- This note provides an update on the position in respect of the movement of EU citizens, including British citizens, around the European Union, in the context of negotiations between the European Commission and the United Kingdom on the Withdrawal Agreement.
2. It is divided into three parts:
- The position of EU citizens in the United Kingdom prior to exit (and of British citizens in the EU 27 Member States);
- The position of EU citizens migrating to the United Kingdom after exit (and vice versa); and
- The position of persons in the United Kingdom by virtue of EU law prior to exit, who are left out of any arrangements to be included in the Withdrawal Agreement.
The position of EU citizens in the United Kingdom prior to exit (and of British citizens in the EU 27 Member States)
(i) The September 2017 Joint Technical Note
- The last EU-UK joint technical note on the comparison of their positions in respect of Citizens’ rights was published on 28 September 2017. There were supposed to be further joint technical notes following monthly negotiations between the UK and the European Commission in October and November, however those talks did not proceed as planned, and therefore there were no further joint technical notes.
- The September joint technical note sets out areas of agreement on citizens’ rights on and after the UK’s withdrawal from the EU, set out areas where further work is needed, and identifies areas where there are disagreements that have yet to be resolved.
- Whilst there is agreement across many areas of rights as regards the position of EU Citizens present in the United Kingdom before the exit date, there is not complete agreement. This note focuses on the remaining areas of disagreement.
(1) The basic idea
- As regards areas of agreement, the gist is that EU citizens and their family members who are exercising rights of residence in the UK prior to exit, will be allowed to complete the five-year path to acquisition of the right of permanent residence after exit on the terms provided for in Directive 2004/38/EC. Further, all persons who have the EU right of permanent residence will be eligible for the UK Settled Status (essentially a form of indefinite leave to remain, the conditions for grant of which will be regulated by the Withdrawal Agreement) after exit.
- In addition, the Prime Minister’s Florence Speech in September 2017 sets out the UK proposal for a two-year ‘implementation period’ (to March 2021) after exit, during which EU citizens will continue to be able to arrive in the UK and work on current terms. After the ‘implementation period’, new arrivals would be subject to new UK Immigration Rules.
(2) family members
- There is no agreement between the UK and the EU on the position of family members who join an EU citizen in the United Kingdom after the UK’s exit from the European Union. The EU position is that family members who join the EU citizen in the United Kingdom for the first time after exit ought to enjoy free movement rights as currently provided by Directive 2004/38/EC. The EU also considers that children born after the UK’s withdrawal from the EU ought to be able to reside with their parents in the UK as a family member on the same basis. The United Kingdom disagrees. The UK wishes to apply domestic United Kingdom Immigration Rules to the position of both classes of persons (though this would not appear to apply in the two-year implementation period, given the Prime Minister’s Florence Speech). Those rules are considerably less generous than the family reunion provisions of Directive 2004/38/EC.
(3) The Court of Justice
- There is no agreement as regards the role of the Court of Justice of the European Union (CJEU), as a Court to which a reference can be made from a national court, were a dispute to arise as to the interpretation on application of citizens’ rights preserved under the Withdrawal Agreement. The EU wishes for the CJEU’s competence to continue as currently set out in Article 267 of the Treaty on the Function of the European Union (TFEU); the United Kingdom’s position is that UK Courts will be able to take into account future CJEU case law but it does not go further in specifying the role for the Court.
(4) A Surveillance Authority
- There is also no agreement on a surveillance authority to monitor citizens’ rights. The EU would like the European Commission to monitor compliance under the Withdrawal Agreement. The United Kingdom does not agree with that proposal but is prepared to consider an independent monitoring arrangement.
(5) British citizens in the EU 27 Member States
- As regards the position of British citizens in the other EU 27 Member States after exit, the European Commission position is that British citizens within the scope of the Withdrawal Agreement will only have protected rights in the Member State in which they have residence on exit day; the United Kingdom position (ironically) is that British citizens should be able to move freely within the EU 27, keeping all existing rights. In return the United Kingdom is prepared to offer EU citizens who have right of permanent residence in the UK a guaranteed right of return to the UK, even if they have been away for more than two years.
