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On 15 December 2024, the European Commission (EC) decided to refer the U.K. to the Court of Justice of the European Union (CJEU) for failing to implement provisions on the free movement of EU citizens and their family members at the end of 2020.1

The specifics of the alleged breaches have not been detailed in public statements, but they are believed to involve issues such as residency rights, social security coordination, and the administrative processes affecting EU citizens in the United Kingdom.2

For example, the U.K. does not consider that EU citizens have sufficient health insurance when they are only affiliated to the health-care system in the U.K. (NHS) and are entitled to medical treatment provided by the NHS.3 Ìý

WHY THIS MATTERS

The decision of the EC to take legal action against the U.K. is a significant development in the ongoing post-Brexit landscape where the EU-U.K. Withdrawal Agreement is seen as a key component in protecting the rights of citizens.

The outcome of this legal action can have significant implications for EU-U.K. relations, where a ruling against the U.K. might necessitate changes in domestic policies.

EU citizens in the U.K. for whom continued application of EU rights is protected under the EU-U.K. Withdrawal Agreement should monitor developments in this legal proceeding.Ìý There could be opportunities for individuals to seek restitution and eventually claim rights for themselves and for their (extended) family members in the event the ruling goes against the United Kingdom.Ìý Decisions regarding appropriate course of action should be taken in conjunction with qualified legal counsel. Ìý

Context

The EU-U.K. Withdrawal Agreement 4 (“the Withdrawal Agreementâ€�) was a pivotal document that outlined the terms of the U.K.’s departure from the European Union. ÌýAmong its many provisions, it also included clauses to safeguard the rights of EU citizens residing in the U.K. and vice versa.

The free movement of people, a fundamental principle of the EU, was a critical aspect of the protections, providing that citizens could live, work, and travel freely across borders.

Legal Proceedings

The EC has been in dialogue with the U.K. government for years about its implementation of the Withdrawal Agreement, but the Commission found that shortcomings in the U.K.’s implementation of the free movement provisions continues to affect EU citizens in the United Kingdom. ÌýAfter carefully assessing the replies by the U.K., the Commission maintains that several elements of the grievances remain unaddressed, including the rights of workers. 5

By referring the case to the CJEU, the EC underscores the seriousness with which it views the alleged infractions. ÌýThe rulings by the CJEU are binding.Ìý Since this dialogue between the parties was initiated before Brexit and it concerns the Agreement that provides for continued application of citizensâ€� rights under EU law, the ruling will be binding for the U.K. too. Ìý

Recent Case Law in the Context of the Withdrawal Agreement

It is reasonable to believe that a part of the motivation behind the EC’s decision to refer the case against the U.K. to the CJEU relates in part to recent case law in the United Kingdom.

In the very complex case of Batool and others,6 the U.K. legal system addressed, among other things, legal arguments about the interpretation of the Withdrawal Agreement and the extent to which it should influence domestic asylum and immigration policies.

One of the disputed issues in the case concerns rights to residence for an EU national’s extended family members; such rights are enshrined in the EU Residence Directive7 and the Withdrawal Agreement.ÌýÌý

ÀÖÓ㣨Leyu£©ÌåÓý¹ÙÍø INSIGHTS

Developments in the case at the CJEU will be closely watched by stakeholders on both sides of the English Channel.8 ÌýThe situation highlights the complexities and challenges of disentangling decades of integration and the importance of adhering to international agreements.

The outcome of this case can potentially impact the lives of millions of EU citizens in the U.K. affected by Brexit. ÌýShould the CJEU rule against the U.K., it will be interesting to see if the U.K. will acknowledge and respect such ruling.

In any case, EU citizens and their family members in the U.K. whose rights of free movement are limited or in some way negatively impacted and who are covered by the Withdrawal Agreement, should monitor this case and, depending on the outcome, consider whether their situation warrants claiming their rights, irrespective of whether the U.K. decides to follow such ruling.Ìý

Footnotes:

1Ìý European Commission Press Release, Ìý, 15 December 2024.

2Ìý European Commission, â€�,â€� nr. 5 Justice, 29 October 2020.

3 ÌýSee footnote 2.

4 ÌýEuropean Commission, , 12 November 2019.

5Ìý See footnote 1.

6Ìý Upper Tribunal (U.K.): Batool and others, [2022] UKUT 00219 (IAC) 2022 can be found . ÌýÌý

7 ÌýEuropean Commission, Migration and Home Affairs, â€�,â€� 2004.

8Ìý For related coverage of EU/U.K. legal challenges see the following issues of GMS Flash Alert: 2023-147 (21 July 2023) and (28 May 2021).

Contacts

Daida Hadzic
Daida Hadzic

Director, Washington National Tax � Global Mobility Services

ÀÖÓ㣨Leyu£©ÌåÓý¹ÙÍø in the U.S.

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