Sarah McCloskey and Tamara Hervey, Sheffield Law School
Following a string of significant political shifts, many can relate to the feelings of unease and worry stemming from the resulting instability. Currently, those hit hardest are individuals who have exercised their right to free movement without fear of it being revoked. This is the essence of Brexit: a source of discontent for some, a daily news item for others, but for EU citizens in the UK and UK citizens residing in other Member States, it holds the power to drastically alter their lives. Without dismissing the importance of the former group, our focus here is on the latter.
What are the implications of the UK government’s suggestions for UK citizens in the remaining EU countries? How will this affect their established rights related to residency, healthcare under EU agreements, pensions, and payments? As noted, the UK’s proposal centers on EU citizens within the UK. However, in any negotiation, one side’s proposition impacts the other. By analyzing the UK’s stance, we can infer potential consequences for UK citizens in the remaining EU countries.
UK’s Stance in Negotiations
Despite hopes for a generous approach from the Prime Minister, the UK government has maintained its stance: a unilateral offer to EU citizens residing in the UK on ‘Brexit Day’ would weaken its bargaining power. Therefore, their offer hinges on reciprocal treatment from the EU. While the negotiation outcome is unknown, we can evaluate the UK’s position as a “fair and serious” offer (as the UK government claims) by comparing it to the EU’s initial counter-proposal.
The UK’s position dictates that upon exiting the EU, EU citizens in the UK must apply for new residency permits within two years. Despite promises of a “simplified” process with “reasonable” fees, the proposal has been criticized for subjecting even those with permanent residency to this new system. Applying this reciprocally, UK citizens in the remaining EU would likely face similar treatment as “third country nationals” after Brexit. They would need to apply for new residency under the immigration laws of their respective EU Member States. If reciprocity holds, those arriving before a yet-to-be-determined date may receive temporary status allowing them to work towards the necessary 5-year residency. However, those arriving later would lack such protection and be subject to standard immigration procedures.
Furthermore, any disputes would be settled in the courts of the respective EU Member State, without recourse to a supranational authority (like the CJEU). This would make enforcing residency and other rights considerably more challenging.
The UK’s proposal grants successful EU applicants “settled status” under UK law, specifically the Immigration Act of 1971. This status is contingent on meeting certain requirements, including residing in the UK before a yet-to-be-determined date (falling between March 29, 2017, and Brexit Day) and having accumulated 5 years of uninterrupted residency. Notably, the UK government hasn’t defined “continuous residence.” Given the Prime Minister’s skepticism towards the CJEU, assuming it mirrors the EU law definition is not guaranteed.
Reciprocally applied, this means UK citizens (similar to EU citizens residing in the UK) might be restricted from exercising their current freedom of movement rights, for instance, to visit family or for work trips, in case these visits disrupt their continuous residency beyond what’s permitted by the applicable law. Essentially, this renders the UK’s current protection of free movement for EU citizens in the UK irrelevant, as any such movement could jeopardize their post-Brexit application. As with many aspects, the details hold significance, leaving the actual ease of navigating these new rights uncertain.
Regarding pensions, child benefits, education, and healthcare, the UK’s proposal offers more specific information. The UK explicitly states that it will “continue to export and adjust the UK State Pension within the EU.” This is significant considering that 21% of UK citizens in the remaining EU countries are over 65. Similarly, the current stance on child benefit remains: individuals residing in an EU country before Brexit can continue to receive any applicable child benefits in their country of residence, particularly crucial for divorced or separated families. Concerning education, UK students can stay in their respective EU country until course completion (not beyond), and those with residency have the same rights to tuition fees and potential grants as citizens of that country.
Healthcare, however, presents complexities. The UK proposes a new system “similar to the EHIC scheme” (European Health Insurance Card, currently allowing those covered by their home systems, like the NHS, access to medical treatment in other EU countries). While non-EU states participate in the EHIC, integrating the UK post-Brexit would likely necessitate including free movement rights. Otherwise, managing the technical and administrative aspects outside the existing social security coordination framework might be impossible. The EU’s social security coordination is rule-based, not politically determined. A reciprocal deal (to be part of this system) might be achievable. However, accessing healthcare outside this system (without free movement, without potential CJEU oversight) seems improbable. If so, UK citizens in the EU would have to depend on national laws for healthcare entitlements.
The UK’s stance doesn’t explicitly address other practicalities for UK citizens in the remaining EU countries (and vice versa): equal access to housing, tax benefits, rights to move and reside in other EU countries, and equal rights to union membership. This falls short of offering reassurance in the face of uncertainty.
Without such specifics, the only guidance remains: “After leaving the EU, the UK will no longer be subject to EU law. Free movement rights will cease and therefore cannot be carried forward, as an EU legal right, into the post-exit UK legal system.”
If this is the default, with reciprocity as the basis for future entitlements, UK citizens in the remaining EU countries would face potentially reduced rights similar to their EU counterparts in the UK.
Applicable EU Law
However, analyzing solely based on reciprocity ignores the existing EU regulations regarding non-EU citizens residing in its Member States. The UK’s rejection of an ‘acquired rights’ approach or any tailored proposal indicates an intent to align the status of EU citizens with UK immigration law, with all its implications. This approach isn’t available to most EU countries (Ireland and Denmark opted out of this law), bound by EU law on non-EU migrants, specifically the EU’s Long-Term Residence (LTR) Directive. This directive impacts UK citizens in the remaining EU countries by offering legal protection to some non-EU citizens. This directive is enforceable in national courts and under the jurisdiction of the CJEU. (There’s also EU legislation on non-EU citizens not yet eligible for LTR status).
