Professor Steve Peers*

Introduction

A crucial Brexit issue with potentially significant consequences for many is the fate of UK citizens in the EU and EU citizens in the UK post-Brexit. Addressed early in Brexit negotiations, both sides have established positions: the EU through a Council decision outlining the mandate for Commission negotiators on May 22, and the UK through a government proposal on June 26. Despite claims to the contrary, the UK’s proposal didn’t precede the EU’s stance. Similarly, assertions that only the EU Commission, and not other EU institutions, demands the ECJ’s role in the agreement are inaccurate.

Beyond citizens’ rights, the EU’s position encompasses the financial implications of Brexit and transitional elements like pending court cases on Brexit Day, topics not yet covered in published UK proposals. This analysis, however, will concentrate solely on citizens’ rights. For clarity, the relevant sections of the EU’s position are included in the Annex.

A fundamental decision revolves around whether the post-Brexit status of UK and EU citizens should hinge on ‘acquired rights’ (preserving their status under EU law) or an approach mirroring treatment of nationals. While the Leave campaign promised acquired rights to both EU citizens in the UK and UK citizens in the EU, the EU leans towards the former approach, while the UK advocates for the latter.

The EU position

Essentially, the EU adopts the ‘acquired rights’ approach, broadly interpreting it to encompass future rights alongside those currently in progress, notably permanent residence status achievable under EU free movement law after five continuous years of legal residency. This stance explicitly covers both EU citizens in the UK and UK citizens in the EU, including those with prior residency on either side. Protection, based on equal treatment comparable to nationals, would be ensured for individuals’ lifetimes through streamlined administrative processes.

The EU’s position further defines the personal scope of the agreement: individuals covered by the EU citizens’ Directive (workers, self-employed, economically inactive individuals, subject to limitations for ‘benefit tourists’), and family members arriving before or after Brexit Day. It aligns with the scope of the EU social security Regulation addressing social security coordination in cross-border contexts, including frontier workers (those working in the UK but residing in France, for instance). 

The material scope (rights protected) encompasses residence rights derived from Treaties or the citizens’ Directive, procedural rules for documenting these rights, social security coordination rules (export of benefits, accumulation of social security contributions from different countries), supplementary rights from the Regulation on free movement of workers (including education access for workers’ children), access to self-employment, and recognition of qualifications obtained before or being recognized on Brexit Day.

For enforcement, the EU advocates for the ECJ’s authority, applying pre-Brexit Court case law to the withdrawal agreement’s rules. This includes all existing Court jurisdictions, notably references from national courts to the ECJ and Commission challenges against the UK.

The UK position

The UK’s paper starts by affirming its commitment to maintaining the Common Travel Area arrangements with Ireland (and the Crown Dependencies). This includes preserving the rights of British and Irish citizens residing in each other’s countries, stemming from the Ireland Act 1949. Consequently, Irish citizens residing in the UK won’t require settled status to safeguard their entitlements. However, the extent of immigration status protection provided by the Ireland Act for Irish citizens in the UK has been debated.

The UK proposes treating EU citizens in the UK according to specified principles, anticipating reciprocal treatment for UK nationals in EU member states. The legal form remains unclear - a unilateral offer contingent on EU reciprocation, or a negotiable proposal for the withdrawal treaty. The document inconsistently references “negotiations” and “international law.”

The UK pledges adherence to EU free movement law until Brexit Day. Post-Brexit, it plans to establish new UK law rights for eligible EU citizens residing in the UK before Brexit, offering legal guarantees and enforceable rights within the UK legal system. These rights would be complemented by commitments within the Withdrawal Agreement, holding international law status. The ECJ’s jurisdiction in the UK is explicitly rejected. The paper emphasizes equal treatment for all EU citizens, though this conflicts with the distinct arrangement for Irish citizens. 

While ‘qualifying EU citizens will have to apply for their residence status’, the ‘administrative procedures’ will be streamlined and modernized. This constitutes a national process, distinct from the current system certifying rights under EU law. The UK aims to adapt eligibility criteria, for instance, removing the requirement for economically inactive EU citizens to prove prior “comprehensive sickness insurance” for continuous residency. The phrase “for example” suggests potential alterations to criteria for EU citizens obtaining UK residency status.

