Professor Steve Peers*
Introduction
One of the most high-profile
issues relating to Brexit, which could potentially have the biggest direct
impact on the lives of the greatest number of people, is the issue of what
happens to UK citizens in the EU and EU citizens in UK after Brexit. This is
one of the first issues to be addressed in Brexit talks, and both sides have
now adopted their positions: the EU in the form of a Council
decision on the mandate for the Commission negotiators, back on May 22,
and the UK in the form of a UK
government proposal, released on June 26. As we can see from
these dates, it’s entirely false to suggest (as the UK Foreign
Secretary has done, for instance) that this UK government proposal came
first, with no EU position yet: it’s quite the opposite. (Equally it’s false to
suggest, as the Brexit
Secretary does, that among the EU institutions, only the EU Commission is demanding that the ECJ have
a role in the agreement).
This EU position also covers the
issues of the financial consequences of Brexit and its purely transitional
aspects (ie court cases pending on Brexit Day), which no published UK proposal
has addressed yet. However, I will focus solely on the citizens’ rights issues
for now. For the sake of simplicity, the relevant parts of the EU position are
repeated in the Annex to this blog post.
There is a basic choice to be
made whether the position of UK and EU citizens after Brexit is based on the ‘acquired
rights’ approach (ie retaining their status under EU law) or an approach based
on equality with nationals. As we will see, the EU takes the former approach,
while the UK takes the latter, even though during the referendum campaign the
Leave side promised acquired rights to both EU
citizens in the UK (‘no change’, ‘no less favourable’) and UK
citizens in the EU.
The EU position
Basically, the EU position follows
the ‘acquired rights’ approach, adopting a broad interpretation of that concept
to include rights which will vest in future as well as those ‘in the process of
being obtained’, specifically permanent residence status which can be obtained
under EU free movement law after five years’ continuous legal residence. It
explicitly covers both EU citizens in the UK and UK citizens in the EU,
including those who previously resided on one side or the other. Protection
will be based on equal treatment compared to nationals – reflecting the second
option for approaching the issue – for the lifetime of each person, via ‘smooth
and simple administrative procedures’.
The EU position goes on to define
the personal
scope of the deal: those covered by the EU
citizens’ Directive (workers, self-employed and economically inactive
people – implicitly subject to the limits in the Directive for ‘benefit
tourists’, as discussed here),
also including family members who arrive before or after Brexit Day. It will
also repeat the scope of the EU social
security Regulation, which addresses social security coordination in
cross-border situations as distinct from immigration status, including frontier
workers (ie those who work in the UK but live in France, or vice versa).
The material scope of the
deal (ie the rights to be protected) should include residence rights based on
the Treaties or the citizens’ Directive, as well as the procedural rules on
documenting those rights; the social security coordination rules, including
export of benefits and cumulating social security contributions made in
different countries; the supplementary rights in the Regulation
on free movement of workers, including workers’ children’s access to
education; access to self-employment; and recognition of qualifications which
were obtained before Brexit Day or which are in the process of being recognised
on that date.
As for enforcement, the EU side
wants this issue to be enforced by the ECJ, and the rules in the withdrawal
agreement to be enforced in accordance with pre-Brexit case law of the Court. A
separate
position paper makes clear that this refers to all of the Court’s current
jurisdiction, in particular references from national courts to the ECJ and
Commission challenges to the UK.
The UK position
Firstly, the UK paper states that
it will not alter the Common Travel Area arrangements between the UK and
Ireland (and the Crown Dependencies), including ‘the rights of British and
Irish citizens in each others’ countries rooted in the Ireland Act 1949’. To
that end, ‘Irish citizens residing in the UK will not need to apply for settled
status to protect their entitlements’. (It should be noted that some have questioned
how much the Ireland Act in fact
protects Irish citizens’ immigration status in the UK).
Next, the document suggests its
legal form: the government ‘undertakes to treat EU citizens in the UK according
to the principles below, in the expectation that the EU will offer reciprocal
treatment for UK nationals resident in its member states’. It’s not clear if
this is a unilateral offer conditioned on the assumption that the EU side will
match it, or whether it is a proposal to be subject to negotiations with the
view to being included in the withdrawal treaty. (At some other points, the
document refers to ‘negotiations’ and to an ‘international law’, however).
