Professor Steve Peers, University of Essex*

After resisting guarantees for EU27 citizens’ rights in the UK for over two years, the UK government has finally issued a plan outlining the treatment of EU27 citizens in the UK and UK citizens in the EU27 in a “no-deal” Brexit scenario. This comes as the UK Parliament prepares to vote on the withdrawal agreement and after the European Commission published its own position on this matter.

EU27 citizens in the UK

The UK proposes a “settled status” scheme similar to that in the withdrawal agreement, allowing EU27 citizens a five-year period to depart and return. However, this lacks the legal binding of an international agreement, meaning the UK government could alter the terms later. While the government doesn’t intend to change the qualifications for settled status currently, it could modify rules concerning unemployment benefits for workers, the definition of “worker,” or permanent residence requirements in the future.

The absence of a transition period until the end of 2020 (or 2022) as outlined in the withdrawal agreement would affect EU27 citizens arriving after Brexit Day. They wouldn’t qualify for the settled status scheme, the registration deadline for which would be moved to the end of 2020. The UK’s lower threshold for deportation following criminal convictions would apply to offenses committed after Brexit Day, not the transition period’s end.

Family reunification under EU regulations would be subject to two cutoff dates. Firstly, family ties established before Brexit Day would be recognized for three years, allowing for reunification. Secondly, EU citizens granted settled status could use EU regulations for family ties formed after Brexit Day if reunification occurs before 2021. After that, stricter UK regulations would apply, contrasting with the withdrawal agreement, which applies EU rules without a time constraint as long as the family connection existed before the transition period’s end.

Institutionally, the Court of Justice of the European Union (CJEU) would hold no jurisdiction over EU27 citizens in the UK in a no-deal Brexit, unlike the eight-year jurisdiction provided by the withdrawal agreement. It remains unclear whether the independent monitoring body for EU27 citizens’ rights, stipulated in the withdrawal agreement, would be established. Instead of a right to appeal, EU27 citizens would have access to administrative and judicial review.

Equal access to benefits and education would be provided “broadly on the same terms as now,” though the meaning of this qualification needs further clarification. Exporting benefits, such as those for children of Polish workers in the UK who reside in Poland, is not addressed. Qualification recognition depends on applications submitted before Brexit Day or existing recognition.

UK citizens in the EU27

The UK government acknowledges its limited influence over the situation of UK citizens in the EU27 post-Brexit. However, the government commits to increasing pensions for UK citizens residing in the EU27, conditional on reciprocal agreements. Notably, no mention is made of EU27 citizens who’ve contributed to the UK state pension and returned to the EU27. UK citizens returning to the UK would retain equal access to the NHS.

Worryingly vague statements are made regarding non-UK family members of returning UK citizens (including those with EU and non-EU family members). For consistency and protection of family life, upholding the government’s commitment to apply EU free movement rules to UK citizens returning with their families before 2021 would be sensible.

Negotiations will determine the cumulation of social security contributions (e.g., combining contributions made in the UK and France). The UK pledges voting rights for EU27 citizens in the May 2019 English local elections (with no mention of future elections), while voting rights in Scotland and Wales fall under devolved governments. Reciprocal voting rights for UK citizens in the EU27 are sought. It’s important to note that the withdrawal agreement doesn’t cover voting rights due to their connection to EU citizenship, and these rights are explicitly excluded from the transition period regulations.

The Commission’s paper on the no-deal scenario states that UK citizens could seek long-term residence status as non-EU citizens based on existing EU law. However, no mention is made of UK citizens ineligible for this status, such as those who’ve resided in the country for under five years.

EFTA States

Regardless of a deal with the EU, the UK seeks an agreement with EFTA States (Norway, Iceland, Switzerland, and Liechtenstein) to ensure EFTA citizens in the UK and UK citizens in EFTA states experience “broadly” the same rights as they do currently. However, specifics regarding these rights are absent.

Comments

The UK government’s plan clarifies that EU27 citizens in the UK would retain most, but not all, of the rights they would have enjoyed under the withdrawal agreement. They wouldn’t benefit from entering during the transition period or have access to the CJEU. Post-Brexit Day, deporting EU27 citizens would become easier, and their family reunification rights would be limited. Additionally, the absence of a monitoring body could weaken the enforcement of their rights. Both EU and UK citizens might encounter difficulties with the cumulation of social security rights.

UK citizens in the EU face uncertainty due to the Commission’s lack of clear commitment, leaving their fate largely dependent on individual member states’ laws. This raises concerns that their situation could be significantly less favorable than under the withdrawal agreement, despite its limitations (particularly its failure to secure their continued free movement within the EU27).

Offering unilateral guarantees two and a half years ago could have saved many EU27 citizens significant anxiety. Similarly, the Commission could have proposed unilateral guarantees for UK citizens months ago. Both UK and EU27 citizens who exercised their freedom of movement are caught between the UK government’s perceived disregard and the Commission’s perceived inaction.

Alternative solutions exist, such as a treaty safeguarding rights for both sides or a unilateral measure from the EU as a whole protecting UK citizens’ acquired rights. To achieve either, the European Parliament needs to push the Commission to prioritize UK citizens’ acquired rights and pressure them to take concrete action. If that requires drastic measures, so be it.

Barnard & Peers: chapter 13, chapter 27

Photo credit: Business Insider

*Supported by an ESRC Priority Brexit Grant on ‘Brexit and UK and EU Immigration Policy’