Non-discrimination and the right to equal treatment

Withdrawal Agreement beneficiaries and their family members have important rights under the Withdrawal Agreement (WA) of non-discrimination and to equal treatment.

They have the same rights to equal treatment with nationals in their host state as EU citizens do - and subject to the same limitations e.g. in relation to access to

• Social assistance

• Healthcare and social security coordination

• Student grants and loans

Caselaw has made clear that discrimination on the grounds of nationality covers both direct and indirect discrimination “which, by the application of other criteria of differentiation, lead in fact to the same result.”

There is no exhaustive list of the areas in which the right to non-discrimination and equal treatment applies to WA beneficiaries. Broadly, equal treatment under EU law means that EU citizens enjoy social advantages that are advantages that facilitate their mobility. The rights of WA beneficiaries to equal treatment in their host state mirror those rights of EU citizens.

Note: Specific, more favourable equal treatment rights apply to workers/self-employed people and their families (Articles 24 and 25 WA), including in relation to social and tax advantages.

Right to equal treatment: social assistance

WA beneficiaries have rights to equal treatment when accessing social assistance in their host state, subject to some limitations. But what is social assistance?

Social assistance typically means benefits provided by the public authorities at national, regional or local level to those who do not have sufficient resources to meet their own basic needs and those of their family. In turn, a person in receipt of social assistance thus might become a burden on the public finances of the host state during their period of residence.

Generally, WA beneficiaries’ rights to equal treatment on social assistance can be summarised as follows:

• WA beneficiaries who are workers or self-employed persons or retain that status are entitled to social assistance and benefit from equal treatment from the beginning of their residence;

• Other WA beneficiaries who are not workers or self-employed persons but either economically non-active, or students, are not entitled to social assistance until they have obtained permanent residence. This is logical as they have to be able to show they have sufficient resources to meet their needs to be legally resident.

Right to equal treatment: social security and healthcare

How equal treatment interrelates to EU social security coordination is complex.

EU legislation on social security coordination e.g. Regulation 883/2004 does not harmonise social security across the EU. Instead it sets up a system of conflict of laws that decides which EU country is responsible as regards social security in any case concerning a person in a cross-border situation.

This means that each EU country has its own rules on social security: which benefits are provided, what the eligibility conditions are, how benefits are calculated and paid. Regulation 883/2004 does not prescribe but coordinates between the rules adopted in different EU Member States.

Typical social security benefits include pensions, invalidity/employment benefits, child benefit, parental benefits, sickness benefits (healthcare), etc.

Access to social security and healthcare

Broadly the principle of equal treatment applies to social security and healthcare as follows:

• WA beneficiaries who are workers and self-employed persons and their family members will normally be integrated into the national social security/health system and broadly covered by the same rules as nationals in the host State.

• Their family members will however only be covered by the same rules as nationals in the host State if they fall within the definition of “family member” under the social security rules in that EU country.

• The definition of family member is thus not harmonised across the EU under EU social security coordination rules but EU countries must take Article 21(1) EU Charter on non-discrimination, including on the basis of sexual orientation, as well as Article 24 on the rights of the child, into account when defining who is a family member.

• If family members are not covered, they may have to, e.g. make a payment to access the health system, until they obtain permanent residence.

• Retired persons are generally covered through the national health scheme of the country that pays their pension, on the basis of an S1 form. WA beneficiaries with a UK pension who are covered through the UK’s NHS will be able to access healthcare in their host state, which will be responsible for providing their healthcare, but the costs will be paid by the UK on the basis of an S1 form issued by the UK.

• Student WA beneficiaries who are temporarily studying in another EU country would be covered by an EHIC issued by their host State or country of residence.

Right to equal treatment: property rights

WA beneficiaries have faced problems in several EU countries when buying property post Brexit although they should have the same rights to buy property as nationals of the host State under the principle of equal treatment. Property rights would be regarded as advantages facilitating free movement rights and thus as social advantages to which both EU citizens and WA beneficiaries are entitled in line with their right to equal treatment.

Right to equal treatment: education

WA beneficiaries have equal rights to access education including higher education and vocational training as well as to maintenance aid for studies (student grants, loans). However, Member States do have the option under Article 23(2) if they choose to restrict those rights to maintenance aid for studies for economically non-active persons, students and jobseekers until they have acquired permanent residence.

If you want to know more, read our legal report.

Funded by the European Union. Views and opinions expressed are however those of the author(s) only and do not necessarily reflect those of the European Union or the European Education and Culture Executive Agency. Neither the European Union nor the granting authority can be held responsible for them.