1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

Comment:

Good news in that it means to me that we have the right to become residents, and to freedom of movement within the EU, albeit subject to existing rules. It does leave scope for further terms and conditions to be imposed.

TFEU Article 45:

1. Freedom of movement for workers shall be secured within the Union.

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

(a) to accept offers of employment actually made;

(b) to move freely within the territory of Member States for this purpose;

(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;

(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.

4. The provisions of this Article shall not apply to employment in the public service.

Comment:

Anyone unfortunate enough to have to work for someone else for a living can work here, and through their social security contributions access public health care.

TFEU Article 49:

Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.

Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 54, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.

Comment:

The same as for Article 45, but this time referring to those who wish to set up a business or are self-employed.

Directive Article 6(1):

Right of residence for up to three months

1.  Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.

Comments:

The implication here is that, as we know, residency has to be requested at the three month point.

Because it refers to 'a period', rather than a cumulative period, I could argue that this implies that you could for example live here for as many 89 day periods in a year as you wish without seeking residency. Whilst this would mean that the Schengen rules wouldn't apply, I don't doubt that this loophole is closed somewhere in other legislation.

Because paragraph 2 of Article 6 is excluded from the agreement, this means that those family members who are not of UK or EU nationality are excluded from the right of three months residence under EU nationality rules, although this is probably covered elsewhere.

Directive Points (a), (b) or (c) of Article 7(1):

Right of residence for more than three months

1.  All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) are workers or self-employed persons in the host Member State; or

(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

(c) are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence

Comments:

This is simply an expression of the requirements required to obtain a residency certificate as an EU citizen.

It still leaves up in the air what will be required as proof of 'sufficient resources'.

By excluding point d of Article 7, it excludes family members, which implies that they might have to prove sufficient finances in their own right.

Directive Article 7(3):

3.  For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:

(a) he/she is temporarily unable to work as the result of an illness or accident;

(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;

(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;

(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.

Comment:

This just gives reassurances to those who work here.

Directive Article 14:

Retention of the right of residence

1.  Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.

Comment:

Article 6(1) refers to three months residence, but excluded 6(2) and thus excluded family members. But this clause includes family members. Strange.

2.  Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein.

In specific cases where there is a reasonable doubt as to whether a Union citizen or his/her family members satisfies the conditions set out in Articles 7,12 and 13, Member States may verify if these conditions are fulfilled. This verification shall not be carried out systematically.

Comment:

I don't really see why, if you meet the residency requirements, any doubt should arise. However, the effective statement that double-checks will not be carried out in all cases gives some reassurance.

3.  An expulsion measure shall not be the automatic consequence of a Union citizen's or his or her family member's recourse to the social assistance system of the host Member State.

4.  By way of derogation from paragraphs 1 and 2 and without prejudice to the provisions of Chapter VI, an expulsion measure may in no case be adopted against Union citizens or their family members if:

(a) the Union citizens are workers or self-employed persons, or

(b) the Union citizens entered the territory of the host Member State in order to seek employment. In this case, the Union citizens and their family members may not be expelled for as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.

Comment:

Some reassurance for those who fit into the categories covered.

This prompted a thought. The preamble to the Directive includes the clause:

As long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance system of the host Member State they should not be expelled.

This clause is not invoked in the agreement, which means that if someone like a retiree who doesn't have the right of permanent residence, and at some point fails to meet residence requirements, even if they don't seek social security assistance, then they could potentially expelled.

Directive Article 16(1):

General rule for Union citizens and their family members

1.  Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.

Comments:

Five continuous years with a residence certificate gives entitlement to permanent residence - no qualifications. As I've said a number of times, those who thought they needed a residency certificate with the word permanent on it were, in my opinion, wasting their time in getting it.

Article 16(2) is excluded, which means that those who are not nationals of the UK or EU member state are excluded from permanent residency under the five year rule in the Directive.

Also excluded are 16(3) and 16(4), which define the length of absence permitted without this counting against the five years, and that permanent residence will be lost due to an absence of more than two years. They may have been excluded because the topic is covered elsewhere.

Directive Article 17(1):

Exemptions for persons no longer working in the host Member State and their family members

1.  By way of derogation from Article 16, the right of permanent residence in the host Member State shall be enjoyed before completion of a continuous period of five years of residence by:

(a) workers or self-employed persons who, at the time they stop working, have reached the age laid down by the law of that Member State for entitlement to an old age pension or workers who cease paid employment to take early retirement, provided that they have been working in that Member State for at least the preceding twelve months and have resided there continuously for more than three years.

If the law of the host Member State does not grant the right to an old age pension to certain categories of self-employed persons, the age condition shall be deemed to have been met once the person concerned has reached the age of 60;

(b) workers or self-employed persons who have resided continuously in the host Member State for more than two years and stop working there as a result of permanent incapacity to work.

If such incapacity is the result of an accident at work or an occupational disease entitling the person concerned to a benefit payable in full or in part by an institution in the host Member State, no condition shall be imposed as to length of residence;

(c) workers or self-employed persons who, after three years of continuous employment and residence in the host Member State, work in an employed or self-employed capacity in another Member State, while retaining their place of residence in the host Member State, to which they return, as a rule, each day or at least once a week.

For the purposes of entitlement to the rights referred to in points (a) and (b), periods of employment spent in the Member State in which the person concerned is working shall be regarded as having been spent in the host Member State.

Periods of involuntary unemployment duly recorded by the relevant employment office, periods not worked for reasons not of the person's own making and absences from work or cessation of work due to illness or accident shall be regarded as periods of employment.

Comment:

This gives entitlement to permanent residency before five years to those who have worked here and meet the criteria specified.

ARTICLE 13 - RESIDENCE RIGHTS - CLAUSES 2 to 4:

2.Family members who are either Union citizens or United Kingdom nationals shall have the right to reside in the host State as set out in Article 21 TFEU and in Article 6(1), point (d) of Article 7(1), Article 12(1) or (3), Article 13(1), Article 14, Article 16(1) or Article 17(3) and (4) of Directive 2004/38/EC, subject to the limitations and conditions set out in those provisions.

3.Family members who are neither Union citizens nor United Kingdom nationals shall have the right to reside in the host State under Article 21 TFEU and as set out in Article 6(2), Article 7(2), Article 12(2) or (3), Article 13(2), Article 14, Article 16(2), Article 17(3) or (4) or Article 18 of Directive 2004/38/EC, subject to the limitations and conditions set out in those provisions.

4.The host State may not impose any limitations or conditions for obtaining, retaining or losing residence rights on the persons referred to in paragraphs 1, 2 and 3, other than those provided for in this Title. There shall be no discretion in applying the limitations and conditions provided for in this Title, other than in favour of the person concerned.

Comment:

This time I'm not going to detail all the cross-references. In spite of the omissions regarding family members that I've referred to earlier, it seems a decision was made to cover that topic in this clause and the next one. The cross-references invoked effectively give family members, irrespective of nationality, the same rights to residency and permanent residency as UK nationals.

ARTICLE 14 - RIGHT OF EXIT AND OF ENTRY:

1.Union citizens and United Kingdom nationals, their respective family members, and other persons, who reside in the territory of the host State in accordance with the conditions set out in this Title shall have the right to leave the host State and the right to enter it, as set out in Article 4(1) and the first subparagraph of Article 5(1) of Directive 2004/38/EC, with a valid passport or national identity card in the case of Union citizens and United Kingdom nationals, and with a valid passport in the case of their respective family members and other persons who are not Union citizens or United Kingdom nationals.

Comment:

I find this a bit confusing as it refers to the right to leave and enter the host state.

However, the cross-referenced Articles 4(1) and 5(1) of the Directive give the right to enter any EU state.

So, can we nip over the border to France if we fancy some snails or foie gras for lunch? I assume so, but I wish it had been clearer.

