The second round of formal Brexit negotiations will start on Monday 17 July. In the meantime, delegations are discussing proposals to protect the rights of EU nationals living in the UK and Brits living in Europe.

The EU wants to guarantee most of their existing rights for life. The British government issued a separate offer that reduces the rights currently enjoyed by EU nationals in the country. Based on the principle of reciprocity, this means that rights of Britons in the EU will likely diminish as well.

While everything is still up for negotiation, on the basis of what is currently offered to EU nationals, Britons in Europe will be treated as “third country nationals” after Brexit.

Sarah McCloskey and Tamara Hervey of Sheffield Law School explain on the EU Law Analysis blog: “They would need to apply for a new residence status under the immigration law of the EU Member State in which they reside. And again, if reciprocity applies, while those who arrive before the yet-to-be-specified [cut-off] date will be granted a temporary status that allows them the opportunity to accrue the vital 5 years of residence, those who arrive at any time thereafter will have no such protection or special treatment. Instead, they would be subject to ordinary immigration law.”

British in Europe worry about the ability to continue moving across EU countries after Brexit. This aspect appears to be covered by the EU proposal but is not in the UK’s, as the British government seeks to end free movement.

“There is very little in the UK offer about the concerns of working people. This is key, as free movement and EU citizenship rights aren’t simply about the right to remain. This is about the full bundle of indivisible rights necessary to allow citizens to live and work in another country,” commented Jane Golding, chair of British in Europe, the largest coalition of UK citizens groups in Europe. “In fact, this is also the case for non-economically active people. The right to remain for them does not mean much without e.g., access to healthcare.”

Healthcare, as well as pensions and education, are other areas where the UK position provides little details. Except for a promise to export and uprate pensions, “the aggregation of contributions proposed in the UK paper seems only to apply to contributions accrued pre-Brexit,” says a legal analysis by British in Europe and the3million, a groups representing EU citizens in UK.

Regarding healthcare, the proposal is vague in stating that the UK “will seek to protect” the current arrangements under EU and UK law.

The same lack of depth regards the situation of students: “In general, there is very little consideration of the position of young UK citizens resident in EU countries now embarking on their studies in the UK or EU 27 countries. There also seems to be no right to stay on to seek work after degree,” adds the analysis.

Further, the UK proposals reduces the rights of family reunification for EU citizens (e.g. when bringing to the UK non-EU spouses or elderly parents). It is not clear, but it is likely, that the same rules would apply to British citizens returning from the EU post-Brexit, e.g. with EU spouses. In that case, families will face the prospect of not being able to return, for example, to take care of elderly parents.

In addition, the EU offers protection of rights for life, while the UK says EU nationals will lose their rights in the country after an absence of two years.

The UK proposal also states that the European Court of Justice will not have jurisdiction in the country after Brexit. This would mean that the way rights are enforced will potentially be supervised by different courts for EU nationals in the UK and Brits in the EU.

Finally, there is no mention of continuing voting rights at local and European level, for both EU citizens in Britain and for UK citizens in the EU.

Given the lack of details and the fact that the UK offer is founded in national law, it is difficult to understand “what the UK is seeking to negotiate” for UK citizens living in Europe, conclude the organisations.

What worries British in Europe the most? “In the first place, the lack of detailed proposals in the UK offer about how the UK will seek to protect the rights of UK citizens in the EU. This is the most noticeable omission,” says Jane Golding. “Second, the possibility of a no deal is a key concern, and for this reason we are seeking the ring fencing of the agreement on citizens’ rights so that it is not to be re-opened no matter what happens in the remainder of the negotiations, and that, most significantly, it will come into force even if other aspects of the negotiations fail.”

British in Europe believe the UK should accept the offer to UK citizens made in the EU’s negotiating directives, subject to the clarification of a couple of points on the right of establishment and the status of students. “The UK should then guarantee all of the same rights to EU citizens in the UK,” Golding continues.

Once the country leaves the EU, UK nationals will lose EU citizenship. Many British living in the rest of Europe have been away from the country for more than 15 years, so they have lost the right to vote in UK general elections. It has been argued that this might explain the limited proposal of the government on their future rights.

Claudia Delpero all rights reserved.
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