In detail, the UK government
states first that it will comply with EU free movement law until Brexit Day.
Next, post-Brexit it ‘will create new rights in UK law for qualifying EU
citizens resident here before our exit. Those rights will be enforceable in the
UK legal system and will provide legal guarantees for these EU citizens’,
alongside ‘commitments in the Withdrawal Agreement which will have the status
of international law’. The paper rules out ‘jurisdiction in the UK’ for the
ECJ. Furthermore, the government paper pledges to treat ‘all EU citizens equally’
compared to each other, although it is not clear how this fits with the special
dispensation for Ireland referred to at the outset.
While ‘qualifying EU citizens
will have to apply for their residence status’, the ‘administrative procedures’
to this end ‘will be modernised and kept as smooth and simple as possible’. But
this will be a national process: ‘a
separate legal scheme, in UK law, rather than the current one for certifying
the exercise of rights under EU law’. This means that the UK government ‘will
tailor the eligibility criteria so that, for example, we will no longer require
evidence that economically inactive EU citizens have previously held
“comprehensive sickness insurance” in order to be considered continuously
resident’. The words ‘for example’ there suggest that there might be other
(unspecified) differences between the criteria for obtaining status in the UK
for EU citizens.
As part of the process, ‘all
qualifying EU citizens will be given adequate time to apply for their new
residence status after’ Brexit. This will take the form of a ‘guarantee that
qualifying individuals will be granted “settled status” in UK law (indefinite
leave to remain pursuant to the Immigration Act 1971).’ This means ‘they will
be free to reside in any capacity and undertake any lawful activity, to access
public funds and services and to apply for British citizenship’.
To get this status, ‘the EU
citizen must have been resident in the UK before a specified date’, which is yet
to be defined; but it will be in between March 29 2017 when the Article 50
letter was sent, and March 29 2019, Brexit Day (the government is expressly
intending to negotiate this with the EU). They must also ‘have completed a
period of five years’ continuous residence in the UK before they apply for
settled status, at which point they must still be resident’. Since the criteria
are national, not based on EU law, the calculation of this period might differ.
As for ‘those EU citizens who arrived and became resident before the specified
date’ but who have not accrued five years’ continuous residence on Brexit Day,
they ‘will be able to apply for temporary status in order to remain resident in
the UK until they have accumulated five years, after which they will be
eligible to apply for settled status’.
On the other hand, those EU citizens who
arrive after the [un]specified date
‘will be allowed to remain in the UK for at least a temporary period and may
become eligible to settle permanently, depending on their circumstances – but
this group should have no expectation of guaranteed settled status’. This
category of people will therefore be treated quite differently than under the
EU proposal.
As for family members, any
‘family dependants’ who join a qualifying EU citizen in the UK before Brexit ‘will
be able to apply for settled status after five years’ (including where the five
years falls after our exit), irrespective of the specified date’. Again, it is
unclear what the definition of ‘family members’ will be. However, family
members arriving after Brexit will be subject to the same immigration rules as
the family of UK citizens, ‘or alternatively to the post-exit immigration
arrangements for EU citizens who arrive after the specified date’. This
suggests a willingness to negotiate special rules on this issue with the EU.
There will be an exclusion for ‘those
who are serious or persistent criminals and those whom we consider a threat to
the UK’; this might not match the rules permitting exclusion of criminals and
security threats set out in the EU legislation and ECJ case law. As for ‘benefits,
pensions, healthcare, economic and other rights, in the expectation that these
rights will be reciprocated by EU member states, the Government intends that:’ settled
EU citizens ‘will continue to have access to UK benefits on the same basis as a
comparable UK national under domestic law’; those EU citizens who arrived
before the specified date will ‘continue to be able to access the same benefits
that they can access now – (broadly, equal access for workers/the self-employed
and limited access for those not working)’, on their route to settled status.