- As regards behaviour amounting to grounds for expulsion, the EU position is that restrictions on the exercise of rights in the United Kingdom ought to be at the standard of those relating to public policy, public security and public health, as currently set out in Directive 2004/38/EU; the United Kingdom position is that expulsion in relation to post-exit activity should be assessed purely under United Kingdom Immigration Rules.
- As regards the issue of documents to persons who are in the United Kingdom, the the European Union wishes such documents issued to EU citizens present in the United Kingdom after exit to continue to be declaratory in nature, as is the case under Directive 2004/38/EC. The United Kingdom disagrees. Its position is that while the documents will be protected under the Withdrawal Agreement, and that the United Kingdom will not have discretion to refuse such documents other than for reasons that are allowed by the Agreement, those documents themselves will not be merely declaratory but will constitute a grant of status.
- As regards current holders of permanent registration certificates and permanent residence cards under EU law, and as regards those persons that have the EU right of permanent residence but no documents to evidence the same, the European Commission considers that such persons present in the UK ought to be considered to be legally resident after exit. However, the position of the United Kingdom is that new documents allowing for so-called ’Settled Status’ will be required, albeit that such documents will be accessible on what it avers will be a straight forward and reasonably easy-to-access basis.
- As regards checks on EU citizens seeking Settled Status documents in the United Kingdom after exit, the EU position is that criminal checks cannot be considered systematically, while the UK position is that criminal checks are necessary and that the UK intends to ask all applicants for post-exit documents to declare criminality.
(8) Social Security (i.e. contribution-based or universal, but not means-tested)
- On the co-ordination of Social Security rights and healthcare benefits in kind under Regulation 883/2004, much progress has been made. However, there remain minor areas of disagreement.
(9) Professional qualifications
- On the question of the protection of recognition of professional qualification for persons subject to the Withdrawal Agreement, the EU position is that the personal scope extends to EU citizens resident in the United Kingdom before the withdrawal date and vice versa, as well as equivalent protection for frontier workers; the United Kingdom position is the right to have a professional qualification recognised should not be tied to residency.
- As regards professional qualifications and the question of equal treatment, the EU position is that full equal treatment with national professionals, pursuant to Articles 45 and 49 TFEU, ought to be the position where professionals are resident in the United Kingdom before the withdrawal date and vice versa. The United Kingdom position differs in so far as that it considers there ought to be full equal treatment for professionals who are resident in the United Kingdom on a specified date and vice versa, but only relevant equal treatment for those who are neither frontier workers nor resident on the specified date. Two points arise from this: (1) when is the specified date, and (2) what constitutes relevant as oppose to full equal treatment?
- There is also disagreement on the question of professional qualifications that are unrecognised on the exit date and/or subject to an ongoing recognition procedure on the exit date. The EU position is that such matters are outside the scope of negotiation, while the UK position is that such professional qualifications can be recognised after the exit date. The material scope of these provisions includes lawyers practicing under home title under Directive 77/249/EEC and Directive 98/5/EC (services and establishment under home title).
- As regards territorial scope, the EU position is that recognition of professional qualifications should be limited to the issuing State, with no subsequent single market rights and no recognition of decisions in Member States other than the State where the British citizen is residing or working as a frontier worker; whereas the UK position is that there ought to be a right to have the qualification recognised and to practice a profession across the United Kingdom and all 27 EU other Member States.
- As regards the Withdrawal Agreement and its territorial scope, the EU position is that the Agreement is to be confined to British citizens residing or frontier working in an EU 27 Member State and vice versa at the time of withdrawal; the UK position is that rights for British citizens residing or frontier working in and across all EU 27 Member States (this is in effect a request for free movement for British citizens who are lawfully resident in one Member State) and vice versa.
(ii) The November 2017 UK Note
- Of course the position has moved on since September 2017 as between the parties, however there are very few indications in the public domain of what the joint position is at present.
- On 7 November 2017 the United Kingdom published its own technical note on citizens’ rights and administrative procedures in the United Kingdom. This note staetd that the UK will be bound by the obligations set out in the Withdrawal Agreement as a matter of international law.