2.No exit visa, entry visa or equivalent formality shall be required of holders of a valid document issued in accordance with Article 18 or 26.

Comment:

In other words, if you've got residency, then you don't also need a visa. That means that anyone who already has residency doesn't need to apply for a long-term visa. It does however imply that if you intend to move to Spain after the end of the transition period, then you might have to first apply for a long-term visa, which comes with the requirement for a non-lucrative visa to prove an income of 4 x IPREM.

3.Where the host State requires family members who join the Union citizen or United Kingdom national after the end of the transition period to have an entry visa, the host State shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible, and on the basis of an accelerated procedure.

Comment:

The visa may be free but, as above, leaves open the possibility of a requirement to prove 4 x IPREM, or for the person already resident here the need to provide additional income of 1 x IPREM to support that family member.

ARTICLE 15 - RIGHT OF PERMANENT RESIDENCE:

1.Union citizens and United Kingdom nationals, and their respective family members, who have resided legally in the host State in accordance with Union law for a continuous period of 5 years or for the period specified in Article 17 of Directive 2004/38/EC, shall have the right to reside permanently in the host State under the conditions set out in Articles 16, 17 and 18 of Directive 2004/38/EC. Periods of legal residence or work in accordance with Union law before and after the end of the transition period shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.

Comments:

Article 17 just refers to shorter periods than five years for those who work here and stop working for various reasons, and also covers their family members.

Articles 16 gives the right of permanent residence to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.

The important part of the clause is that time spent here as a legal resident before the end of the transition period counts towards the five years required for permanent residency. Those of us with more than five years under our belts immediately qualify.

2.Continuity of residence for the purposes of acquisition of the right of permanent residence shall be determined in accordance with Article 16(3) and Article 21 of Directive 2004/38/EC.

Comments:

Permitted absences are the same as I commented on for Article 11.

3.Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding 5 consecutive years.

Comment:

Clear enough.

ARTICLE 18 - ISSUANCE OF RESIDENCE DOCUMENTS:

1.The host State may require Union citizens or United Kingdom nationals, their respective family members and other persons, who reside in its territory in accordance with the conditions set out in this Title, to apply for a new residence status which confers the rights under this Title and a document evidencing such status which may be in a digital form. Applying for such a residence status shall be subject to the following conditions:

Comment:

'may require' - I'm sure it will be required, but we're still waiting for the Spanish government to publish what we have to do, and when we have to do it.

Note that by referring to a 'new' residence status, it means by implication that you must already have residence status, which to me can only mean that you must already have a residency certificate in order to apply for a residencia card.

(a) the purpose of the application procedure shall be to verify whether the applicant is entitled to the residence rights set out in this Title. Where that is the case, the applicant shall have a right to be granted the residence status and the document evidencing that status;

Comment:

No indication of what we'll have to provide to enable verification.

(b) the deadline for submitting the application shall not be less than 6 months from the end of the transition period, for persons residing in the host State before the end of the transition period.

Comment:

We've got until the middle of next year, and possibly even earlier. It's a pity it doesn't say that the host state should get its bum in gear and enable applications without any delay. As written, it means that Spain can drag its heels.

For persons who have the right to commence residence after the end of the transition period in the host State in accordance with this Title, the deadline for submitting the application shall be 3 months after their arrival or the expiry of the deadline referred to in the first subparagraph, whichever is later.

Comment:

I have to admit that I don't know how to interpret this. Article 18 is about those who are resident here before the end of the transition period, but this particular clause indicates that some people have the right to take up residency here after the end of the transition period. I can only think that it probably means that family members of someone already resident here have the right to move here, and to do so at any time. If anyone else would like to offer their interpretation, then please do so.

A certificate of application for the residence status shall be issued immediately;

Comments:

A receipt for your application may be a way of covering individual member states effecting applications in different ways. I hope however that Spain allow an application to be accompanied by the photographs, and that a fingerprint will be taken at the same time. Otherwise we could be facing multiple visits to the relevant office.

As written, the clause doesn't place any constraint on how long Spain can delay between accepting an application and issuing a TIE card.

(c) the deadline for submitting the application referred to in point (b) shall be extended automatically by 1 year where the Union has notified the United Kingdom, or the United Kingdom has notified the Union, that technical problems prevent the host State either from registering the application or from issuing the certificate of application referred to in point (b). The host State shall publish that notification and shall provide appropriate public information for the persons concerned in good time;

Comment:

Good grief! - we don't want any more delays.

(d) where the deadline for submitting the application referred to in point (b) is not respected by the persons concerned, the competent authorities shall assess all the circumstances and reasons for not respecting the deadline and shall allow those persons to submit an application within a reasonable further period of time if there are reasonable grounds for the failure to respect the deadline;

Comment:

This appears to be condoning the behaviour of the procrastinators and those who bury their heads in the sand. The deadlines are generous enough that there shouldn't be any 'reasonable' grounds. Which makes me remember that I'm looking forward to the day when illegal 'residents' are either not allowed back into Spain, or are deported.

(e) the host State shall ensure that any administrative procedures for applications are smooth, transparent and simple, and that any unnecessary administrative burdens are avoided;

Comment:

In Spain, simple - you must be joking! But I hope to be proved wrong.

(f) application forms shall be short, simple, user friendly and adapted to the context of this Agreement; applications made by families at the same time shall be considered together;

Comment:

Good news.

(g) the document evidencing the status shall be issued free of charge or for a charge not exceeding that imposed on citizens or nationals of the host State for the issuing of similar documents;

Comment:

Free - in Spain - again, you must be joking! At least we won't have to pay more than €12, which is the cost for a Spaniard to renew a DNI.

(h) persons who, before the end of the transition period, hold a valid permanent residence document issued under Article 19 or 20 of Directive 2004/38/EC ... shall have the right to exchange that document within the period referred to in point (b) of this paragraph for a new residence document upon application after a verification of their identity, a criminality and security check in accordance with point (p) of this paragraph and confirmation of their ongoing residence; such new residence documents shall be issued free of charge;

Comments:

Those with permanent residency get it free.

This clause states that a criminal records check will be carried out in all cases, whereas Article 19(3) below says that a criminal records check will not be done as a matter of routine. We'll have to wait and see what they do.

The reference to Article 20 of the Directive means that non-EU family members will have to renew their 'permanent' residency card every ten years, but this will be done automatically.

(j) supporting documents other than identity documents, such as civil status documents, may be submitted in copy. Originals of supporting documents may be required only in specific cases where there is a reasonable doubt as to the authenticity of the supporting documents submitted;

Comment:

No mention of, e.g. a marriage certificate, requiring an authorised translation.

(k) the host State may only require Union citizens and United Kingdom nationals to present, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in Article 8(3) of Directive 2004/38/EC:

(i) where they reside in the host State in accordance with point (a) of Article 7(1) of Directive 2004/38/EC as workers or self-employed, a confirmation of engagement from the employer or a certificate of employment, or proof that they are selfemployed;

Comment:

Even though someone working here had to prove that status when they originally applied for a residency certificate, they will have to prove it again.

(ii) where they reside in the host State in accordance with point (b) of Article 7(1) of Directive 2004/38/EC as economically inactive persons, evidence that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host State during their period of residence and that they have comprehensive sickness insurance cover in the host State; or

Comment:

At this point I started to worry about now being required to prove 4 x IPREM, but read on.

With regard to the condition of sufficient resources, Article 8(4) of Directive 2004/38/EC shall apply;

Comment:

Article 8(4) of the Directive says:

Member States may not lay down a fixed amount which they regard as "sufficient resources" but they must take into account the personal situation of the person concerned. In all cases this amount shall not be higher than the threshold below which nationals of the host Member State become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host Member State.