If they later get settled status, they will have access to benefits ‘on the
same terms as comparable UK residents’. Also, export of benefits to the EU ‘will
be protected for those who are exporting such UK benefits on the specified
date, including child benefit, subject to on-going entitlement to the benefit’.
(Note that the right to export benefits will implicitly not be offered to those who arrive after the specified date).
Furthermore, ‘the UK will
continue to export and uprate the UK State Pension within the EU’; this mainly
concerns UK citizens retiring abroad, but some EU citizens will have acquired
such rights from their UK employment too. Other forms of social security coordination
will continue, including aggregation of national insurance contributions for UK
benefits and state pensions, even if granted after Brexit, and healthcare
arrangements set out in UK and EU law; in particular, the UK will ‘seek to
protect the ability of individuals who are eligible for a UK European Health
Insurance Card (EHIC) before the specified date to continue to benefit from
free, or reduced cost, needs-arising healthcare while on a temporary stay in
the EU’. Negotiations on ‘an ongoing arrangement akin to the EHIC scheme’ are
planned, but there is no reference to negotiations on the other social security
issues, even though it may prove technically and administratively difficult to
aggregate contributions and pay benefits without a formal basis for
cooperation. It is not clear if the UK plans to continue applying any of the
relevant EU legislation as such; if it does not, negotiations and
implementation of the rules will be more complicated.
Next, as regards education, the UK
government ‘will ensure qualifying EU citizens who arrived in the UK before the
specified date will continue to be eligible for Higher Education (HE) and
Further Education (FE) student loans and ‘home fee’ status in line with persons
with settled status in the UK’, as well as maintenance support (where it
exists) ‘on the same basis they do now’. Equal treatment in tuition fees
will still apply to those EU students who are enrolled during the 2017/18 and
2018/19 academic years ‘for the duration of their course’, along with ‘a
parallel right to remain in the UK’ for those students ‘to complete their
course’. (There’s no reference to a right to stay for other purposes after
Brexit). The UK government ‘will seek to ensure that citizens with professional
qualifications obtained in the EU27 prior to the UK’s withdrawal from the EU
will continue to have those qualifications recognised in the UK (and vice
versa)’. This matches the EU position, albeit with more equivocal language.
As for documentation, EU citizens
will need to obtain evidence of ‘settled status’ eventually, but they do not
need to apply now, although an application process will be set up prior to
Brexit ‘to enable those who wish to do so to get their new status at their
earliest convenience’. Those who have already got documentation of permanent
residence will have to apply again, but ‘we will seek to make sure that the
application process for settled status is as streamlined as possible’. Fees
will be set ‘at a reasonable level’. There will be a grace period of perhaps
two years while all EU citizens resident under the old system have an
opportunity to transition to the new one. If they fail to apply to be covered
by the new system, they lose their permission to stay.
Finally, the UK will ‘discuss similar
arrangements with Iceland, Liechtenstein, Norway and Switzerland’ which are
also subject to free movement rules ‘on a reciprocal basis’.
As for UK citizens in the EU, the
government says they ‘must be able to attain a right equivalent to settled status
in the country in which they reside’ and ‘continue to access benefits and
services across the member states akin to the way in which they do now.’ The UK
will also seek to ensure their continued right to establishment and
cross-border provision of services within the EU.
Comments
Since the EU position refers to
the continuation of existing law, there are few ambiguities in its meaning
(besides those inherent in that existing law anyway – for instance, the exact
status of same-sex marriages is pending before the ECJ, as discussed here).
There are still some vague points, however. Firstly, is the reference to those
who have previously resided in the EU or UK meant to be free-standing, or does
it simply refer to the more detailed rules set out in the EU legislation
referred to? (For instance, a UK pensioner living in Spain might be receiving a
UK pension on the basis of contributions made some years ago).
Secondly, it
seems that the reference to rights based on the Treaties covers non-EU parents
of UK children in the UK, ie the so-called Ruiz
Zambrano cases (see further discussion here).