- It notes that the Withdrawal Agreement will contain provisions to confer status and rights on EU citizens and their family members who fall within its scope. Further, it confirmed that that the Withdrawal Agreement will be embedded in UK law, something that will permit EU citizens to enforce their rights in UK courts and tribunals.
- Status documents obtained under the Withdrawal Agreement are to be obtained by application to UK authorities, such applications to be made within a specified period of time after exit. Obtaining a status document will be a condition for lawful residence in the United Kingdom. The UK envisages a streamlined application system.
- The November 2017 Note recognises the scale and challenge of granting status to more than three million EU citizens and their family members. In order to meet this challenge the plan is that there will be a voluntary application process to begin before the UK leaves the EU. Even with that assistance the UK estimates that the period needed for individuals to make an application after exit will need to be around two years (i.e. the ‘implementation period’ after exit). The fee for making such an application is not to exceed the cost of a British passport.
- The November 2017 Note refers back to the Prime Minister’s speech in Florence in September 2017 and notes that people will be able to come and live and work in the United Kingdom on current terms during the ‘implementation period’ (about two years) after the UK leaves the EU.
- Decisions made on whether to grant the new Settled Status to EU citizens will be made within the scope of the Withdrawal Agreement. The UK authorities will have no discretion to refuse an application on any other basis.
- It should be noted that documents conferring Settled Status will not allow Third Country National family members of EU citizens to travel around the other EU 27 Member States without a visa, in the way that an EU Residence Card issued in the United Kingdom under Directive 2004/38/EC presently allows such persons to do so. The UK Government and the European Commission appear to have overlooked this point.
- The November 2017 Note takes the point that, as regards EU citizens seeking a right of residence on the basis of being self-sufficient, the UK intends to adopt a pragmatic approach and not to check whether or not a person has comprehensive sickness insurance.
- It also says that the UK will not be applying the ‘genuine and effective’ work test to those who assert that they are economically active and derive a right of residence thereby.
- Whether or not these two positions hold remains to be seen. As regards self-sufficient persons, it is not clear what yardstick the UK will impose to determine whether or not a person is self-sufficient. There is some uncorroborated comment that suggests that the UK will not even ask for a person to prove that they are self-sufficient but merely ask whether they are resident or present in the United Kingdom for five years, in order to take the period of time into account for the purpose of determining whether or not a person has acquired Settled Status.
- The default period for obtaining Settled Status is five years’ continuous residence. Such periods of time may be completed after exit date for persons who fall within the scope of the Agreement.
- It is the United Kingdom’s intention to apply the principle of evidential flexibility, enabling caseworkers to exercise discretion where appropriate. It is also the UK’s intention to have an administrative review mechanism to reconsider adverse decisions. There is also to be a statutory right to appeal to UK Courts (the Note does not specify the First-tier Tribunal) to examine the legality of a UK’s authority’s decision to revoke or to refuse Status.
- As noted above, the so-called ‘implementation period’ after exit, for obtaining Settled Status will be around two years. However the UK has indicated it will take a proportionate approach to those that miss the deadline for making an application.
- As regards pre-exit criminal conduct. persons may only be denied Settled Status under the Withdrawal Agreement where the public policy and public security thresholds apply as set out in Directive 2004/38/EC. The United Kingdom position is that post-exit criminal conduct will be judged according to domestic criteria set out in the Immigration Rules.
- The United Kingdom states that it accepts that, on a reciprocal basis, EU Member States may apply measures which depart from the public policy expulsion criteria found in Directive 2004/38/EC in respect to expulsions from their territory of British citizen criminals otherwise protected by the Agreement.
(iii) The position today
- Neither the Joint Technical Note of September 2017 nor the UK’s Note of November 2017 necessarily represent the current up-to-date position. The question of what further areas of agreement have been reached between the EU and the UK as part of the negotiation for Stage One of the Article 50 talks remains unclear. There may well be further areas of agreement. However there is no publicly published information to that effect. Uncorroborated accounts of what has been agreed since 7 November 2017 should be treated with caution, as they may not reflect the final position.