Excellent news - it dispels the possibility of us existing residents needing to prove 4 x IPREM. It does mean we'll have to provide proof of finances, so we'll have to wait and see whether the national police want either or both of regular income and bank balance. Perhaps it's time to watch the exchange rate and fatten up your bank balance in good time. There's still a chance that we may not need to provide finances, as the start of clause (k) above says 'the host State may only require' - note the use of 'may' rather than 'shall'.

(l) the host State may only require family members who fall under point (e)(i) of Article 10(1) or Article 10(2) or (3) of this Agreement and who reside in the host State in accordance with point (d) of Article 7(1) or Article 7(2) of Directive 2004/38/EC to present, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in Article 8(5) or 10(2) of Directive 2004/38/EC:

(i) a document attesting to the existence of a family relationship or registered partnership;

(ii) the registration certificate or, in the absence of a registration system, any other proof that the Union citizen or the United Kingdom national with whom they reside actually resides in the host State;

(iii) for direct descendants who are under the age of 21 or who are dependants and dependent direct relatives in the ascending line, and for those of the spouse or registered partner, documentary evidence that the conditions set out in point (c) or (d) of Article 2(2) of Directive 2004/38/EC are fulfilled;

(iv) for the persons referred to in Article 10(2) or (3) of this Agreement, a document issued by the relevant authority in the host State in accordance with Article 3(2) of Directive 2004/38/EC. With regard to the condition of sufficient resources as concerns family members who are themselves Union citizens or United Kingdom nationals, Article 8(4) of Directive 2004/38/EC shall apply;

Comment:

It looks a bit off-putting, but what it boils down to is that family members will only need to provide the same proofs as required under the pre-Brexit rules.

(m) the host State may only require family members who fall under point (e)(ii) of Article 10(1) or Article 10(4) of this Agreement to present, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in Articles 8(5) and 10(2) of Directive 2004/38/EC:

(i) a document attesting to the existence of a family relationship or of a registered partnership;

(ii) the registration certificate or, in the absence of a registration system, any other proof of residence in the host State of the Union citizen or of the United Kingdom nationals whom they are joining in the host State;

(iii) for spouses or registered partners, a document attesting to the existence of a family relationship or a registered partnership before the end of the transition period;

(iv) for direct descendants who are under the age of 21 or who are dependants and dependent direct relatives in the ascending line and those of the spouse or registered partner, documentary evidence that they were related to Union citizens or United Kingdom nationals before the end of the transition period and fulfil the conditions set out in point (c) or (d) of Article 2(2) of Directive 2004/38/EC relating to age or dependence;

(v) for the persons referred to in Article 10(4) of this Agreement, proof that a durable relationship with Union citizens or United Kingdom nationals existed before the end of the transition period and continues to exist thereafter;

Comment:

Similar to the previous clause - no new requirements.

(o) the competent authorities of the host State shall help the applicants to prove their eligibility and to avoid any errors or omissions in their applications; they shall give the applicants the opportunity to furnish supplementary evidence and to correct any deficiencies, errors or omissions;

Comment:

I hope the staff at the national police stations see this one! Seriously, it implies that if an application is rejected, then you can go back again without having to restart the procedure.

(p) criminality and security checks may be carried out systematically on applicants, with the exclusive aim of verifying whether the restrictions set out in Article 20 of this Agreement may be applicable. For that purpose, applicants may be required to declare past criminal convictions which appear in their criminal record in accordance with the law of the State of conviction at the time of the application. The host State may, if it considers this essential, apply the procedure set out in Article 27(3) of Directive 2004/38/EC with respect to enquiries to other States regarding previous criminal records;

Comment:

'may' rather than 'shall', but indicating that if they opt to do them, criminal records checks will be carried out on everyone.

(q) the new residence document shall include a statement that it has been issued in accordance with this Agreement;

Comment:

TIEs already come in a variety of flavours and in six different colours. Hazarding a guess, and assuming we get TIEs and not something different, then I think yellow is a strong contender.

(r) the applicant shall have access to judicial and, where appropriate, administrative redress procedures in the host State against any decision refusing to grant the residence status. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed decision is based. Such redress procedures shall ensure that the decision is not disproportionate.

Comment:

All this means is that you have the right to appeal against a refusal to grant residencia.

2.During the period referred to in point (b) of paragraph 1 of this Article and its possible oneyear extension under point (c) of that paragraph, all rights provided for in this Part shall be deemed to apply to Union citizens or United Kingdom nationals, their respective family members, and other persons residing in the host State, in accordance with the conditions and subject to the restrictions set out in Article 20.

Comment:

All this is saying is that the terms and conditions in the Agreement apply throughout the time allowed for residency applications.

There is an implication that if you don't get your application in on time, then the rights granted in the Agreement do not apply, and that non-EU national rules would apply.

4.Where a host State has chosen not to require Union citizens or United Kingdom nationals, their family members, and other persons, residing in its territory in accordance with the conditions set out in this Title, to apply for the new residence status referred to in paragraph 1 as a condition for legal residence, those eligible for residence rights under this Title shall have the right to receive, in accordance with the conditions set out in Directive 2004/38/EC, a residence document, which may be in a digital form, that includes a statement that it has been issued in accordance with this Agreement.

Comment:

I can't envisage Spain not requiring us to transition to TIEs, but again we're waiting for the authorities to publish what is required.

ARTICLE 19 - ISSUANCE OF RESIDENCE DOCUMENTS DURING THE TRANSITION PERIOD:

1.During the transition period, a host State may allow applications for a residence status or residence document as referred to in Article 18(1) and (4) to be made voluntarily from the date of entry into force of this Agreement.

Comment:

We're back to the 'may' and 'shall' problem again. If it had said 'shall', I'd have now been standing voluntarily outside the cop shop in Orihuela and demanding that they issue me with a TIE.

2.Decisions to accept or refuse such applications shall be taken in accordance with Article 18(1) and (4). Decisions under Article 18(1) shall have no effect until after the end of the transition period.

Comments:

In other words, even if your application is refused, you have the right to stay here until the end of the transition period.

Note that 'after the end of the transition period' leaves some scope for determining when your residency certificate becomes null and void.

3.If an application under Article 18(1) is accepted before the end of the transition period, the host State may not withdraw the decision granting the residence status before the end of the transition period on any grounds other than those set out in Chapter VI and Article 35 of Directive 2004/38/EC.

Comments:

What this boils down to is that once a residencia application is approved, then it can't be withdrawn unless you prove to be a danger to public security or health.

It also enables the authorities to carry out a criminal records check, if they consider this necessary. According to the Directive, a criminal records check cannot be done as a matter of routine.

4.If an application is refused before the end of the transition period, the applicant may apply again at any time before the expiry of the period set out in point (b) of Article 18(1).

Comment:

In other words, if your residencia application is refused, you can reapply at any time up to six months after the end of the transition period.

5. Without prejudice to paragraph 4, the redress procedures under point (r) of Article 18(1) shall be available from the date of any decision to refuse an application referred to in paragraph 2 of this Article.

Comment:

All this means is that you have the right to appeal against a refusal to grant residencia.

ARTICLE 23 - EQUAL TREATMENT:

1.In accordance with Article 24 of Directive 2004/38/EC, subject to the specific provisions provided for in this Title and Titles I and IV of this Part, all Union citizens or United Kingdom nationals residing on the basis of this Agreement in the territory of the host State shall enjoy equal treatment with the nationals of that State within the scope of this Part. The benefit of this right shall be extended to those family members of Union citizens or United Kingdom nationals who have the right of residence or permanent residence.

Comment:

This just confirms that both pre- and post- the transition period, the way we are treated will not alter.

Perhaps being treated the same as the Spanish means we can park wherever we want!

ARTICLE 126 TRANSITION PERIOD:

There shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.

Article 132 - Extension of the transition period:

1.Notwithstanding Article 126, the Joint Committee may, before 1 July 2020, adopt a single decision extending the transition period for up to 1 or 2 years.

Comment:

Heaven forbid!

