The complex social security provisions of the Brexit withdrawal agreement, to be implemented for decades
| Date | 01 March 2021 |
| Published date | 01 March 2021 |
| Author | Herwig Verschueren |
| DOI | 10.1177/1388262720967948 |
| Subject Matter | Articles |
Article
The complex social security
provisions of the Brexit
withdrawal agreement, to be
implemented for decades
Herwig Verschueren
University of Antwerp, Belgium
Abstract
This article analyses the provisions in the withdrawal agreement regarding the coordination of
the social security schemes of the United Kingdom and the Member States after Brexit. The UK’s
withdrawal from the EU raises numerous questions about the consequences for the social
security rights, including access to health care, of persons who find themselves in a cross-border
situation between the UK and the EU27. The detailed provisions in the agreement concern, in
thefirstplace,thearrangementsduringthetransition period, which ends on 31 December 2020.
They also establish the rights of persons who are in a cross-border situation between the UK and
a Member State at the end of this transition period. Furthermore, the agreement includes rules
for persons who have been in such a situation in thepast.Theseprovisionsareformulatedina
complicated manner and will undoubtedly give rise to problems of interpretation and imple-
mentation for many decades to come. This article tries to clarify the basic content of this part of
the withdrawal agreement, including the arrangements on administrative cooperation, moni-
toring and enforcement.
Keywords
Brexit, withdrawal agreement, social security, migration
1. Introduction
The United Kingdom’s withdrawal from the European Union raises numerous questions about the
consequences for the social se curity rights of persons who fin d themselves in a cross-border
situation between the UK and the EU27. This issue has, from the beginning, been on the agenda
Corresponding author:
Herwig Verschueren, Professor of International and European Social Law at the University of Antwerp, Venusstraat 23,
Antwerp, B-2000, Belgium.
E-mail: herwig.verschueren@uantwerpen.be
European Journal of Social Security
2021, Vol. 23(1) 7–23
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1388262720967948
journals.sagepub.com/home/ejs
EJSS
EJSS
of the negotiation process, and an agreement regarding the rights of these citizens has been a
priority for all parties. The fact that this topic was high on the agenda is not surprising. Indeed, it
concerns rights that are very important to persons who are in a cross-border situation between the
UK and the EU27. It concerns, inter alia, the access to health care, the right to benefits such as
unemployment benefits and family benefits and the acquisition and preservation of pension rights
based on performed labour. In addition, this was a politically sensitive subject, i.e., because of the
discussion on the alleged ‘benefit tourism’.
1
After a long and cumbersome negotiation process with dramatic turnings, the withdrawal
agreement (further referred to as ‘WA’) was definitively approved by all parties involved and
became effective on 1 February 2020.
2
The second section of this article starts by explaining the
provisions on the social security rights during the transition period, which will end on 31 December
2020. Section 3 discusses the detailed provisions in the agreement regarding the rights of all
persons who will be, or will have been, in a cross-border situation between the UK and the
EU27 at the end of the transition period. These provisions provide for a continued application
of the EU social security regulations for certain categories of persons, on the one hand, and for the
application of certain elements of the regulations for other categories on the other. Section 4 deals
with the arrangements regarding the administrative implementation of these provisions, and the
fifth section with the monitoring of those provisions, including the role of the European Commis-
sion, the UK Independent Monitoring Authority and the Court of Justice of the European Union
(CJEU) in this respect. Section 6 discusses the implementation of future amendments of EU law. A
conclusion is then given in the seventh section.
3
This article focuses on the meaning of the WA as such, and will not discuss current or future
implementation of the WA in UK legislation or in the legislations of the EU Member States. This is
beyond the scope of this article. Neither will this contribution discuss how social security rights
will be arranged for those who will not be in a cross-border situation between the UK and the EU27
until after the end of the transition period (31 December 2020) and to whom the provisions of the
WA do not apply. At the time of writing (July 2020), this was still a subject of negotiation between
the UK and the EU, and it was unclear whether an agreement could be reached and what the
content of such an agreement would be.
4
2. Social security rights during the transition period
BasedonArticle127(1)oftheWA,UnionlawshallremainapplicabletoandintheUKduring
the transition period, unless otherwise provided in the agreement. The latter is not the case for
social security rights. This means that the EU social security coordination for and with the UK
remains fully applicable until the end of this transition period.
5
This specifically concerns
1. For a revealing account of the negotiation process on social security matters, more specifically on the UK’s position, see:
Roberts (2020a) and Roberts (2020b).
2. OJ [2020] L 29/7.
3. For an earlier account of the challenges of Brexit for social security, see: Gru
¨tters et al (2018); Guild (2017); Jorens and
Strban (2017); Strban (2017); Verschueren (2017).
4. On possible scenarios for arrangements on social security in the future relations between the UK and the EU27, see:
Strban (2017); Roberts (2020a) and Verschueren (2017)
5. Based on Art. 126 WA, the end of the transition period is settled on 31 December 2020. This period could have been
extended by 1 or 2 years before 1 July 2020 (see Art. 132), but this did not happen.
8European Journal of Social Security 23(1)
To continue reading
Request your trial