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Citizens’ rights after Brexit - now some detail

THERE'S A bit more clarity on what will happen to our EU national colleagues living in the UK after Brexit - and to our many members who are UK nationals working in the EU - after the end of the transitional arrangements that are to follow Brexit.

The Future is Europe mural in Brussels; Photo: Matt Salusbury

A mural in Brussels to celebrate the 50th anniversary of the EU's founding treaty of Rome. But the future in the EU (and outside it, as of March 2019) remains uncertain for many.

There's some detail in the 15-page document Joint Report from the Negotiators Of The European Union and the United Kingdom Government on Progress During Phase 1 of Negotiations under Article 50 TEU on the United Kingdom's Orderly Withdrawal from the European Union released on 8 December. Sub-editors will note its inconsistent use of both curly and straight quotation marks, suggesting it may have been put together quickly.

Register to stay in UK - but not yet

Those EU nationals "legally resident" in the UK by the "specified date" (11pm on 29 March 2019, set as the moment of the UK's formal withdrawal from the EU) and those UK nationals living in other EU countries on that date will automatically meet the criteria for permanent residence in those countries. (But - see below!)

They will have two years from that date to complete their application for permanent residence and will enjoy all the rights they currently do until then. While the document didn't say it, it's since become apparent that EU nationals will need to have been "legally resident" in the UK for five years by the cut-off date - that is, since 29 March 2014.

Those who get permanent residency status will keep it as long as they don't leave the country for more than five years. Their family members, including unmarried partners and yet-to-born or yet-to-be-adopted children, can join them.

The UK and EU Member States "can require persons concerned to apply to obtain a status conferring the rights of residence... no status is obtained if no successful application is made. " So: yes, EU nationals who want to remain in the UK will have to apply to get a "residence document".

There's an assurance there will be "evidential flexibility" in such procedures, so it looks like bank statement, bills and the like will be enough to prove you live in the UK, although more detail is needed. The UK Government has since said most of the evidence needed can be gleaned from its own HMRC or DWP data.

Procedures for EU nationals registering for permanent residence in the UK will be "transparent, smooth and streamlined… proportionate" and "no more than is strictly necessary".

There's a pledge that the procedures to grant permanent residence will "avoid unnecessary administrative burdens". Application forms will also "be short, simple, user friendly". This is presumably a dig at the UK's current Permanent Residence application forms of over 80 pages.

So-called "competent authorities" must assist applicants in filling these forms out, even to the extent of having to point out to applicants their omissions. This somewhat naively assumes the Home Office is competent enough to organise a piss-up in a brewery.

"Criminality" and "security" background checks are allowed as part of this process, limited by existing EU Directives on matters of security and criminality. This appears to be one of the few concessions made by the EU.

Immigration Minister Brendan Lewis has since announced that the form to register for "settled status" in the UK will be an online one with between six and eight questions, with the process costing no more than the current £72 for a passport application and taking around two weeks. The requirement that EU nationals had health insurance to obtain permanent residence has gone.

Discrimination by nationality

The Joint Report expressly prohibits "discrimination on grounds of nationality" for EU or UK nationals. So those UK letting agencies or employers who ask for proof of permanent residency or offer different terms for EU nationals will still be in breach of UK law after Brexit.

Brief mention of the self-employed

Regulations on "social security aggregation" will apply - EU citizens in the UK will get the same rights to benefits they enjoy now, as well as transfer of pension entitlement and access to healthcare. EU Directives guaranteeing equal treatment of the "self-employed" and "economically inactive" EU citizens will still apply.

Paragraph 32 of the Joint Report appears to continue to recognise the EU qualifications of those EU citizens who get permanent residence in the UK and vice versa, but it's short on detail.

Domestic legislation - uh-oh!

The Joint Report is by seen by some commentators as a better deal for EU nationals than the one restricting access to benefits negotiated by then PM David Cameron in February 2016, in the run-up to the EU referendum. But the report itself warns (sorry, notes) that the UK Parliament can later repeal the promised legislation guaranteeing EU citizens' rights.

At the end of an eight year period (so from 2027) "national laws" will apply instead of EU Directives, raising the prospect of a whole new world of uncertainty all over again for EU nationals in the UK and vice versa from that date. Meanwhile, there's a promise that "domestic legislation will be enacted" to give EU citizens in the UK and UK citizens in the EU the same rights they have now. Look out for the forthcoming UK Withdrawal Agreement & Implementation Bill.