ARTICLE 164 - JOINT COMMITTEE:

1.A Joint Committee, comprising representatives of the Union and of the United Kingdom, is hereby established. The Joint Committee shall be co-chaired by the Union and the United Kingdom.

5.The Joint Committee may:

(d) except in relation to Parts One, Four and Six, until the end of the fourth year following the end of the transition period, adopt decisions amending this Agreement, provided that such amendments are necessary to correct errors, to address omissions or other deficiencies, or to address situations unforeseen when this Agreement was signed, and provided that such decisions may not amend the essential elements of this Agreement;

Comment:

It does say 'may' rather than 'shall', but it does mean that things might drag on until the end of 2024 before it's all done and dusted.

ARTICLE 166 - DECISIONS AND RECOMMENDATIONS:

1.The Joint Committee shall, for the purposes of this Agreement, have the power to adopt decisions in respect of all matters for which this Agreement so provides and to make appropriate recommendations to the Union and the United Kingdom.

2.The decisions adopted by the Joint Committee shall be binding on the Union and the United Kingdom, and the Union and the United Kingdom shall implement those decisions. They shall have the same legal effect as this Agreement.

3.The Joint Committee shall adopt its decisions and make its recommendations by mutual consent.

Comments:

If the committee decisions are going to be binding, is Boris going to sit on the committee all the time, or risk UK committee members agreeing to something he doesn't like but has to comply with?

I don't like the simple reference to mutual consent, and would have preferred it to state whether a majority vote on a decision would suffice, or whether it had to be unanimous.

I hope the committee will work its way through the prior draft agreement, and simply ratify the mutual decisions made in that, rather than debating every individual point over again. If they do, such a simple rubber-stamping exercise could lead to speedy decisions on matters that concern us.

ARTICLE 185 - ENTRY INTO FORCE AND APPLICATION:

This Agreement shall enter into force on one of the following dates, whichever is the earliest:

(a) the day following the end of the period provided for in Article 50(3) TEU, as extended by the European Council in agreement with the United Kingdom, provided that, prior to that date, the depositary of this Agreement has received the written notifications by the Union and the United Kingdom regarding the completion of the necessary internal procedures;

Comments:

Article 50 is the infamous withdrawal clause, and TEU stands for the Treaty on European Union.

The Withdrawal Agreement is now in force.

CONCLUSIONS:

Apart from residency, the Agreement effectively does nothing for us yet. It's the same old Brexit story - hurry up and wait.

I'm waiting, with interest, to find out:

When we can apply for TIEs.

Whether we'll be able to travel to other EU countries without any hassle.

Whether we'll have continuing health cover, and whether the S1 scheme will continue into the future.

Whether applicants after the end of the transition period will need to prove an income of 4 x IPREM.

If you've managed to read through to this point, congratulations - go and pour yourself an alcoholic beverage.


LeckyLes

LeckyLes

Super helpful member

Wed Feb 12, 2020 6:15pm

Posts: 1251

Location: Cabo Roig

1166 helpful posts

Posted: Wed Feb 12, 2020 6:15pm

jimtaylor wrote on Wed Feb 12, 2020 5:46pm:

We all know that, during Teresa May's time in office, negotiating committees met to debate the majority of issues that had to be settled as part of a withdrawal from the EU. Many such issues were mutually agreed and details published periodically. It was always recognised that each issue was j...

...ust part of a whole, and that if there wasn't a final total agreement, then all the prior agreements would be null and void. The majority of issues were agreed, leading to the publication of an overall draft agreement, but this then had to be approved by both UK & EU Parliaments.

Thanks to the intransigence of many MPs, Teresa May was unable to obtain approval from Parliament. As we all know, Boris came into power, completely changed the Northern Ireland section of Teresa May's agreement, leaving the rest unchanged, and ultimately managed to pass a withdrawal law in Parliament. The EU Parliament then gave their approval.

This is where it gets interesting:

Teresa May's draft agreement was 585 pages, and contained many items of interest to us, like a guarantee of continuity of health cover.

Boris's draft agreement was only 64 pages, mainly because it was simply an amendment to Teresa May's agreement, completely changing the Northern Ireland section.

The law that Boris got the UK Parliament to pass - the European Union (Withdrawal Agreement) Act 2020 - is only 108 pages. Nowhere in that law, in spite of checking cross-references, can I find any mention of continuity of health cover or other crucial issues contained in the draft agreement.

The formal agreement passed by the EU Parliament is 181 pages but, again, I cannot find any mention of continuity of health cover or other crucial issues contained in the draft agreement.

If the formal agreement had contained a cross-reference to the draft agreement(s), stating that all their provisions were agreed, then this would have been satisfactory - unfortunately this isn't the case, so many things are now back on the negotiating table.

Because of the many cross-references in the agreement, it can't be understood on its own, and collating all the information has taken quite some time. I've now worked my way through the formal agreement and the cross-referenced documents, and there are numerous items of interest, detailed below. Even though I've only detailed parts, it's turned out to be a lot longer than I originally anticipated.

I could have made the format a lot easier to follow if I'd been able to use tabs, but the forum doesn't support tabs. Italics indicate a direct quote from the EU published Agreement or other documents invoked in that:

PREAMBLE:

RECOGNISING that it is necessary to provide reciprocal protection for Union citizens and for United Kingdom nationals, as well as their respective family members, where they have exercised free movement rights before a date set in this Agreement, and to ensure that their rights under this Agreement are enforceable and based on the principle of non- discrimination;

Comments:

Note that this effectively states that any agreements have to be reciprocal - e.g. if Boris doesn't allow free movement, then the EU won't either.

Note also that there is no mention of what happens after the transition period, indicating that all non-EU citizen regulations may be applicable.

RESOLVED to ensure an orderly withdrawal through various separation provisions aiming to prevent disruption and to provide legal certainty to citizens ..., while not excluding the possibility of relevant separation provisions being superseded by the agreement(s) on the future relationship,

Comment:

In other words, it's not cast in stone, and can conceivably be changed.

ARTICLE 11 - CONTINUITY OF RESIDENCE:

Continuity of residence for the purposes of Articles 9 and 10 shall not be affected by absences as referred to in Article 15(2). The right of permanent residence acquired under Directive 2004/38/EC before the end of the transition period shall not be treated as lost through absence from the host State for a period specified in Article 15(3).

Comment:

I won't bore you with explaining the various cross-references. What it boils down to is that the right of permanent residence after five years of residence won't be affected by temporary absences not exceeding a total of six months a year, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

ARTICLE 13 - RESIDENCE RIGHTS - CLAUSE 1:

1.Union citizens and United Kingdom nationals shall have the right to reside in the host State under the limitations and conditions as set out in Articles 21, 45 or 49 TFEU and in Article 6(1), points (a), (b) or (c) of Article 7(1), Article 7(3), Article 14, Article 16(1) or Article 17(1) of Directive 2004/38/EC.

Initial comments:

The TFEU is the Treaty on the Functioning of the European Union, which is hopefully self-explanatory, and Directive 2004/38/EC is about the right of citizens of the Union and their family members to move and reside freely within the EU.

My first reaction to this clause is that if our residence rights are subject to the conditions of the TFEU & Directive, then UK citizens only need to meet EU citizen financial requirements, and also retain their right to freedom of movement in the EU.

If this is correct, and Spain interpret it this way, then all fears about having to prove an income of 4 x IPREM by those of us who already have residency can be dispelled.

In spite of the numerous cross-references, some of which can be read in different ways, the 'right to reside' etc, could be interpreted to mean that, even after the end of the transition period, the present rules will still apply to anyone who wants to move here.

In order to explain properly what this clause means, and in view of its importance, I'm going to have to include the wording of the cross-referenced clauses - bear with me, or go and do something more interesting - like watching paint dry:

TFEU Article 21:

1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

Comment:

Good news in that it means to me that we have the right to become residents, and to freedom of movement within the EU, albeit subject to existing rules. It does leave scope for further terms and conditions to be imposed.

