Post-Brexit European Citizens' Rights Are Up for Negotiation

In the second round of negotiations for the U.K. exiting the European Union, the question of what rights citizens of the European Union and U.K. will have in the other’s territory after the withdrawal is being addressed. The U.K. and the EU both issued plans on this topic in the summer of 2017 and will work through areas of contention on this and other matters during round two.

The U.K. and EU Plans

On 12 June 2017 the position paper on “Essential Principles on Citizens’ Rights” proposed that the U.K. withdrawal agreement should protect the rights of European citizens in the U.K. and the rights of British citizens in the European Union member states. The paper from the European Union Commission proposed a non-discriminatory and comprehensive guarantee to safeguard the status and rights derived from European Union law on the date that the U.K. exits the European Union (the so-called “Brexit”).

The U.K. government’s proposed plans for managing the immigration status of European citizens post-Brexit were released on 26 June 2017 to an eagerly awaiting press. This white paper stressed that the U.K. government was keen to give people the certainty they desired at the earliest opportunity. This fit with the government’s repeated assertions since the result of the referendum that securing the rights of European citizens in the U.K. and of U.K. nationals living in the European Union was a high priority matter. The paper is still only a proposal at this stage and therefore is likely to be subject to negotiation and may also open the government up to possible legal and political challenges.  

The U.K. government is anticipating that the European Union will offer a reciprocal agreement for U.K. nationals living in the European Union, despite the fact that the European Union’s initial proposal paper offered a lifetime guarantee for all rights that U.K. citizens residing in the European Union currently enjoy, along with an additional freedom of movement right which would allow them to work or retire in any other European country — arguably a better deal than the deal put forward by the U.K. government. 

Court of Justice of the European Union

Brussels is eager for the U.K. to respect European Union case law, and holds the view that anyone who has moved lawfully to the U.K. before the U.K.ʼs formal exit from the European Union should have their rights protected fully post Brexit. Until the day of the formal split, the rights of these European nationals are defined by the European Union Court of Justice. Brussels is pushing for the European Court to have full jurisdiction of the protection of European citizens’ rights in the withdrawal agreement. 

The U.K. government has always maintained that once the U.K. has left the European Union, the European courts will not have jurisdiction in the U.K. Most recently Prime Minister Theresa May rejected calls from the European Union leaders for a European court to oversee these rights after Brexit. The U.K. government reaffirms this position in its proposal, and states that it will create new rights for qualifying European citizens in the U.K. before the formal departure from the European Union. These rights will be enforceable through the U.K. judiciary and will provide guarantees for European citizens in the U.K. Consequently, any negative decisions regarding applications made by European citizens under the new immigration system post Brexit will therefore not be appealed to the Court of Justice of the European Union, as they are under the current system.

European Nationals Residing in the U.K.

The European Unionʼs underlying argument in its position paper was that European Union citizens should have the same level of protection on the date that the U.K. leaves the European Union as they had whilst the U.K. was a member of the European Union. That protection should include the right to acquire permanent residence after a continuous period of five years or more of legal residence. The European Union is arguing for these rights to apply not only to European citizens in the U.K. and to U.K. citizens in the European Union, but also across the board at any time during the U.K.ʼs membership of the European Union. It is campaigning for these rights to apply to both current and future family members, regardless of their nationality, who decide to join their family member either currently or in the future. 

The U.K. government’s proposed plans for managing the immigration status of European citizens in the U.K. post Brexit are similar to the European Union’s. The U.K. government pledges that any European citizen who arrived in the U.K. prior to a specified date, which the U.K. said would be determined during negotiations with the European Union, and accrued five years’ residence should be granted settled status under the U.K. law. The current scheme for European citizens should no longer apply.

The disagreement between the two sides concerned this specific date which is so central to the above plans. Brussels believed that this date should be 29 March 2019, exactly two years after Article 50 was triggered and formal talks about the U.K.ʼs departure from the EU began. The U.K. had not ruled this out but, instead, stated in their proposal that the specified date will be no earlier than 29 March 2017, and no later than the date of the U.K.’s actual withdrawal from the European Union. The proposal stated explicitly that they expected to discuss the specified date with the European Union as part of delivering a reciprocal deal.  

