EU free movement law gives EU citizens the right to live, work and study in other Member States.
One of the big Brexit questions is what will happen to people who have used these rights to set up home elsewhere. Will EU nationals be allowed to stay in the UK and UK nationals in their home EU Member State? And if so, under what conditions?
The proposed Withdrawal Agreement protects many of these rights. It gives a right to stay to current residents, children and close family members, as well as those arriving in the transition period (i.e. the end of 2020 unless extended). It also provides protections for social security and pension contributions and lays down requirements for state registration systems (e.g. the UK’s settled status scheme).
It’s not clear though whether these rules will come into force as the House of Commons rejected the Withdrawal Agreement in its “meaningful vote” on 15 January 2019.
As Brexit Day (March 29) is fast approaching, it is worth considering what might happen to citizens’ rights if there is no deal with the EU.
EU citizens in the UK
Up until recently, the UK Government had refused to unilaterally guarantee the rights of EU citizens living in the UK, arguing that the issue was one for negotiation with the EU.
However, on 6 December 2018, it published a paper stating that EU citizens who are resident in the UK before Brexit Day will be granted a right to remain and to work, study, and access benefits and services if there is no deal.
The paper explains that, if there is no deal, the UK will operate its now free settled status scheme largely in line with the Withdrawal Agreement.
EU citizens who are in the UK by Brexit Day will have until 31 December 2020 to apply for settled status. Those granted settled status will have the right to remain and to leave the UK for up to five years without losing the right to return.
Those who have not yet lived in the UK for five years will be granted “pre-settled status” and will have to apply for settled status once they reach the five-year point.
This proposed unilateral guarantee clearly provides more certainty for EU citizens than if the UK had chosen to do nothing in the event of no deal.
It does, however, cover less ground than the Withdrawal Agreement. For example:
- As no deal means no transition period, any EU citizens arriving after Brexit Day will not qualify for settled status.
- Disputes will be dealt with in the UK courts – the European Court of Justice will not have jurisdiction.
- Stricter UK rules on family reunion will eventually kick in, rather than the EU ones in the Withdrawal Agreement.
It has also been argued that there is a lack of clarity as to future rights to benefits and services. The UK paper indicates that access to these will be, “on broadly the same terms as now”, but doesn’t define this term, and it is also not clear under what circumstances benefits can be received (e.g. child benefit) if people decide to live outside the UK.
Finally, as the UK doesn’t have a written constitution, and since the offer is a unilateral one which isn’t backed up by international law, it could be subject to change by both current and future parliaments.
No deal would also lead to similar problems in relation to Switzerland and the EEA EFTA states – Norway, Iceland and Liechtenstein. The UK Government has reached an agreement with Switzerland on citizens’ rights and is in the process of finalising no deal arrangements with the EEA EFTA states.
UK citizens in the EU – residency rights
The European Commission also refused to unilaterally guarantee the rights of UK citizens living in the EU, preferring to deal with the issue in the negotiations for the Withdrawal Agreement.
However, it has now also published papers on citizens’ rights in the event of a no deal.
These emphasise that Member States should take pre-Brexit periods of residence into account when considering UK citizens’ long-term residence applications under EU law (five years’ residence would be needed).
However, much of the Commission’s approach involves calling on Member States to take their own action. For example, to ensure that Member States issue residence permits (including temporary ones) to UK citizens (see the Commission’s Q&A on the consequences of a no deal).
As a result, various Member State have published proposals for protecting the rights of UK citizens if there is no deal. These include: the Netherlands, Belgium, France, Italy, Germany, Spain, Denmark, Sweden, Portugal, Poland, and the Czech Republic.
The focus on action by Member States has, however, led to criticism from campaigners. For example, Jane Golding, Co-Chair of British in Europe stated that:
“In practical terms with only 100 days to go, the Commission is merely asking the EU 27 to make sure we can still be considered legally resident on 30 March 2019 and stand ready to issue documents to provide evidence of that. This will be a massive and overwhelming task in some countries.”
A number of MEPs have recently called on the Commission to take unilateral action to protect citizens’ rights after Brexit as has the UK academic Professor Steve Peers who argues that the EU has the legal powers to legislate in this area.
UK citizens in the EU – no continued free movement
A longstanding criticism of the negotiations between the EU and UK is that, even if UK citizens are granted residence rights in the Member State where they live, they will lose the right to move to or work in other Member States as they will no longer be EU citizens.
The European Parliament passed a resolution in March 2018 insisting that UK citizens in the EU are granted continued free movement post Brexit. However, this right was not included in the Withdrawal Agreement or in the Commission’s no deal papers.
One of the main criticisms made by UK and EU citizens is that they have had to deal with more than two years of uncertainty on what their status will be after Brexit.
The plans by the UK and EU provide some clarity on what would happen if there is no deal. However, they don’t fully replicate existing rights (or those in the Withdrawal Agreement) and largely depend on national immigration systems (including the UK’s settled status scheme).
Faced with continuing uncertainty, it seems that an increasing number of EU and UK citizens (e.g. in Spain) are choosing to apply for citizenship to protect their rights. However, not all countries allow for dual citizenship and the process of applying for citizenship is often expensive and time-consuming. It is, therefore, not a solution for everyone.
Senior Researcher, Justice Health and Social Affairs Research Unit