TFEU Article 45:

1. Freedom of movement for workers shall be secured within the Union.

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

(a) to accept offers of employment actually made;

(b) to move freely within the territory of Member States for this purpose;

(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;

(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.

4. The provisions of this Article shall not apply to employment in the public service.

Comment:

Anyone unfortunate enough to have to work for someone else for a living can work here, and through their social security contributions access public health care.

TFEU Article 49:

Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.

Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 54, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.

Comment:

The same as for Article 45, but this time referring to those who wish to set up a business or are self-employed.

Directive Article 6(1):

Right of residence for up to three months

1.  Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.

Comments:

The implication here is that, as we know, residency has to be requested at the three month point.

Because it refers to 'a period', rather than a cumulative period, I could argue that this implies that you could for example live here for as many 89 day periods in a year as you wish without seeking residency. Whilst this would mean that the Schengen rules wouldn't apply, I don't doubt that this loophole is closed somewhere in other legislation.

Because paragraph 2 of Article 6 is excluded from the agreement, this means that those family members who are not of UK or EU nationality are excluded from the right of three months residence under EU nationality rules, although this is probably covered elsewhere.

Directive Points (a), (b) or (c) of Article 7(1):

Right of residence for more than three months

1.  All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) are workers or self-employed persons in the host Member State; or

(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

(c) are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence

Comments:

This is simply an expression of the requirements required to obtain a residency certificate as an EU citizen.

It still leaves up in the air what will be required as proof of 'sufficient resources'.

By excluding point d of Article 7, it excludes family members, which implies that they might have to prove sufficient finances in their own right.

Directive Article 7(3):

3.  For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:

(a) he/she is temporarily unable to work as the result of an illness or accident;

(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;

(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;

(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment.

Comment:

This just gives reassurances to those who work here.

Directive Article 14:

Retention of the right of residence

1.  Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.

Comment:

Article 6(1) refers to three months residence, but excluded 6(2) and thus excluded family members. But this clause includes family members. Strange.

2.  Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein.

In specific cases where there is a reasonable doubt as to whether a Union citizen or his/her family members satisfies the conditions set out in Articles 7,12 and 13, Member States may verify if these conditions are fulfilled. This verification shall not be carried out systematically.

Comment:

I don't really see why, if you meet the residency requirements, any doubt should arise. However, the effective statement that double-checks will not be carried out in all cases gives some reassurance.

3.  An expulsion measure shall not be the automatic consequence of a Union citizen's or his or her family member's recourse to the social assistance system of the host Member State.

4.  By way of derogation from paragraphs 1 and 2 and without prejudice to the provisions of Chapter VI, an expulsion measure may in no case be adopted against Union citizens or their family members if:

(a) the Union citizens are workers or self-employed persons, or

(b) the Union citizens entered the territory of the host Member State in order to seek employment. In this case, the Union citizens and their family members may not be expelled for as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.

Comment:

Some reassurance for those who fit into the categories covered.

This prompted a thought. The preamble to the Directive includes the clause:

As long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance system of the host Member State they should not be expelled.

This clause is not invoked in the agreement, which means that if someone like a retiree who doesn't have the right of permanent residence, and at some point fails to meet residence requirements, even if they don't seek social security assistance, then they could potentially expelled.

Directive Article 16(1):

General rule for Union citizens and their family members

1.  Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.

Comments:

Five continuous years with a residence certificate gives entitlement to permanent residence - no qualifications. As I've said a number of times, those who thought they needed a residency certificate with the word permanent on it were, in my opinion, wasting their time in getting it.

Article 16(2) is excluded, which means that those who are not nationals of the UK or EU member state are excluded from permanent residency under the five year rule in the Directive.

Also excluded are 16(3) and 16(4), which define the length of absence permitted without this counting against the five years, and that permanent residence will be lost due to an absence of more than two years. They may have been excluded because the topic is covered elsewhere.

Directive Article 17(1):

Exemptions for persons no longer working in the host Member State and their family members

1.  By way of derogation from Article 16, the right of permanent residence in the host Member State shall be enjoyed before completion of a continuous period of five years of residence by:

(a) workers or self-employed persons who, at the time they stop working, have reached the age laid down by the law of that Member State for entitlement to an old age pension or workers who cease paid employment to take early retirement, provided that they have been working in that Member State for at least the preceding twelve months and have resided there continuously for more than three years.

If the law of the host Member State does not grant the right to an old age pension to certain categories of self-employed persons, the age condition shall be deemed to have been met once the person concerned has reached the age of 60;

(b) workers or self-employed persons who have resided continuously in the host Member State for more than two years and stop working there as a result of permanent incapacity to work.

If such incapacity is the result of an accident at work or an occupational disease entitling the person concerned to a benefit payable in full or in part by an institution in the host Member State, no condition shall be imposed as to length of residence;

(c) workers or self-employed persons who, after three years of continuous employment and residence in the host Member State, work in an employed or self-employed capacity in another Member State, while retaining their place of residence in the host Member State, to which they return, as a rule, each day or at least once a week.

For the purposes of entitlement to the rights referred to in points (a) and (b), periods of employment spent in the Member State in which the person concerned is working shall be regarded as having been spent in the host Member State.

Periods of involuntary unemployment duly recorded by the relevant employment office, periods not worked for reasons not of the person's own making and absences from work or cessation of work due to illness or accident shall be regarded as periods of employment.

Comment:

This gives entitlement to permanent residency before five years to those who have worked here and meet the criteria specified.

ARTICLE 13 - RESIDENCE RIGHTS - CLAUSES 2 to 4:

2.Family members who are either Union citizens or United Kingdom nationals shall have the right to reside in the host State as set out in Article 21 TFEU and in Article 6(1), point (d) of Article 7(1), Article 12(1) or (3), Article 13(1), Article 14, Article 16(1) or Article 17(3) and (4) of Directive 2004/38/EC, subject to the limitations and conditions set out in those provisions.

3.Family members who are neither Union citizens nor United Kingdom nationals shall have the right to reside in the host State under Article 21 TFEU and as set out in Article 6(2), Article 7(2), Article 12(2) or (3), Article 13(2), Article 14, Article 16(2), Article 17(3) or (4) or Article 18 of Directive 2004/38/EC, subject to the limitations and conditions set out in those provisions.

4.The host State may not impose any limitations or conditions for obtaining, retaining or losing residence rights on the persons referred to in paragraphs 1, 2 and 3, other than those provided for in this Title. There shall be no discretion in applying the limitations and conditions provided for in this Title, other than in favour of the person concerned.

Comment:

This time I'm not going to detail all the cross-references. In spite of the omissions regarding family members that I've referred to earlier, it seems a decision was made to cover that topic in this clause and the next one. The cross-references invoked effectively give family members, irrespective of nationality, the same rights to residency and permanent residency as UK nationals.

ARTICLE 14 - RIGHT OF EXIT AND OF ENTRY:

1.Union citizens and United Kingdom nationals, their respective family members, and other persons, who reside in the territory of the host State in accordance with the conditions set out in this Title shall have the right to leave the host State and the right to enter it, as set out in Article 4(1) and the first subparagraph of Article 5(1) of Directive 2004/38/EC, with a valid passport or national identity card in the case of Union citizens and United Kingdom nationals, and with a valid passport in the case of their respective family members and other persons who are not Union citizens or United Kingdom nationals.

Comment:

I find this a bit confusing as it refers to the right to leave and enter the host state.

However, the cross-referenced Articles 4(1) and 5(1) of the Directive give the right to enter any EU state.

So, can we nip over the border to France if we fancy some snails or foie gras for lunch? I assume so, but I wish it had been clearer.

2.No exit visa, entry visa or equivalent formality shall be required of holders of a valid document issued in accordance with Article 18 or 26.