Since the release of this white paper, the U.K. government has stated that this specified date will be 29 March 2019. On this date free movement between the U.K. and the European Union will cease, and a new immigration system will take effect. This new system is expected to be detailed in a report that will be published in September 2018 and an immigration bill will be put before the Parliament following this report. 

As part of the U.K. proposal, any European citizens who entered before the specified date but do not qualify for settled status would be granted temporary status for up to five years, at which point they can apply for settled status. Those who entered after the specified date can apply for temporary status in order to accumulate five years in the U.K., but should have no expectation of guaranteed settled status. Therefore, this proposal provides no guarantee that European Citizens would be able to obtain permanent residency. However, as the date has now been confirmed as 29 March 2019, those planning to move to the U.K. have a timeframe in which to operate if they wish to have a chance at obtaining settled status.  

Post-Brexit

The European Unionʼs position concerning European citizens in the U.K. post Brexit is simple. The European Union proposes that all European citizens who were legally in the U.K. before Brexit should be able to remain in the U.K. and should not have to prove their right to remain. The European citizens should be able to continue to live, work and study in the U.K. even if they do not hold a residence permit evidencing that right. 

The U.K. addressed this requirement by announcing that all European citizens and their family members in the U.K., regardless of when they arrived, will need to obtain immigration status under U.K. law on the U.K.’s withdrawal from the European Union. This should mean that existing residence documents, obtained by the European citizens and their family members in the U.K. under the current European regulations, would be deemed invalid post Brexit. This will also apply to European citizens who already hold Permanent Residence or Registration Certificates.

Family Union

Under current rules, European citizens in the U.K. have more rights when it comes to bringing their family members to the U.K. than family members who wish to join a British citizen in the European Union. Currently, under the European Union regulation, European citizens have an automatic right to bring over non-European family members. The U.K. government has honoured the right of European citizens to bring their family members to the U.K. but this is likely to change when the U.K. officially exits the European Union. 

The position of the U.K. is that dependant family members (including non-Europeans) who are resident in the U.K. with a European citizen at the point the U.K. leaves would be granted the two-year grace period. However, the dependant family members will need to apply for new residence documents in the same way as European citizens. Family members of European citizens wishing to apply to join their European family member in the U.K. after the date the U.K. leaves the European Union will be subject to the same rules in place at that time as those family members joining British citizens, regardless of when their European spouse entered the U.K. 

U.K. Government Administration

Brussels’ position is that any documents that European citizens will be required to obtain post-Brexit should be issued either free of charge or for a charge not exceeding that imposed on nationals for issuing of similar documents. The U.K. government pledged to recognise that the cost of the new scheme should be prioritised for European citizens and stated that they intend to set fees at a reasonable level.

The U.K. government’s aim is to make the application process as user friendly as possible for European citizens and their family members. The U.K. government proposed that it will use existing government data, such as income records, to reduce the documentary evidence required for applications under the new system. All individuals who currently hold permanent residency should have to meet a lower threshold and the application process would be as streamlined as possible for them. The U.K. government also intends to remove some of the technical requirements needed currently to obtain permanent residence under the European Union rules. For example, the government should no longer require economically inactive Europeans to show that they have comprehensive sickness insurance to prove their residence.

The new digital application system is expected to be up and running in or around 2018. 

Fair Treatment? 

The European Union has asked for assurances that European citizens may have equal treatment in the U.K. in all matters relating to Brexit.
The U.K. proposes that the rights of European citizens will apply to all European citizens equally and the U.K. will not treat citizens of one member state differently to those of another. The proposal states that these rights will depend on the commitment that the U.K. may agree jointly with the European Union in the withdrawal agreement. However, one exception to the equal and fair treatment proposal relates to Ireland. The European Union stated that any agreement should be without prejudice to the Common Travel Area arrangements between the U.K. and Ireland.

The U.K. government has also stressed that the proposals in the policy paper are without prejudice to the Common Travel Area arrangements, and that the U.K. government will preserve the freedoms that U.K. and Irish citizens currently enjoy. As such, Irish citizens are unlikely to have their movement affected by Brexit. The Ireland Act 1949 regulates the relationship between the two countries, and it predates both countries’ membership of the European Union. Irish citizens living in the U.K. are not required to apply for permanent residence to protect this entitlement.