Thirdly, would UK citizens resident in the EU on Brexit Day still retain the
right of free movement between Member
States – ie would a UK citizen in France on that day retain full free movement
rights to move on to Germany in future? Finally, how would each side
distinguish between those UK and EU citizens with acquired rights on Brexit
Day, and those (principally those who move afterward) who do not have such
rights?
In comparison, the UK position is
necessarily vaguer, since it does not refer to EU law as such. As noted above,
therefore, some of its key features are unclear, notably the definition of the
grounds for ‘settled’ status, the scope of persons who might be excluded from
that status, and family members. Much of the UK position uses ‘weasel words’
like ‘seek to ensure’ or ‘akin’.
To the extent that its content
can be discerned, the UK position is indisputably offering worse terms both for
EU citizens in the UK and UK citizens in the EU. First of all, the cut-off date
in the EU position is Brexit Day, whereas it might be earlier in the UK
position. The UK suggests that EU citizens in the UK might not be treated
equally even if they have permanent residence status by the cut-off date, since
they will have to transfer to settled status; the application process to that
end would not be necessary in the EU position. While the UK will exempt people
from the requirement to have Comprehensive Sickness Insurance, it has been argued
that the current UK law on this point breaches EU law anyway.
For those EU citizens who do not
have settled status by the cut-off date, or who arrive after the cut-off date
but before Brexit Day, they will be worse off than under the EU proposal, since
they will not be covered by EU free movement law as regards the acquisition of
EU permanent residence status. All categories of EU citizen will have a
diminished right to family reunion after Brexit Day.
For UK citizens in the EU, the UK
position that they should get settled status in the relevant EU country would
not necessarily ensure a right equivalent to EU free movement law permanent
residence status. Moreover, those who have not obtained such status as of
Brexit Day will not necessarily be able to obtain it as easily as EU citizens
do, since free movement law would no longer apply. The word ‘akin’ as regards
equal treatment is also vague. While the UK would aim to keep their right of
establishment and freedom to provide services, there is no reference to the
broader free movement rights arguably inferred by the EU position.
The two sides obviously also
differ on the role of the ECJ: it would keep its full current role under the EU
proposal, while lose its jurisdiction in the UK under the UK proposal. The
latter would leave it with jurisdiction over UK citizens in the EU, and
arguably a possible limited role in dispute settlement. Note that the UK
implicitly is willing to consider an alternative method of dispute settlement:
this could be a new court, a form or arbitration, or use of the existing EFTA
Court, which applies EU internal market and related law in Norway, Iceland and
Liechtenstein, subject to a requirement to apply ECJ case law adopted before
the date of the agreement and to take later case law into account. (This latter
requirement matches the EU position, and nearly matches the UK plans for the Great
Repeal Bill).
Taken as a whole then, the UK
position is much vaguer and offers significantly less to both EU citizens in
the UK and UK citizens in the EU than the EU position does, although the gap is
much wider for those who do not yet have EU permanent residence status. There
is also an enforcement gap as regards the role of the ECJ, although there are
precedents (notably the EFTA Court, agreements with Switzerland and Turkey) for
the EU not insisting that its citizens living outside the EU have their rights
enforced by the ECJ. Any compromise would most likely be based on: a) the EU
side accepting an alternative means of enforcement of rights other than the
ECJ; b) a cut off date of Brexit Day; and c) the two sides agreeing to base
protection on the acquired rights approach with certain exceptions (family
members admitted after Brexit, more stringent rules for those with criminal
convictions).
*This blog post was supported by an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'
Barnard & Peers: chapter 27
Barnard & Peers: chapter 27
Photo credit: Business Mirror
Annex
EU negotiation position
20 The Agreement should safeguard
the status and rights derived from Union law at the withdrawal date, including
those the enjoyment of which will intervene at a later date (e.g. rights
related to old age pensions) as well as rights which are in the process of
being obtained, including the possibility to acquire them under current
conditions after the withdrawal date (e.g. the right of permanent residence
after a continuous period of five years of legal residence which started before
the withdrawal date). This should cover both EU27 citizens residing (or having
resided) and/or working (or having worked) in the United Kingdom and United
Kingdom citizens residing (or having resided) and/or working (or having worked)
in one of the Member States of the EU27. Guarantees to that effect in the
Agreement should be reciprocal and should be based on the principle of equal
treatment amongst EU27 citizens and equal treatment of EU27 citizens as
compared to United Kingdom citizens, as set out in the relevant Union acquis.