Comment:

In other words, if you've got residency, then you don't also need a visa. That means that anyone who already has residency doesn't need to apply for a long-term visa. It does however imply that if you intend to move to Spain after the end of the transition period, then you might have to first apply for a long-term visa, which comes with the requirement for a non-lucrative visa to prove an income of 4 x IPREM.

3.Where the host State requires family members who join the Union citizen or United Kingdom national after the end of the transition period to have an entry visa, the host State shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible, and on the basis of an accelerated procedure.

Comment:

The visa may be free but, as above, leaves open the possibility of a requirement to prove 4 x IPREM, or for the person already resident here the need to provide additional income of 1 x IPREM to support that family member.

ARTICLE 15 - RIGHT OF PERMANENT RESIDENCE:

1.Union citizens and United Kingdom nationals, and their respective family members, who have resided legally in the host State in accordance with Union law for a continuous period of 5 years or for the period specified in Article 17 of Directive 2004/38/EC, shall have the right to reside permanently in the host State under the conditions set out in Articles 16, 17 and 18 of Directive 2004/38/EC. Periods of legal residence or work in accordance with Union law before and after the end of the transition period shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.

Comments:

Article 17 just refers to shorter periods than five years for those who work here and stop working for various reasons, and also covers their family members.

Articles 16 gives the right of permanent residence to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.

The important part of the clause is that time spent here as a legal resident before the end of the transition period counts towards the five years required for permanent residency. Those of us with more than five years under our belts immediately qualify.

2.Continuity of residence for the purposes of acquisition of the right of permanent residence shall be determined in accordance with Article 16(3) and Article 21 of Directive 2004/38/EC.

Comments:

Permitted absences are the same as I commented on for Article 11.

3.Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding 5 consecutive years.

Comment:

Clear enough.

ARTICLE 18 - ISSUANCE OF RESIDENCE DOCUMENTS:

1.The host State may require Union citizens or United Kingdom nationals, their respective family members and other persons, who reside in its territory in accordance with the conditions set out in this Title, to apply for a new residence status which confers the rights under this Title and a document evidencing such status which may be in a digital form. Applying for such a residence status shall be subject to the following conditions:

Comment:

'may require' - I'm sure it will be required, but we're still waiting for the Spanish government to publish what we have to do, and when we have to do it.

Note that by referring to a 'new' residence status, it means by implication that you must already have residence status, which to me can only mean that you must already have a residency certificate in order to apply for a residencia card.

(a) the purpose of the application procedure shall be to verify whether the applicant is entitled to the residence rights set out in this Title. Where that is the case, the applicant shall have a right to be granted the residence status and the document evidencing that status;

Comment:

No indication of what we'll have to provide to enable verification.

(b) the deadline for submitting the application shall not be less than 6 months from the end of the transition period, for persons residing in the host State before the end of the transition period.

Comment:

We've got until the middle of next year, and possibly even earlier. It's a pity it doesn't say that the host state should get its bum in gear and enable applications without any delay. As written, it means that Spain can drag its heels.

For persons who have the right to commence residence after the end of the transition period in the host State in accordance with this Title, the deadline for submitting the application shall be 3 months after their arrival or the expiry of the deadline referred to in the first subparagraph, whichever is later.

Comment:

I have to admit that I don't know how to interpret this. Article 18 is about those who are resident here before the end of the transition period, but this particular clause indicates that some people have the right to take up residency here after the end of the transition period. I can only think that it probably means that family members of someone already resident here have the right to move here, and to do so at any time. If anyone else would like to offer their interpretation, then please do so.

A certificate of application for the residence status shall be issued immediately;

Comments:

A receipt for your application may be a way of covering individual member states effecting applications in different ways. I hope however that Spain allow an application to be accompanied by the photographs, and that a fingerprint will be taken at the same time. Otherwise we could be facing multiple visits to the relevant office.

As written, the clause doesn't place any constraint on how long Spain can delay between accepting an application and issuing a TIE card.

(c) the deadline for submitting the application referred to in point (b) shall be extended automatically by 1 year where the Union has notified the United Kingdom, or the United Kingdom has notified the Union, that technical problems prevent the host State either from registering the application or from issuing the certificate of application referred to in point (b). The host State shall publish that notification and shall provide appropriate public information for the persons concerned in good time;

Comment:

Good grief! - we don't want any more delays.

(d) where the deadline for submitting the application referred to in point (b) is not respected by the persons concerned, the competent authorities shall assess all the circumstances and reasons for not respecting the deadline and shall allow those persons to submit an application within a reasonable further period of time if there are reasonable grounds for the failure to respect the deadline;

Comment:

This appears to be condoning the behaviour of the procrastinators and those who bury their heads in the sand. The deadlines are generous enough that there shouldn't be any 'reasonable' grounds. Which makes me remember that I'm looking forward to the day when illegal 'residents' are either not allowed back into Spain, or are deported.

(e) the host State shall ensure that any administrative procedures for applications are smooth, transparent and simple, and that any unnecessary administrative burdens are avoided;

Comment:

In Spain, simple - you must be joking! But I hope to be proved wrong.

(f) application forms shall be short, simple, user friendly and adapted to the context of this Agreement; applications made by families at the same time shall be considered together;

Comment:

Good news.

(g) the document evidencing the status shall be issued free of charge or for a charge not exceeding that imposed on citizens or nationals of the host State for the issuing of similar documents;

Comment:

Free - in Spain - again, you must be joking! At least we won't have to pay more than €12, which is the cost for a Spaniard to renew a DNI.

(h) persons who, before the end of the transition period, hold a valid permanent residence document issued under Article 19 or 20 of Directive 2004/38/EC ... shall have the right to exchange that document within the period referred to in point (b) of this paragraph for a new residence document upon application after a verification of their identity, a criminality and security check in accordance with point (p) of this paragraph and confirmation of their ongoing residence; such new residence documents shall be issued free of charge;

Comments:

Those with permanent residency get it free.

This clause states that a criminal records check will be carried out in all cases, whereas Article 19(3) below says that a criminal records check will not be done as a matter of routine. We'll have to wait and see what they do.

The reference to Article 20 of the Directive means that non-EU family members will have to renew their 'permanent' residency card every ten years, but this will be done automatically.

(j) supporting documents other than identity documents, such as civil status documents, may be submitted in copy. Originals of supporting documents may be required only in specific cases where there is a reasonable doubt as to the authenticity of the supporting documents submitted;

Comment:

No mention of, e.g. a marriage certificate, requiring an authorised translation.

(k) the host State may only require Union citizens and United Kingdom nationals to present, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in Article 8(3) of Directive 2004/38/EC:

(i) where they reside in the host State in accordance with point (a) of Article 7(1) of Directive 2004/38/EC as workers or self-employed, a confirmation of engagement from the employer or a certificate of employment, or proof that they are selfemployed;

Comment:

Even though someone working here had to prove that status when they originally applied for a residency certificate, they will have to prove it again.

(ii) where they reside in the host State in accordance with point (b) of Article 7(1) of Directive 2004/38/EC as economically inactive persons, evidence that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host State during their period of residence and that they have comprehensive sickness insurance cover in the host State; or

Comment:

At this point I started to worry about now being required to prove 4 x IPREM, but read on.

With regard to the condition of sufficient resources, Article 8(4) of Directive 2004/38/EC shall apply;

Comment:

Article 8(4) of the Directive says:

Member States may not lay down a fixed amount which they regard as "sufficient resources" but they must take into account the personal situation of the person concerned. In all cases this amount shall not be higher than the threshold below which nationals of the host Member State become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host Member State.

Excellent news - it dispels the possibility of us existing residents needing to prove 4 x IPREM. It does mean we'll have to provide proof of finances, so we'll have to wait and see whether the national police want either or both of regular income and bank balance. Perhaps it's time to watch the exchange rate and fatten up your bank balance in good time. There's still a chance that we may not need to provide finances, as the start of clause (k) above says 'the host State may only require' - note the use of 'may' rather than 'shall'.