A sufficient timeframe post-Brexit will be provided for eligible EU citizens to apply for the new residence status. They are guaranteed “settled status” in UK law (indefinite leave to remain under the Immigration Act 1971), granting them the freedom to reside, work, access public funds and services, and apply for British citizenship.

To attain this status, EU citizens must have resided in the UK before a yet-to-be-defined date between March 29, 2017 (Article 50 letter) and March 29, 2019 (Brexit Day). They must also have accumulated five years of continuous UK residence by the application date, remaining resident throughout. Since criteria are nationally determined, the calculation of this period might differ. EU citizens residing in the UK before the specified date but lacking five years of continuous residence on Brexit Day can apply for temporary status to remain in the UK, subsequently applying for settled status upon reaching the five-year threshold. 

Conversely, EU citizens arriving after the unspecified date can remain temporarily and might qualify for permanent settlement depending on their circumstances. However, guaranteed settled status is not assured, marking a departure from the EU’s proposition.

Family dependents joining qualifying EU citizens in the UK before Brexit can apply for settled status after five years (even if this period extends beyond Brexit), regardless of the specified date. The definition of “family members” remains unclear. However, family members arriving post-Brexit will face the same immigration rules as families of UK citizens, or the post-Brexit immigration framework for EU citizens arriving after the specified date. This suggests openness to negotiating specific rules with the EU.

Exclusions apply to “serious or persistent criminals and those considered a threat to the UK.” This might deviate from EU legislation and ECJ case law regarding the exclusion of criminals and security threats. Regarding “benefits, pensions, healthcare, economic and other rights,” the UK intends, with the expectation of EU reciprocation, that: settled EU citizens retain access to UK benefits comparable to UK nationals under domestic law; EU citizens arriving before the specified date maintain access to existing benefits (broadly equal access for workers/self-employed, limited access for non-workers) while progressing towards settled status; and, upon receiving settled status, they access benefits equivalent to comparable UK residents. Additionally, the export of benefits to the EU will be preserved for those availing of them on the specified date, including child benefit, subject to continuous entitlement. Notably, the right to export benefits won’t be extended to those arriving after the specified date.

The UK will continue exporting and adjusting the UK State Pension within the EU, primarily benefiting UK citizens retiring abroad. However, some EU citizens with UK employment history may also be affected. Other social security coordination mechanisms will persist, including the aggregation of national insurance contributions for UK benefits and state pensions, even those granted post-Brexit, and healthcare arrangements stipulated in UK and EU law. Specifically, the UK aims to safeguard the ability of individuals eligible for a UK European Health Insurance Card (EHIC) before the specified date to access free or reduced-cost necessary healthcare during temporary stays in the EU. While negotiations are planned for a continued arrangement similar to the EHIC scheme, discussions regarding other social security aspects are absent, despite potential technical and administrative challenges in aggregating contributions and disbursing benefits without a formal cooperation framework. It remains unclear whether the UK intends to uphold any relevant EU legislation. If not, negotiating and implementing these rules will be more complex.

Regarding education, the UK guarantees that eligible EU citizens arriving before the specified date retain access to Higher Education (HE) and Further Education (FE) student loans, “home fee” status (in line with individuals with settled status in the UK), and existing maintenance support. Equal treatment in tuition fees will apply to EU students enrolled in the 2017/18 and 2018/19 academic years for their course duration, coupled with the right to remain in the UK for course completion. Notably, there’s no mention of the right to stay for other purposes post-Brexit. The UK aims to ensure the continued recognition of professional qualifications obtained in the EU27 before the UK’s withdrawal, reflecting the EU’s position but with less definitive language.

EU citizens will eventually require “settled status” documentation. Although not mandatory presently, an application process will be established before Brexit for those seeking early status confirmation. Individuals with existing permanent residence documentation must reapply, though a streamlined process is promised. Fees will be set at a “reasonable level.” A grace period, potentially two years, will allow EU citizens residing under the old system to transition to the new one, with the caveat that failing to apply under the new system will lead to the loss of permission to stay.