- As regards to EU citizens and their family member in the UK prior to exit date, the issues that matter to them are as follows:
- The preservation of the full extent of their EU rights under EU law in United Kingdom domestic law (including the general principles of EU law);
- The need to keeping pace with EU law for those who have rights derived from EU law;
- The need to maintain a Surveillance Authority such as the European Commission or the EFTA Surveillance Authority;
- The need to maintain the role of an independent Court to interpret rights arising out of EU law (such as the CJEU or the EFTA Court);
- The need to preserve acquired EU rights such as the path to permanent residence, after the end of implementation period;
- The need to preserve the current document regime where documents are declaratory rather than constitutive of the right to reside;
- The desire to avoid any new administrative burden;
- The maintenance of full co-ordination of social security and health care benefits as currently provided for under Regulation 883/2004;
- The preservation and protection of full access to social assistance on an equal basis with British citizens for EU citizens and their family members exercising EU Treaty rights (including any in-work benefits such as housing benefit and working tax credit); and
- A desire to revise the domestic transposition of Directive 2004/38/EC as found in the Immigration (European Economic Area) Regulations 2016, so as to ensure the correct basis for the application of EU law.
- In public domain the UK has not spoken about those EU citizens who have been present in the United Kingdom but who do not currently exercise rights of residence under Directive 2004/38/EC. There will be many such persons who have been in the UK for a number of years. Such persons include EU citizens who are married to British citizens, where the EU citizen does not work and the couple are not self-sufficient. They will also include EU citizens present in the UK who are long-term sick or who have disabilities. Such persons will be neither economically active nor self-sufficient. In those circumstances they will not enjoy EU rights of residence. Such persons will have been in the UK for many years. There will be hundreds of thousands of such persons who have no obvious route to Settled Status but who nonetheless are integrated into UK society.
- There is also concerns that UK plans take no account of the fact that the EU right of permanent residence under Directive 2004/38/EC is acquired ordinarily in five years but also on occasion in less than five years. For example acquisition in periods of three years or two years is possible where a person ceases work for a particular reason. There appears to be no provision made for persons to acquire Settled Status in less than five years.
- No provision appears to have been made for nationals of EFTA States, Norway, Iceland, Liechtenstein and Switzerland.
The position of EU citizens migrating to the United Kingdom after exit (and vice versa)
- There is no detail on the position of EU citizens and their family members who arrive in the United Kingdom after exit date (and vice versa) and after the end of the two-year implementation period. Detailed proposals are needed in the following areas:
- Economic migration (work and self-employment): will prior authorisation be needed to work? If so, when?
- Family reunion: what criteria will be applied?
- Study: what criteria will be applied?
- Self-sufficiency: what criteria will be applied?
- Visas: when, if at all, will they be needed?
- The provision of services: Who will be able to travel to fulfil short-term service contracts and will prior authorisation to work be required (such requirements can impose costs and delays that frustrate service-provision)?
- On arrival at port: will an EU citizen has automatic (deemed) leave to enter the United Kingdom?
- What is to happen to the Common European Asylum System, including the Dublin Regulation for the return of asylum seekers to the first EU Member State from which they entered the UK?
- Will British citizens be able to migrate from one EU Member State to another around the EU under one set of economic migration rules? At present in-bound economic migration from outside the EU to an EU Member State is not harmonised at EU level, so a British citizen potentially faces 27 different economic migration regimes were he or she to wish to work in or around the European Union after exit?
- There is also a question as to whether home fees for higher education and further education will continue to be available to EU citizens migrating to the UK after exit date for the purposes of study in British universities. The impact of withdrawing home fees rates for EU citizens migrating to the UK for the purposes of study will have a great impact on the university sector.
- There is no indication from the UK government that persons will be allowed to migrate to the UK from remaining EU Member States in order to work as self-employed persons after exit . Those EU citizens who currently come to the UK who establish themselves as self-employed or who establish companies in the UK will not be able to do so after exit if no provision is made to allow that to continue. Without it entrepreneurial EU citizens who migrate to the UK at present will no longer come, to the advantage of the remaining Member States.
