Negotiators in Brussels and London have reached an agreement on the terms of the UK withdrawal from the EU. But it is far from guaranteed that this will survive a vote in Westminster. So the uncertainty continues for British citizens living in EU countries and EU nationals in the UK, whose status currently depends on EU rules.

To mitigate the risk of no deal, the European Commission launched this week a contingency plan to be rolled out with EU member states. Among the areas that require action “with a particular sense of urgency”, there is the position of British residents in the EU.

Failing to have an agreement in place by 29 March 2019, the European Commission recommends that British living in the EU are registered as long-term residents under rules that apply to non-EU nationals.

Citizens from non-EU countries can apply for long-term residence if they have lived in the EU for 5 consecutive years. They then obtain a residence permit valid for at least 5 years and automatically renewable. The permit guarantees the same treatment as nationals in terms of employment, education and social security. Long-term residents can also move to live, work or study in other EU countries under certain conditions, together with their families.

National authorities can only refuse the permit for public policy or public security reasons, not for economic ones. But some categories, such as students and temporary or seasonal workers, do not qualify for this status. And as regards social security rights, pension contributions previously paid in the UK would not necessarily be accounted for.

Considering “the administrative challenges which national and local authorities will face,” the Commission recommended EU countries to accept applications in advance of the UK withdrawal and to take into account periods of residence prior to Brexit.

“We face an unprecedented situation that could lead us to having no legal status,” commented Jane Golding, chair of the British in Europe coalition. “We have been saying for a long time that there would need to be provisions in EU law to protect our rights. But if there is no deal, clearly what we would want to see, and what we have been calling for, is ringfencing of the political agreement reached on citizens’ rights, since that provides by far the simplest and best way to safeguard citizens’ rights in the event of a no deal, especially those issues such as social security that cannot be dealt with unilaterally and where there must be coordination”.

The UK is set to leave the European Union on 29 March 2019. From that date, EU free movement and citizenship rules will no longer apply in Britain, nor to British residents in the EU. The withdrawal agreement would protect their status where they reside. But if the deal falls through, they might find themselves in an illegal position.

Rules on immigration and residence are of national competence and the EU intervenes when movement across borders is involved. So the ultimate decision on how to secure the rights of British residents is with each member state.

The European Commission has urged EU countries to take action and is currently assisting them “to ensure a coherent approach”. A seminar for EU diplomats on this topic is planned in Brussels on 27 November.

The approach suggested by the European Commission does not prevent EU governments from granting more favourable terms. France, for example, is already discussing in parliament the option of offering British residents a preferential treatment compared to non-EU citizens, as long as the British government does the same with EU nationals in the UK.

Claudia Delpero © all rights reserved.
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