Articles 7 and 8 of the LTR Directive govern long-term resident status acquisition and residence permit granting. The directive ensures a certain standard for the process, sets common criteria, mandates granting LTR status if conditions are met, and guarantees specific rights upon successful application. For instance, Article 7(2) mandates processing applications within 6 months, and Article 10 requires providing reasons for decisions.
Fulfilling certain conditions (detailed later) grants non-EU citizens treatment equal to citizens in their host country under the directive. This includes: access to employment and self-employment, qualification recognition, tax benefits, and pensions. The UK’s position, lacking these offers reciprocally, seems to disregard this EU law aspect.
The LTR Directive (and potentially parallel national laws on long-term residency) provides extensive entitlements. Assuming its applicability if the UK’s proposals succeed or if the UK leaves without a withdrawal agreement, it raises a question: UK citizens’ position in the remaining EU countries would be undoubtedly better under the EU’s proposal (especially for those without long-term residency yet). But how much worse off would they be under the UK’s proposals compared to the EU’s offer? (UK citizens in Ireland might experience a different situation due to the common travel area; those in Denmark would rely on Danish law.)
Comparing the EU Proposal and EU Law: Long-Term Residence Directive
The EU aims to maintain the current status for EU citizens in the UK and UK citizens in the remaining EU countries, but without the EU citizenship framework tied to EU membership. In contrast, the LTR Directive has been described as creating a “subsidiary form of EU citizenship.”
The LTR Directive provides non-EU citizens with many rights equal to those of citizens in their host countries. It limits direct control by Member States by stating that if conditions are met and no Article 6 exceptions apply (public policy or security), long-term resident status must be granted. Standard immigration law lacks such external oversight. However, LTR status differs significantly from EU citizenship status and the EU proposal. Material rights are fewer, the scope is narrower, and the process is more challenging.
Equal treatment in social assistance and protection can be restricted to core benefits, as defined by the ECJ in the Kamberaj case. Restrictions on employment or self-employment access, where reserved for citizens of that nation, the EU, or EEA, are permitted. Also, unlike EU citizens, achieving LTR status doesn’t automatically grant free movement within the EU. Article 14 outlines the conditions for residing in another Member State for over three months. Family reunification presents another difference: non-EU citizens face the restrictive Directive 2003/86/EC, while the EU proposal ensures the Withdrawal Agreement applies to family members “regardless of their nationality, as covered by Directive 2004/38,” encompassing current and future family.
Regarding scope, the EU’s proposal is clear: it includes all “UK nationals residing or having resided in the remaining EU countries at the Withdrawal Agreement’s enforcement,” those working or having worked there while living in the UK or another EU country at that time, those covered by Regulation 883/2004, and their families. Conversely, Article 3(2) of the LTR Directive lists exceptions, like non-EU citizens residing for studies or training, seasonal workers, and cross-border service providers.
Further, this limited status comes with more conditions. Beyond the shared requirement of 5 years of continuous legal residency, the LTR Directive mandates that non-EU citizens demonstrate: sufficient stable and regular income to support themselves and their families without needing social assistance, adequate health insurance, and sometimes, compliance with integration requirements set by national law. Consequently, if the UK’s proposal is adopted, UK citizens in the remaining EU countries would face a tougher application process with likely lower success rates compared to the EU’s more straightforward proposal.
Undeniably, the EU’s proposal is more beneficial than the UK’s. This isn’t surprising. While the EU values non-EU citizens’ contributions to their host countries, a proposal prioritizing the interests of 3.15 million EU citizens in the UK will naturally be more favorable than the remaining LTR Directive’s provisions. Furthermore, for negotiations, offering identical conditions for UK citizens in the remaining EU countries was necessary.
However, even if the UK’s proposal prevails, its citizens still receive more protection than EU citizens in the UK. The LTR Directive, particularly Article 7(3), acts as a safety net for the EU-25. No equivalent exists for EU citizens in the UK, who would be subject to standard immigration law post-Brexit if the UK’s position stands.
Lack of Reciprocity
A gap exists between the EU’s negotiating stance and the LTR Directive. However, it’s somewhat measurable. In contrast, the discrepancy between EU citizens’ current situation in the UK and the UK’s post-Brexit proposal remains unknown. The UK’s silence on many existing rights raises concerns. While the LTR Directive’s relative certainty offers some comfort to UK citizens, those ineligible for this status will solely rely on national immigration law, facing similar uncertainty as EU citizens in the UK.
The UK’s weak response to the EU’s proposal might seem surprising. However, the difference in numbers might explain this: compared to 3.15 million EU citizens in the UK, there are approximately 900,000 UK citizens in the remaining EU countries. Most don’t vote in UK general elections, potentially making them the “sacrificial lambs” in these negotiations. However, this overlooks the 60% of UK citizens desiring to retain their EU citizenship (this figure increases to 80% among the emerging political force of 18-24 year olds). If these polls are accurate, the UK government has a greater stake in a favorable outcome than their proposals suggest. To avoid further alienating voters, the UK government should reassess the EU’s position, considering applicable EU law, and inject realism into its negotiating approach.
Barnard & Peers: chapter 27
Photo credit: Irish Times