- There is also detail on the short-term service provisions that will apply in the UK immigration regime after exit. Nor is there a commitment that EU citizens and British citizens will be able to travel back and forth to one another’s countries without required prior authorisation to work, in order to fulfil short-term service contracts.
- The United Kingdom economy depends particularly on the provision of services. Without a guarantee that short-term service provision will be facilitated by:
- allowing a person to be admitted to the host country simply on presentation of a passport, and
- thereafter allowing them to fulfil their service contract without obtaining prior work authorisation,
the position of the United Kingdom to provide cross-border services will be compromised.
- No statement has been made about access to in-work benefits such as housing benefit or tax credits. This is important as any EU citizens who are admitted to the United Kingdom to do low-skilled and skilled work after exit and after the ‘implementation period’ may well be authorised to do so under Immigration Rules, however such authorisation will be of no account if they are not able to access in-work benefits.
- British citizens access housing benefit and/or working tax credits on the basis they meet the income threshold requirement for such benefits, notwithstanding that they are in work. Low and middle-income work is insufficiently paid to cover living expenses. It is the existence of in-work benefits that allows the minimum wage to be set at such a low rate. Any immigration policy to allow EU citizens to work in the UK, say in seasonal agricultural work, needs to be buttressed by access to in-work benefits if it is to be a success.
- As to the question of EU citizens from other EU Member States migrating to the United Kingdom after exit and after the ‘implementation period’ for the purposes of economic migration, there are no proposals as to what sort of regime the United Kingdom envisages. This is stopping EU citizens and businesses from planning effectively. Persons migrating to the United Kingdom need to know in advance of making their plans what the rules are for them to be admitted to the United Kingdom, the basis upon which they will be lawfully resident here, and further the basis upon which they will be allowed to obtain settlement and ultimately citizenship. Rival jurisdictions offer such migration and settlement packages so that any person considering migrating outside his or her home state can plan their life accordingly. The UK needs an appetising and competitive migration and settlement package for economic migration.
- Any economic migration scheme or package that requires prior authorisation to work, sponsorship, and/or a UK visa in order for a person to come to the United Kingdom for work, at whatever level, will impose a barrier to movement of labour which is not currently found.
The position of persons in the United Kingdom by virtue of EU law prior to exit, who are left out of any arrangements to be included in the Withdrawal Agreement.
- There are classes of persons who are not catered for in the UK-EU negotiations on the Withdrawal Agreement, who currently enjoy rights under EU law. They include:
- Person enjoying the initial rights of residence for up to three months under the Directive 2004/38/EC;
- Certain children in education who enjoy the rights of residence under Directive 2004/38/EC;
- Persons who retain rights of residence under 2004/38/EC where such rights to do not lead to the EU right of permanent residence;
- The primary carers of British citizen children who derive rights from Article 20 TFEU, as interpreted by the Course of Justice in the case of Zambrano;
- The primary carers of EU citizen children who are self-sufficient, who derive rights as set out in the case of Chen by the Court of Justice;
- Family members of British citizens who have exercised rights of residence in other EU Member States and who return to the United Kingdom, where such family members seek admission to the UK under EU family reunion rules, as set out in the Surinder Singh case among others;
- EU citizens who have acquired British citizenship having exercised rights of residence in the United Kingdom, who seek to be joined by their family members under EU family reunion principles, following the Lounes case at the Court of Justice;
- The position of frontier workers;
- The position of third country national workers posted under Article 56 TFEU (so-called Van der Elst posted workers);
- The children in education of former migrant workers who have derived rights of residence from Article 10 of Regulation 492/2011;
- Persons who derive rights under EU international agreements, for example with the EFTA states or Chile;
- Persons with rights of residence derived from the association agreement between the European Union and Turkey (the so-called Ankara Agreement), this applies to persons who are both businessmen and workers; and
- Persons resident outside the United Kingdom after exit who have resided in the United Kingdom exercising EU Treaty rights at some point prior to exit.
- It is unclear what the United Kingdom position is across many of these areas. The result is unsatisfactory. This note should be regarded as work-in-progress. It will need to be updated on 14 December 2017 or as soon as possible thereafter to update the position in respect of Stage One of the Withdrawal negotiations.