Finally, the UK will engage with Iceland, Liechtenstein, Norway, and Switzerland, all subject to free movement rules, to establish similar reciprocal arrangements.

For UK citizens in the EU, the UK advocates for their ability to secure a right equivalent to settled status in their country of residence, along with continued access to benefits and services across member states comparable to current provisions. The UK also aims to ensure their continued right to establishment and cross-border service provision within the EU.

Comments

The EU’s position, grounded in the continuation of existing law, presents fewer ambiguities, except those inherent in the laws themselves (for example, the precise status of same-sex marriages currently before the ECJ). Nevertheless, some points remain unclear. Firstly, is the reference to individuals with prior residency in the EU or UK independent or simply a reflection of the detailed rules within the cited EU legislation? For instance, a UK pensioner in Spain might be receiving a UK pension based on past contributions.

Secondly, the reference to Treaty-based rights seemingly covers non-EU parents of UK children in the UK (the Ruiz Zambrano cases). Thirdly, would UK citizens residing in the EU on Brexit Day retain free movement rights between Member States? Would a UK citizen in France on that day retain complete freedom of movement to relocate to Germany later? Finally, how would each side differentiate between UK and EU citizens possessing acquired rights on Brexit Day and those without such rights, primarily those relocating afterward?

In contrast, the UK’s position is inherently vaguer, as it avoids directly referencing EU law. Consequently, key aspects like the criteria for “settled” status, potential exclusions, and family member definitions remain ambiguous. The UK position frequently employs noncommittal language such as “seek to ensure” or “akin.”

The UK’s position, to the extent its content is discernible, demonstrably offers less favorable terms for both EU citizens in the UK and UK citizens in the EU. Firstly, the EU’s position sets the cut-off date at Brexit Day, while the UK might implement an earlier date. The UK suggests that EU citizens in the UK might not receive equal treatment even with permanent residence status by the cut-off date, as they would need to transition to settled status, a process absent in the EU’s proposal. Although the UK will waive the Comprehensive Sickness Insurance requirement, it’s argued that the current UK law on this matter already contravenes EU law.

EU citizens without settled status by the cut-off date or those arriving between the cut-off date and Brexit Day would face disadvantages compared to the EU proposal, losing the protections of EU free movement law for acquiring EU permanent residence status. All categories of EU citizens would experience diminished family reunion rights post-Brexit.

For UK citizens in the EU, the UK’s position advocating for a right equivalent to settled status in their residing EU country wouldn’t automatically guarantee rights equivalent to those under EU free movement law’s permanent residence status. Moreover, those without such status by Brexit Day might face obstacles in obtaining it, unlike EU citizens, as free movement law would no longer apply. The use of “akin” concerning equal treatment introduces further ambiguity. While the UK aims to maintain the right of establishment and freedom to provide services, broader free movement rights, arguably implied by the EU’s position, are absent.

The two sides clearly disagree on the ECJ’s role: the EU proposes maintaining its current authority, while the UK seeks to remove its jurisdiction within the UK. This would leave the ECJ with jurisdiction over UK citizens in the EU and a potentially limited role in dispute resolution. Interestingly, the UK implicitly signals a willingness to consider alternative dispute resolution mechanisms: a new court, arbitration, or the existing EFTA Court, which applies EU internal market and related law in Norway, Iceland, and Liechtenstein, adhering to ECJ case law predating the agreement and considering subsequent case law. This aligns with the EU’s position and closely resembles the UK’s plans for the Great Repeal Bill.

Overall, the UK’s position is significantly vaguer and offers considerably less to both EU citizens in the UK and UK citizens in the EU compared to the EU’s position. The disparity is even greater for those lacking EU permanent residence status. Additionally, an enforcement gap exists concerning the ECJ’s role, although precedents exist (EFTA Court, agreements with Switzerland and Turkey) where the EU hasn’t mandated ECJ enforcement of its citizens’ rights outside the EU. A compromise likely hinges on: a) the EU accepting alternative enforcement mechanisms besides the ECJ; b) a Brexit Day cut-off date; and c) both sides agreeing on an acquired rights-based approach with exceptions (family members admitted post-Brexit, stricter rules for individuals 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

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.