Those rights should be protected as directly enforceable vested rights for the
life time of those concerned. Citizens should be able to exercise their rights
through smooth and simple administrative procedures.
21. The Agreement should cover at
least the following elements:
a) Definition of the persons to
be covered: the personal scope should be the same as that of Directive 2004/38
(both economically active, i.e. workers and self-employed, as well as students
and other economically inactive persons, who have resided in the UK or EU27
before the withdrawal date, and their family members who accompany or join them
at any point in time before or after the withdrawal date). In addition, the
personal scope should include persons covered by Regulation 883/2004, including
frontier workers and family members irrespective of their place of residence.
b) Definition of the rights to be
protected: this definition should include at least the following rights:
i) the residence rights and
rights of free movement derived from Articles 18, 21, 45 and 49 of the Treaty
on the Functioning of the European Union and set out in Directive 2004/38
(covering inter alia the right of permanent residence after a continuous period
of five years of legal residence and the right as regards access to health
care) and the rules relating to those rights; any document to be issued in
relation to the residence rights (for example, registration certificates,
residence cards or certifying documents) should have a declaratory nature and
be issued under a simple and swift procedure either free of charge or for a
charge not exceeding that imposed on nationals for the issuing of similar
documents;
ii) the rights and obligations
set out in Regulation 883/2004 on the coordination of social security systems
and in Regulation 987/2009 implementing Regulation 883/2004 (including future
amendments of both Regulations) covering inter alia, rights to aggregation,
export of benefits, and principle of single applicable law for all the matters
to which the Regulations apply;
iii) the rights set out in
Regulation 492/2011 on freedom of movement for workers within the Union (e.g.
access to the labour market, to pursue an activity, social and tax advantages,
training, housing, collective rights as well as rights of workers' family
members to be admitted to general educational, apprenticeship and vocational
training courses under the same conditions as the nationals of the host State);
iv) the right to take up and
pursue self-employment derived from Article 49 of the Treaty on the Functioning
of the European Union.
22. For reasons of legal
certainty, the Agreement should ensure, in the United Kingdom and in the EU27,
the protection, in accordance with Union law applicable before the withdrawal
date, of recognised professional qualifications (diplomas, certificates and
other evidence of formal qualification) obtained in any of the Union Member
States before that date. The Agreement should also ensure that professional
qualifications (diplomas, certificates or other evidence of formal
qualification) obtained in a third country and recognised in any of the Union
Member States before the withdrawal date in accordance with Union law rules
applicable before that date continue to be recognised also after the withdrawal
date. It should also provide for arrangements relating to procedures for
recognition which are ongoing on the withdrawal date.
41. The Agreement should include
provisions ensuring the settlement of disputes and the enforcement of the
Agreement. In particular, these should cover disputes in relation to the
following matters:
– continued application of Union
law;
– citizens' rights;
– application and interpretation
of the other provisions of the Agreement, such as the financial settlement or
measures adopted by the institutional structure to deal with unforeseen
situations.
42. In these matters, the
jurisdiction of the Court of Justice of the European Union (and the supervisory
role of the Commission) should be maintained. For the application and
interpretation of provisions of the Agreement other than those relating to
Union law, an alternative dispute settlement should only be envisaged if it
offers equivalent guarantees of independence and impartiality to the Court of Justice
of the European Union.
43. The Agreement should foresee
that any reference to concepts or provisions of Union law made in the Agreement
must be understood as including the case-law of the Court of Justice of the
European Union interpreting such concepts or provisions before the withdrawal
date. Moreover, to the extent an alternative dispute settlement is established
for certain provisions of the Agreement, a provision according to which future
case-law of the Court of Justice of the European Union intervening after the
withdrawal date must be taken into account in interpreting such concepts and
provisions should be included.