There are some important extra protections for EU nationals, but only temporary ones. Cases in the British courts involving EU citizens' rights will for eight years after the 29 March 2019 withdrawal date "be interpreted in line with the case law of the Court of Justice of the European Union (CJEU)", with the British courts seeking rulings from the CJEU (also known as the European Court of Justice) until then.

Free movement of Irish citizens to and from the UK is guaranteed under the Common Travel Agreement, which predates the EU. The UK re-asserts in the Joint Report that it will not place any new "regulatory burden" on movement between itself and the Republic of Ireland, although it appears to allow the Northern Ireland Executive and Assembly to legislate "distinct arrangements" in the future.

The Joint Report notes that we can expect "more detailed consensus between the Parties" to be published in "the latest joint technical note" shortly.

UK nationals in the EU

This latest deal doesn't appear to offer such a good deal for UK nationals in the EU. They can establish permanent residence in the EU country where they live and work now, but can't subsequently move freely to another EU Member State. There's nothing about continued visa-free travel to EU Member States - of particular concern to UK journalists - and there's no guarantee they any of them won't at some time in the future demand a "media visa" for UK journalists.

It's a big ask to expect all 27 EU member states to enact their own laws guaranteeing the rights of EU nationals, and to keep them on the statute books forever.

For UK nationals in the rest of the current EU, the procedure for registering to stay after Brexit should be easier than in the UK. In most Member States, everyone is already expected to go and get their name added to the population register at the local authority or police station, and everyone's obliged to do so every time they move house (and to sign out of the national population register when they go to live abroad.)

Some Member States seem to enjoy ignoring EU Directives - see, for example, Italy's treatment of foreign university lecturers from the rest of the EU over the years. The ability of the EU to enforce its Directives in such cases has proven limited.

Our EU citizens

The Joint Report was followed by an open letter from Prime Minister Theresa May to "our" EU citizens, in which she told them "I want you to stay."

May's letter pledges that "When we leave the European Union, you will have your rights written into UK law. Your rights will then be enforced by UK courts."

She promises that there will be a "new settled status scheme under UK law for EU citizens and their family members". (The words "settled status" aren't used in the Joint Report or by the EU, though.) EU citizens will still be entitled to a UK European Health Insurance Card, May assured us. The minority of EU citizens who already have a Permanent Residence document can get it converted to "settled status" for free. May added: "So right now, you do not have to do anything at all." We're waiting to see whether lawyers would agree: should EU nationals still need to go through the old 85-page Home Office form for permanent residence as a prelude to getting UK citizenship, for example?

There are only three brief references in May's letter to the rights of UK nationals living in EU countries, mainly to say in passing that they will taken care of as well.

Watch this space, possibly not in a good way

A done deal on citizens' rights? Not exactly. The UK Government's apparent ability to snatch defeat from the jaws of victory in progressing Brexit negotiations means the all of the above deal can still be messed up.

Within days of the Joint Report, Brexit Secretary David Davis appeared to be already backtracking on some of its provisions. Davis commented that the deal was just a "statement of intent". This caused European Parliament Brexit coordinator Guy Verhofstadt to respond that such comments were "unhelpful". The European Parliament then passed a resolution on "comments like those by David Davis". Davis has since pledged to enshrine the deal in UK legislation as soon as possible.

Also missing is a credible assurance that the proposed deal on rights of EU nationals still stands if the UK crashes out of the EU in a "no deal" scenario.

Oxford University's Migration Observatory predict that "hundreds of thousands" of EU nationals won't be able to produce sufficient evidence that they've been in the UK for the required five years to get settled status. These include pensioners with no recent work record, or those paid cash, or those with long absences from the UK.

The European Parliament still threatens to veto the final EU-UK withdrawal deal over "citizen's rights": it wants EU nationals to have the right to remain in the UK for life. The Republic of Ireland threatens a veto of the deal over any unresolved Irish border issues.

Bremain in Spain (an advocacy group for UK nationals in Spain) described the deal as "incomplete", with citizens for now "buried under talks about trade and transition" and UK nationals in the EU "not celebrating".

  • All these fast-moving developments have made the Brexit update in the December print edition of the Freelance - which should have recently reached members - instantly out of date. The Freelance regrets that the mailing dates of its print editions are outside its control.