After months of negotiations, in the early hours of Friday 8 December the EU and the UK reached an agreement in principle on the terms of the UK exit from the European Union. The deal defines the future status of EU nationals currently living in the UK and British residents in the rest of the EU. Not all of their existing rights have been maintained.

But what was decided on this issue, as well as on the preservation of the peace agreement in Northern Ireland and the settlement of the accounts, is considered “sufficient” to move to phase two of Brexit talks, the negotiation of a EU-UK trade agreement. While other elements related to citizens’ rights will come back to the table then, this is what has been agreed so far.

People covered by the agreement

The Brexit agreement will cover EU nationals legally resident in the UK and British living in the rest of the EU, together with their families, at the Brexit date. Children born or adopted after the UK withdrawal from the EU will also be covered.

Family members of right holders (current spouses, unmarried partners, parents, grandparents, children and grandchildren) who do not yet live in the same state will be able to join their relatives in the future. This is partly a compromise from the UK, as initially the British government did not accept future family reunifications. But the deal still excludes future partners or spouses. In its communication to EU member states, however, the European Commission said that “this important matter should be dealt with in the second phase of the negotiations and will inevitably be linked to the level of ambition of the future partnership between the EU and the United Kingdom.”

The date for the start of the new regime should be that of the UK’s withdrawal, 29 March 2019. But the EU Commission does not exclude shifting it in consideration of a transitional period.

Which rights

People covered by the agreement will continue benefiting of current rights in terms of social security coordination (also applicable to those who resided in the UK or in the EU27 in the past), aggregation of pensions, healthcare (including the European Health Insurance Card), and recognition of qualifications acquired before the Brexit date. Any discrimination on grounds of nationality will also be prohibited. These rights will be protected for the lifetime of affected people.

How to get the “special status”

The EU Commission defines the regime for EU nationals in the UK and UK residents in the EU at the time of Brexit as a “special status”, without making any difference between the UK and the EU27. The criteria to obtain this status will be the same of current EU directives (5 years continuous legal residence in the host state).

In the UK, the “special status” corresponds to the “settled status” proposed by the British government in June 2016 and modified by the Brexit agreement. In theory, EU27 countries could adopt a similar arrangement for British nationals on their territory. But according to Brussels sources, none of the EU countries has shown an interest to pursue this route. Based on the deal, states can continue to apply the present residence system.

The UK has obtained that EU nationals will apply to obtain the “settled status”, as opposed to the declaratory nature of EU’s permanent residence. The agreement specifies, however, that where an application is required, an adequate time of at least two years must be allowed to submit it.

The agreement says that any unnecessary administrative burdens are to be avoided. Countries “cannot require anything more than is strictly necessary and proportionate to determine whether the criteria have been met.” Application forms should be “short, simple and user friendly” and the host state will have to “work with the applicants to help them prove their eligibility and to avoid any errors or omissions that may impact on the application decision.”

Residence documents will be issued for free or for a charge not exceeding that of similar documents for nationals. EU citizens in the UK who already hold a valid permanent residence card will be able to convert it to settled status free of charge. The administrative procedure will be detailed in the withdrawal agreement to ensure it will have direct effect.

As part of the application process, the UK obtained the possibility to carry out criminality and security checks on all applicants. This is not required, but also not forbidden, by current EU laws. Any restrictions on grounds of public policy or security related to the conduct of applicants before the cut off date will be in accordance with EU directives, after the cut off date national law will apply. This is expected to make the removal of people who committed crimes easier for the UK.

People will be able to leave the host county for up to five years without losing their residence status (more than the two years allowed by current EU law). But states are not obliged to terminate this “special status” if the five years are exceeded.

Enforcement

The agreement will be interpreted in line with the case law of the Court of Justice of the European Union (CJEU). It will contain an “explicit provision that citizens will be able to rely directly on the rights enshrined therein and that inconsistent or incompatible rules will be disapplied” (direct effect).

The UK will adopt a bill that will fully incorporate the citizens’ rights part of the agreement into UK law. This “will prevail over inconsistent or incompatible legislation, unless parliament expressly repeals this act in future” (the UK parliament cannot bind to legislation future ones).

UK courts will have “due regard” to relevant decisions of the EU Court and, where necessary, they will be able to ask the CJEU questions of interpretation. This mechanism will be available for 8 years from the Brexit date.

The EU Commission will monitor the application of the agreement in the EU27. An independent national authority will fulfill this role in the UK. This body should have the power not only to receive complaints by EU citizens living in the UK, but also initiate legal actions before UK courts on their behalf. The UK government and the EU Commission will also be able to intervene in relevant cases before the CJEU and UK courts respectively.

In this respect, Professor Catherine Barnard, UK in a Changing Europe senior fellow, commented: “The UK’s red line over the Court of Justice (CJEU) has turned pink. Most strikingly, the UK Government will have the right to intervene in cases before the CJEU on citizens’ rights matters and, for the first time, the European Commission will have the right to intervene in citizens’ rights cases before UK courts.”

Irish citizens

As part of the preservation of the peace agreement in Northern Ireland, the right of people of the region to choose to be Irish or British or both will be maintained. Northern Irish people who are Irish citizens will continue to enjoy the rights of EU citizens.

The UK and Ireland may also continue making arrangements on free movement between their territories (Common Travel Area).

What is not included

A table outlining areas where consensus was reached shows that the UK raised other matters that the EU considered outside the scope of the first negotiations phase. These include free movement rights in the EU27 for UK nationals living in the EU, rights of posted workers, future professional qualifications and healthcare arrangements, recognition of licences and certificates that are currently recognised EU-wide and cross-border provision of services. Discussion on these will likely restart during the negotiation of a EU-UK trade agreement.

Also, the Brexit deal does not mention the right to vote in local elections, currently granted by EU laws. The UK was prepared to maintain this right for EU nationals, but for the EU this is a matter to be decided individually by each EU country on the basis of domestic regulations, as British nationals are effectively losing EU citizenship.

Good or bad deal?

Both the UK and the EU have admitted there have been compromises and certainly the promises of the UK referendum that “nothing will change” and “all rights will be guaranteed” have not been maintained.

Jane Golding, chair of the group British in Europe said: “This is a double disaster for British people living in Europe. At the moment, not only is it unclear whether we keep our automatic residency rights, but it looks like we can also kiss goodbye to continuing free movement beyond any agreed transition period, which so many of us who work across Europe rely on to support our families”.

On its part, the European Commission says it has fulfilled the mandate of the EU Council and the priorities set by the European parliament. Sources in Brussels say a no-deal would have had devastating effects and the fact that the agreement is based on EU law concepts is considered an achievement given that the UK wanted to follow UK immigration law.

Professor Jonathan Portes, UK in Changing Europe senior fellow said: “Although there are still many details to be resolved, this deal will go a considerable way towards resolving the uncertainty which has been hanging over those affected for the last year and a half.”

Concerns remain, however, for EU nationals in the UK. “The agreement looks like a flawed compromise and there is still, after all this time, uncertainty over who will qualify for these lesser rights post-Brexit,” says a statement of the3million, a group defending rights of EU citizens in Britain.

Campaigners worry in particular about the UK’s “settled status”. They say: “This requires over three million people to apply for the right to stay instead of being granted residence rights. The current registration system has an error rate of 10% and a rejection rate of 27%. This is likely to go up significantly when three million people have to apply for settled status”.

 

Claudia Delpero © all rights reserved.
Photo courtesy Pixabay.