While talks continued behind the scenes over the summer, formal Brexit negotiations will resume on August 29th. Citizens’ rights – the legal status of EU nationals living in the UK and of British in the EU after Brexit – will be back on the table after a first round of meetings in July. This is one of the areas where the EU requires “sufficient progress” before opening talks with the UK on a future trade deal, something Britain is pushing for. So how far are we from an agreement?

On May 29th the European Commission made proposals to maintain the current status almost unchanged for the people affected. On June 26th the British government made its own offer, proposing to give “settled status” to EU nationals. This, however, partly reduces existing rights, especially when it comes to bringing family members to the UK. There are almost 50 different legal aspects under discussion only in this chapter of the Brexit negotiations. After talks in July, a document showed there is agreement on about half of them. Here is a summary of where things stand.

Areas of agreement

It is understood that EU nationals in the UK and British citizens in the rest of the EU, as well as their family members, will be able to continue living where they reside. Current rules, from equal treatment to children education – or even expulsions – will be maintained.

The EU and the UK agree that these obligations will be binding under international law (the UK withdrawal agreement) and will be interpreted according to EU law concepts in place at the time of the UK’s withdrawal.

The EU and the UK also agree to maintain the existing rule that permanent residence is lost after two years of absence from the country. The3million and British in Europe, two groups defending citizens’ rights, are protesting against the decision, as people may have to take work missions or lengthy periods abroad to look after elderly parents. They argue that this rule makes sense in a context of free movement, where residence rights can be rebuilt at any time. But with a stricter immigration regime, they mean someone will no longer be able to return where home was.

Areas of disagreement

It was already known that the EU and the UK disagree on how to deal with family reunifications and future family members, who accompany or join EU citizens in the UK after Brexit. The EU wants all current rules to continue, including for children not born yet and for EU nationals who used to live in the UK. EU citizens would also be able to bring to the country spouses and family members, who benefit from derivative residence rights under EU laws. The UK, instead, wants equal treatment with British citizens, who are subject to stricter regulations, e.g. with regard to non-EU spouses. On this issue, there hasn’t been any visible progress.

An unexpected element of contention also emerged on British citizens living in the EU. Their residence rights would be limited to the country where they live, instead of being recognised across the EU27. According to the EU, this is because free movement for British nationals will end with Brexit. Such decision would have significant consequences, particularly for people living and working in border areas or moving regularly around Europe for professional reasons. The UK Brexit Secretary, David Davis, wrote in a letter to the House of Commons Brexit committee: “We have questioned whether this is consistent with the principle of reciprocity, and also with the Commission’s desire to protect rights currently enjoyed under EU law.”

In addition, by losing EU citizenship, British citizens in Europe would lose the right to vote or stand as candidates in local elections. The UK did not specify its intentions in this regard in the offer to EU nationals, but David Davis confirmed in the letter to the committee that the British government is prepared to protect these rights for EU citizens in the UK. The discussion continues.

As regards the permanent residence procedure in the UK, the EU insists that – based on current directives – the documents requested should be only declaratory because the right to stay is automatically acquired after 5 years living lawfully in the country. The UK, instead, wants the proof of the right to reside. The British government plans to abolish the proof of effective work (minimum income) and the prerequisite of comprehensive sickness insurance for the economically inactive, two requirements that have hindered many people from obtaining the permanent residence card in the past year. Yet, it plans to perform a criminal record check on EU nationals and wants those who already have a permanent residence card to re-apply for settled status. The EU disagrees about these procedures, as they complicate unnecessarily the process and “criminality checks cannot be conducted systematically.”

Posted workers, who are sent by employers to carry out a service in another EU country on a temporary basis, are currently excluded from the scope of the agreement because the EU considers them in relation to cross-border services. The UK aims for their inclusion.

Finally, another area of disagreement regards the enforcement of these rights and the settlement of disputes. According to the EU, the provisions should be directly effective, so that individuals could rely on the withdrawal agreement in front of domestic courts. For the UK, rights agreed in the Brexit deal should be translated into national laws, so that international provisions won’t have direct effect in UK courts.

The UK says the European Commission should be in charge of monitoring compliance only in the EU27, while an independent monitoring arrangement would be established in the UK. Also, the UK has so far refused to recognise the jurisdiction of the European Court of Justice in the oversight of the agreement. However, in a recent position paper published the British government seems to have softened this position.

The mechanism for the resolution of disputes is discussed in another working group of the EU Brexit task force, which looks at the governance of the entire deal. Based on current proposals, the enforcement of citizens’ rights should be separate from other provisions.

Areas to clarify

In terms of areas that need clarification, the cut-off date after which a new regime will apply is still to be decided. The EU says it should be the date of official departure from the EU. The UK says it should be between 29 March 2017 (date of the notification) and the effective exit.

Also further discussion is required on the aggregation of social security contributions for the period after Brexit. This is a key concern for the3million and British in Europe, as it is currently possible to cumulate pension contributions in different EU countries, without having to meet minimum periods of payments in each state.

Next week talks will continue on these issues, as well as the recognition of professional qualifications. There will be likely trade-offs to find a balance in reciprocal arrangements that will lead to the final deal.

British in Europe and the3million however worry about the lack of clauses that would protect an agreement on citizens’ rights if talks collapse on other topics.

Claudia Delpero © all rights reserved.
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