(l) the host State may only require family members who fall under point (e)(i) of Article 10(1) or Article 10(2) or (3) of this Agreement and who reside in the host State in accordance with point (d) of Article 7(1) or Article 7(2) of Directive 2004/38/EC to present, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in Article 8(5) or 10(2) of Directive 2004/38/EC:

(i) a document attesting to the existence of a family relationship or registered partnership;

(ii) the registration certificate or, in the absence of a registration system, any other proof that the Union citizen or the United Kingdom national with whom they reside actually resides in the host State;

(iii) for direct descendants who are under the age of 21 or who are dependants and dependent direct relatives in the ascending line, and for those of the spouse or registered partner, documentary evidence that the conditions set out in point (c) or (d) of Article 2(2) of Directive 2004/38/EC are fulfilled;

(iv) for the persons referred to in Article 10(2) or (3) of this Agreement, a document issued by the relevant authority in the host State in accordance with Article 3(2) of Directive 2004/38/EC. With regard to the condition of sufficient resources as concerns family members who are themselves Union citizens or United Kingdom nationals, Article 8(4) of Directive 2004/38/EC shall apply;

Comment:

It looks a bit off-putting, but what it boils down to is that family members will only need to provide the same proofs as required under the pre-Brexit rules.

(m) the host State may only require family members who fall under point (e)(ii) of Article 10(1) or Article 10(4) of this Agreement to present, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in Articles 8(5) and 10(2) of Directive 2004/38/EC:

(i) a document attesting to the existence of a family relationship or of a registered partnership;

(ii) the registration certificate or, in the absence of a registration system, any other proof of residence in the host State of the Union citizen or of the United Kingdom nationals whom they are joining in the host State;

(iii) for spouses or registered partners, a document attesting to the existence of a family relationship or a registered partnership before the end of the transition period;

(iv) for direct descendants who are under the age of 21 or who are dependants and dependent direct relatives in the ascending line and those of the spouse or registered partner, documentary evidence that they were related to Union citizens or United Kingdom nationals before the end of the transition period and fulfil the conditions set out in point (c) or (d) of Article 2(2) of Directive 2004/38/EC relating to age or dependence;

(v) for the persons referred to in Article 10(4) of this Agreement, proof that a durable relationship with Union citizens or United Kingdom nationals existed before the end of the transition period and continues to exist thereafter;

Comment:

Similar to the previous clause - no new requirements.

(o) the competent authorities of the host State shall help the applicants to prove their eligibility and to avoid any errors or omissions in their applications; they shall give the applicants the opportunity to furnish supplementary evidence and to correct any deficiencies, errors or omissions;

Comment:

I hope the staff at the national police stations see this one! Seriously, it implies that if an application is rejected, then you can go back again without having to restart the procedure.

(p) criminality and security checks may be carried out systematically on applicants, with the exclusive aim of verifying whether the restrictions set out in Article 20 of this Agreement may be applicable. For that purpose, applicants may be required to declare past criminal convictions which appear in their criminal record in accordance with the law of the State of conviction at the time of the application. The host State may, if it considers this essential, apply the procedure set out in Article 27(3) of Directive 2004/38/EC with respect to enquiries to other States regarding previous criminal records;

Comment:

'may' rather than 'shall', but indicating that if they opt to do them, criminal records checks will be carried out on everyone.

(q) the new residence document shall include a statement that it has been issued in accordance with this Agreement;

Comment:

TIEs already come in a variety of flavours and in six different colours. Hazarding a guess, and assuming we get TIEs and not something different, then I think yellow is a strong contender.

(r) the applicant shall have access to judicial and, where appropriate, administrative redress procedures in the host State against any decision refusing to grant the residence status. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed decision is based. Such redress procedures shall ensure that the decision is not disproportionate.

Comment:

All this means is that you have the right to appeal against a refusal to grant residencia.

2.During the period referred to in point (b) of paragraph 1 of this Article and its possible oneyear extension under point (c) of that paragraph, all rights provided for in this Part shall be deemed to apply to Union citizens or United Kingdom nationals, their respective family members, and other persons residing in the host State, in accordance with the conditions and subject to the restrictions set out in Article 20.

Comment:

All this is saying is that the terms and conditions in the Agreement apply throughout the time allowed for residency applications.

There is an implication that if you don't get your application in on time, then the rights granted in the Agreement do not apply, and that non-EU national rules would apply.

4.Where a host State has chosen not to require Union citizens or United Kingdom nationals, their family members, and other persons, residing in its territory in accordance with the conditions set out in this Title, to apply for the new residence status referred to in paragraph 1 as a condition for legal residence, those eligible for residence rights under this Title shall have the right to receive, in accordance with the conditions set out in Directive 2004/38/EC, a residence document, which may be in a digital form, that includes a statement that it has been issued in accordance with this Agreement.

Comment:

I can't envisage Spain not requiring us to transition to TIEs, but again we're waiting for the authorities to publish what is required.

ARTICLE 19 - ISSUANCE OF RESIDENCE DOCUMENTS DURING THE TRANSITION PERIOD:

1.During the transition period, a host State may allow applications for a residence status or residence document as referred to in Article 18(1) and (4) to be made voluntarily from the date of entry into force of this Agreement.

Comment:

We're back to the 'may' and 'shall' problem again. If it had said 'shall', I'd have now been standing voluntarily outside the cop shop in Orihuela and demanding that they issue me with a TIE.

2.Decisions to accept or refuse such applications shall be taken in accordance with Article 18(1) and (4). Decisions under Article 18(1) shall have no effect until after the end of the transition period.

Comments:

In other words, even if your application is refused, you have the right to stay here until the end of the transition period.

Note that 'after the end of the transition period' leaves some scope for determining when your residency certificate becomes null and void.

3.If an application under Article 18(1) is accepted before the end of the transition period, the host State may not withdraw the decision granting the residence status before the end of the transition period on any grounds other than those set out in Chapter VI and Article 35 of Directive 2004/38/EC.

Comments:

What this boils down to is that once a residencia application is approved, then it can't be withdrawn unless you prove to be a danger to public security or health.

It also enables the authorities to carry out a criminal records check, if they consider this necessary. According to the Directive, a criminal records check cannot be done as a matter of routine.

4.If an application is refused before the end of the transition period, the applicant may apply again at any time before the expiry of the period set out in point (b) of Article 18(1).

Comment:

In other words, if your residencia application is refused, you can reapply at any time up to six months after the end of the transition period.

5. Without prejudice to paragraph 4, the redress procedures under point (r) of Article 18(1) shall be available from the date of any decision to refuse an application referred to in paragraph 2 of this Article.

Comment:

All this means is that you have the right to appeal against a refusal to grant residencia.

ARTICLE 23 - EQUAL TREATMENT:

1.In accordance with Article 24 of Directive 2004/38/EC, subject to the specific provisions provided for in this Title and Titles I and IV of this Part, all Union citizens or United Kingdom nationals residing on the basis of this Agreement in the territory of the host State shall enjoy equal treatment with the nationals of that State within the scope of this Part. The benefit of this right shall be extended to those family members of Union citizens or United Kingdom nationals who have the right of residence or permanent residence.

Comment:

This just confirms that both pre- and post- the transition period, the way we are treated will not alter.

Perhaps being treated the same as the Spanish means we can park wherever we want!

ARTICLE 126 TRANSITION PERIOD:

There shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.

Article 132 - Extension of the transition period:

1.Notwithstanding Article 126, the Joint Committee may, before 1 July 2020, adopt a single decision extending the transition period for up to 1 or 2 years.

Comment:

Heaven forbid!

