Brexit: Citizens’ rights – issues in the negotiations

Introduction

The Senior European Experts published a paper in June 2017 setting out the rights that individuals have as EU citizens.¹  Since then the EU and the UK have published their respective positions on citizens’ rights in the Brexit negotiations.  This paper identifies the outstanding issues that divide the two sides.

In this paper, the “EU27” means the EU Member States after the UK has left but also includes the countries not in the EU which operate free movement of persons with it, namely Iceland, Liechtenstein, Norway and Switzerland.

Background

The current rights of EU citizens in the UK and UK citizens in the EU27 are set out in the Senior European Experts paper.  The rights are wide-ranging, affecting many aspects of life including residence, employment, social security, healthcare, education and housing.

The EU position was set out in the negotiating directives and in a subsequent position paper, which added important details.²  The EU27 position paper, Essential principles on citizens’ rights, sets out both broad principles that should apply and some specific elements that the EU would expect to be included in the withdrawal agreement.³  The UK’s position was set out in a White Paper published by the Government on 26 June 2017.⁴  It too contained a mixture of broad principles and specific points.

Common ground

There is a large measure of agreement between the EU and the UK positions:

• both sides have made resolving these issues their first priority in the negotiations;
• they both argue that there should be no change in the current rights of EU27 citizens living in the UK or UK citizens living in the EU27;
• they both want the agreed rights to be reciprocal for EU27 citizens and for UK citizens living in the EU27;
• they both believe that there should be no discrimination against such citizens after Brexit, including in employment and healthcare;
• they both want a simplified procedure for registering permanent residence; and
• they both want a high level of legal certainty to ensure that the final agreement is properly enforced.

Unresolved issues

There are however, a number of important unresolved issues, where there is not yet agreement between the two parties.  This section sets out those issues, detailing the position of both the UK Government and the EU27.

Coverage

There are clear differences over which EU and UK citizens are covered:

• the EU appears to consider that any EU27 citizen (and their family members) who has lived in the UK but subsequently left should have the right to return and obtain permanent residence up to and including the date of withdrawal;⁵ the UK believes that only those resident in the UK on the appointed cut-off date (a date between 29 March 2017 and 29 March 2019 yet to be set) should have that right;⁶
• the EU considers that family members should include third country nationals and future family members.  For example, if an EU27 citizen living in the UK marries a third country national after Brexit, they should be able to bring that person to the UK.⁷  The UK wishes to apply the same rules that as now apply only to British citizens to EU27 citizens if they marry or form a partnership with a non-EU national after Brexit; these latter rules usually involve a new partner earning a minimum level of income;⁸
• the EU’s proposals say that students and others who enter the UK under one category of EU27 migrant, should be allowed to stay if they change category;⁹ for example, if a student completes their course they should be entitled to stay and work; the UK makes no mention of this issue in its proposals;
• the EU includes frontier workers, that is EU citizens who work in one in EU country but live in another EU country, but the UK makes no mention of this group (possibly because those most likely to be affected would be Irish citizens working in Northern Ireland and their rights will be unchanged after Brexit).

The cut-off date

The withdrawal agreement will need to determine the point at which EU citizens entering the UK and UK citizens entering the EU27 will no longer be able to exercise free movement rights.  The EU wishes this cut-off date to be the day on which the withdrawal agreement comes into force.

As explained above, the UK wishes to set a date somewhere between 29 March 2017 (the date on which notice to leave was given under Article 50) and the planned withdrawal date of 29 March 2019.  The UK has not publicly explained why it has not set this cut-off date.  In practice it is likely to be because it wishes to allow room for negotiation with the EU and to avoid encouraging a rush of EU migrants into the UK before the deadline.

Permanent residence status

Under EU law any EU citizen resident for five years or more in a Member State can apply for their right to permanent residence to be recognised by their host country.  The UK, on the grounds that after Brexit it will not be subject to EU law, has proposed a new status known as “settled status” for EU migrants who meet the five-year entitlement by the agreed cut-off date.  For those who have not yet reached five years by the cut-off date, the UK proposes that they be allowed to stay until that point is reached, although an absence of two years or more would invalidate it.¹⁰

The EU may regard the British proposals as insufficient and weaker than retaining permanent residence status under the jurisdiction of the Court of Justice (CJEU).  The EU wants all EU27 citizens to have the right to permanent residence no matter how long they have been resident in the UK at withdrawal.¹¹  The EU may also challenge the UK’s decision to issue a separate document to the current documents for permanent right of residence, which would have to be obtained by all EU27 citizens, even those who already have proof of the right of permanent residence.

The EU also objects to the UK’s intention to subject applicants for settled status to a criminal records check and potentially deport those who had been sentenced to 12 months or more in prison (the UK currently applies the latter rule to non-EU migrants).  The EU thinks that such checks should only apply when there is reasonable suspicion that a person has such a conviction.¹²

Future changes to EU law

The EU wants EU27 citizens’ social security rights to reflect EU law even if that law changes subsequent to withdrawal.¹³  The UK proposals do include a continuation of the right to “export” benefits (i.e. to receive child benefit even though the child is not resident in the UK) but do not suggest that future changes to EU social security law should be reflected in the rights of EU27 citizens.

Dispute resolution procedure

The EU wants the Commission to have “full powers” to monitor the enforcement of EU27 citizens’ rights in the UK and for oversight by the CJEU, with a mechanism for UK courts to refer cases to the CJEU.¹⁴  The UK has said that the CJEU should not have jurisdiction in the UK after Brexit and wants its own courts to be responsible for enforcement.  These questions of enforcement and dispute resolution are considered in more detail in the Senior European Experts paper, Dispute settlement after Brexit.¹⁵

Resolution of these issues

With both the EU and the UK committed to resolving these issues as their first priority in the withdrawal negotiations, there should be a reasonable chance of doing so.  But there are real areas of disagreement; and that over dispute resolution could well prove to be the most difficult because there are important and wider issues at stake for both sides.