ARTICLE 164 - JOINT COMMITTEE:

1.A Joint Committee, comprising representatives of the Union and of the United Kingdom, is hereby established. The Joint Committee shall be co-chaired by the Union and the United Kingdom.

5.The Joint Committee may:

(d) except in relation to Parts One, Four and Six, until the end of the fourth year following the end of the transition period, adopt decisions amending this Agreement, provided that such amendments are necessary to correct errors, to address omissions or other deficiencies, or to address situations unforeseen when this Agreement was signed, and provided that such decisions may not amend the essential elements of this Agreement;

Comment:

It does say 'may' rather than 'shall', but it does mean that things might drag on until the end of 2024 before it's all done and dusted.

ARTICLE 166 - DECISIONS AND RECOMMENDATIONS:

1.The Joint Committee shall, for the purposes of this Agreement, have the power to adopt decisions in respect of all matters for which this Agreement so provides and to make appropriate recommendations to the Union and the United Kingdom.

2.The decisions adopted by the Joint Committee shall be binding on the Union and the United Kingdom, and the Union and the United Kingdom shall implement those decisions. They shall have the same legal effect as this Agreement.

3.The Joint Committee shall adopt its decisions and make its recommendations by mutual consent.

Comments:

If the committee decisions are going to be binding, is Boris going to sit on the committee all the time, or risk UK committee members agreeing to something he doesn't like but has to comply with?

I don't like the simple reference to mutual consent, and would have preferred it to state whether a majority vote on a decision would suffice, or whether it had to be unanimous.

I hope the committee will work its way through the prior draft agreement, and simply ratify the mutual decisions made in that, rather than debating every individual point over again. If they do, such a simple rubber-stamping exercise could lead to speedy decisions on matters that concern us.

ARTICLE 185 - ENTRY INTO FORCE AND APPLICATION:

This Agreement shall enter into force on one of the following dates, whichever is the earliest:

(a) the day following the end of the period provided for in Article 50(3) TEU, as extended by the European Council in agreement with the United Kingdom, provided that, prior to that date, the depositary of this Agreement has received the written notifications by the Union and the United Kingdom regarding the completion of the necessary internal procedures;

Comments:

Article 50 is the infamous withdrawal clause, and TEU stands for the Treaty on European Union.

The Withdrawal Agreement is now in force.

CONCLUSIONS:

Apart from residency, the Agreement effectively does nothing for us yet. It's the same old Brexit story - hurry up and wait.

I'm waiting, with interest, to find out:

When we can apply for TIEs.

Whether we'll be able to travel to other EU countries without any hassle.

Whether we'll have continuing health cover, and whether the S1 scheme will continue into the future.

Whether applicants after the end of the transition period will need to prove an income of 4 x IPREM.

If you've managed to read through to this point, congratulations - go and pour yourself an alcoholic beverage.


Jim, Thank you immensely  for putting time and effort into explaining the 'ins and outs' of the Legal jargon of the Withdrawal Agreement ,as it presently stands.

I certainly wont be going away to watch paint dry and have given it all a quick 'once over.' 

Your comments after each section explain the detail in an easy to understand manner.

I will return to it later for a second read, but right now am off for that recommend alcaholic beverage and to say to you  'Cheers for that Jim " 👍.

LeckyLes 

RayD

RayD

Legendary helpful member

Wed Feb 12, 2020 7:50pm

Posts: 4422

Location: Catral

3297 helpful posts

Posted: Wed Feb 12, 2020 7:50pm

Surely the residence rights referred to in articles 11 and 13 etc only apply to UK citizens during the transitional period.

After the transition period, their EU citizenship status is removed and they are subject to the existing laws in member states concerning third country nationals.

The right of entry and exit is also only maintained up until that point and the reference to 'EU and UK nationals' points out our actually not being EU citizens post 31st January, but being awarded time limited privileges.

Another interesting document was issued by the UK government today

https://www.gov.uk/government/publications/ways-in-which-people-can-be-lawfully-resident-in-the-uk?utm_source=9b59954d-043e-4d8d-840c-0a684e33606a&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Grahame

Grahame

Helpful member

Wed Feb 12, 2020 7:59pm

Posts: 158

Location: Playa Flamenca

132 helpful posts

Posted: Wed Feb 12, 2020 7:59pm

As ever

You are a star Jim

Many thanks for putting in the effotr

Lancelot

Lancelot

Helpful member

Wed Feb 12, 2020 10:00pm

Posts: 149

152 helpful posts

Posted: Wed Feb 12, 2020 10:00pm

I started but I didn't finish - I will come back and re-read. Excellent work Jim.

jimtaylor

jimtaylor

Original Poster

Legendary helpful member

Thu Feb 13, 2020 5:00am

Posts: 5022

Location: Mudamiento

6669 helpful posts

Posted: Thu Feb 13, 2020 5:00am

RayD wrote on Wed Feb 12, 2020 7:50pm:

Surely the residence rights referred to in articles 11 and 13 etc only apply to UK citizens during the transitional period.

After the transition period, their EU citizenship status is removed and they are subject to the existing laws in member states concerning third country nationals.

The right of entry and exit is also only maintained up until that point and the reference to 'EU and UK nationals' points out our actually not being EU citizens post 31st January, but being awarded time limited privileges....

I agree that is the intention, Ray, but in my opinion it isn't specific enough.

Article 11 says it deals with continuity of residence - fair enough - that's what we'd expect.

But it goes on to say at article 13 that '....United Kingdom nationals shall have the right to reside....' and, in my opinion, none of the numerous cross-references confine that statement to those here before the end of the transition period.

Because it's so complex, I may have missed something, or it may be that this is a loophole in the agreement.

Kimmy11

Kimmy11

Legendary helpful member

Thu Feb 13, 2020 9:07am

Posts: 2037

2572 helpful posts

Posted: Thu Feb 13, 2020 9:07am

Morning Jim,

I doubt you've missed anything - when you consider how badly the Article 50 regulation was written ("We never assumed a country would leave"), I'm not surprised you identified a potential loophole.

Amazing work, Jim, thank you.

Kim x

Gloverglover15

Thu Feb 13, 2020 11:38am

Posts: 16

Location: La Marina

4 helpful posts

Posted: Thu Feb 13, 2020 11:38am

Hi Jim,

Forgive me for being nosey (interested) what is, was your occupation?

You amaze me, Boris should give you a job

Best wishes

Eliz

jimtaylor

jimtaylor

Original Poster

Legendary helpful member

Fri Feb 14, 2020 4:53am

Posts: 5022

Location: Mudamiento

6669 helpful posts

Posted: Fri Feb 14, 2020 4:53am

Hi Eliz, thanks for that.

Before I retired I was a contracts manager in aerospace, in charge of the contracts department of a large manufacturing company. That involved handling contracts for a site whose turnover was over a hundred million a year, and the majority of the business was with the Ministry of Defence. An MOD contract is loaded with detail and invokes many other documents invoking various conditions, and being able to read and understand the whole, and negotiate conditions I didn't like or which could be costly to the company, was the bread and butter of my job.

That's why reading and understanding something like the withdrawal agreement, and Spanish laws, is something I actually like to get my teeth into. OK, I know it's strange, but I actually enjoy doing something like that - it's good mental exercise. The big dirrerence between then and now is that now I don't get paid for what I do.

I'm helped in that my parents gifted me a high IQ, and I passed the Mensa tests in my late teens, then out of interest retook the tests when my daughter was in her teens and got a slightly better result. I did originally go to the regular Mensa meeting where I lived, but stopped that when I found out that a high IQ doesn't stop someone being an idiot!

Gloverglover15

Fri Feb 14, 2020 7:55am

Posts: 16

Location: La Marina

4 helpful posts

Posted: Fri Feb 14, 2020 7:55am

Hi Jim,

I for one are extremely grateful your parents gave you that gift, you explain things that even I am able to understand.

Thank you for all your hard work

Best wishes

Eliza

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