Deal or no deal: the rights that will be lost with Brexit

Deal or no deal? That is the question. Despite the promise that nothing will change for them, both EU nationals living in the UK and British residents in the rest of the EU are to lose out from Brexit. The situation could even be worsened if there is no agreement on the terms of the UK’s departure from the European Union. The failure of talks at the EU summit in Salzburg this week did not offer assurances in this regard, leaving people whose status depends on EU treaties in a troubling state of uncertainty.

This is an overview of what can happen to the rights of 3.7 million EU citizens who are living in the UK and 1.2 million British citizens who are living in another EU country after Brexit. As inconceivable as it was before the EU referendum, the overview shows the rights preserved and lost under the draft “deal” published in March and in the event of “no deal”.

In short, the right to family reunion, the ability to exercise professional activities across countries and to participate in political life, will be weakened under the draft withdrawal agreement. But in the case of “no deal”, there will be even heavier consequences in terms of potential loss of acquired pension rights, free or subsidised healthcare when travelling and ability to provide services across borders.

Infographic: Saved and lost Brexit rights.

Free movement rights

Entry without visa. People covered by the withdrawal agreement will continue to move across EU and UK borders without a visa and their non-EU family members will be issued visas for free through an accelerated procedure. In the event of “no deal”, UK nationals who hold a residence card from any EU country will be able to travel within the EU without the need for a visa. Similarly, EU nationals who hold settled or pre-settled status in the UK will not need a visa to enter the country. However, non-EU family members will no longer benefit from visas free of charge.

Residence, work and study. The rights to reside, work and study in the current country of residence are preserved in the withdrawal agreement. However, EU nationals in the UK will have to apply for settled status and be subject to criminality checks, instead of benefing from the automatic entitlement to residence deriving from EU treaties. EU countries may also introduce similar requirements for British residents, but no Member State has so far expressed an intention to do so. The requirement for non-economically active citizens to have “comprehensive sickness insurance” to attain permanent residence will not apply for EU citizens seeking settled status in the UK, but has been carried forward for UK nationals living in the EU. A “no deal” is not expected to reverse the UK decision to introduce the new settled status for EU nationals, but domestic immigration laws will apply to British citizens in EU countries, instead of the more generous rules under the withdrawal agreement.

Family reunion. Under the withdrawal agreement, family members (including close relatives, partners in a durable relationship, and other persons whose presence is required, such as carers) irrespective of their nationality, can join people covered by the withdrawal agreement in the country of residence, as long as the relationship existed before 31 December 2020 (the end of the Brexit transitional period). Future family members (except children) will face tougher immigration laws if their relationship begins after 31 December 2020. In the event of “no deal”, family members of EU citizens in the UK will benefit from the new settled status only if they are already in the UK. British citizens living in the EU will have to comply with the family reunification rules of the EU country of residence.

Non-discrimination. People covered by the withdrawal agreement will continue to enjoy equal treatment with nationals as regards employment, working conditions, university tuition fees and all other social and tax benefits. In the event of “no deal” the right to non-discrimination will be governed by national law. EU citizens in the UK who obtain the new settled status should be able to benefit from full access to work and public funds, as is presently the case for persons with ‘indefinite leave to remain’ (the permanent residence status for non-EU nationals). The situation of EU citizens with pre-settled status is unclear. By becoming ‘third country nationals’ under EU law, British citizens in the EU will be able to benefit from some more limited rights to non-discrimination.

Continuous free movement in the EU. British nationals in the EU will lose this right, unless it is negotiated as part of the future EU-UK relation. As ‘third country nationals’ who are long-term residents, the Schengen rules would not provide them an unfettered right  to move to another member state. EU citizens will obviously maintain the right to move freely within the EU.

Resuming residence after a period abroad. People covered by the withdrawal agreement will be able to leave the host country for up to five years without losing their residence status. This is more generous than the two years currently allowed under EU law, but is not comparable to the life-long right provided by free movement rules. An absence of more than five years means protection under the withdrawal agreement is lost and resuming residence would require complying with national immigration laws. A “no-deal” is not expected to reverse the decision to introduce the new settled status and allow an absence of up to five years for EU citizens in the UK. The right for UK nationals in the EU would be covered by Schengen rules or by national rules for countries not part of the Schengen area. The Schengen rules allow long-term residents an absence of 12 months.

Return to home country with non-EU family members. The right of EU and UK nationals to return to the home country and take up residence with their non-EU family members is not protected in the withdrawal agreement, although it has been recognised by a high profile ruling of the European Court of Justice. This means that a British national having resided in the EU will no longer be able to claim the automatic benefit of EU residence for non-EU family members, if they return to the UK after 31 December 2020. Similarly, more onerous rules may apply for EU citizens with non-EU family members returning from the UK, which will be at that point a ‘third country’. “No deal” would mean this right will no longer exist from 30 March 2019 (for British citizens returning home, possibly at a later date whenever the UK authorities revoke the Immigration EEA Regulations 2016).

Social security rights

Social security and pension coordination. People covered by the withdrawal agreement (including EU nationals who worked in the UK in the past, or vice versa) will continue to benefit from the current rules on social security coordination, including the aggregation of contributions for state pensions. The indexation of British pensions paid to residents of EU countries will continue. In the event of a “no deal”, UK nationals in the EU and EU nationals in the UK could benefit from protections provided by bilateral agreements or by the Council of Europe’s Interim Agreements on social security. But these protections are more limited, more complex and do not cover all EU countries, potentially putting at risk the acquired rights to receive a state pension for thousands of past and present mobile citizens.

Export of social security benefits to other EU countries. The withdrawal agreement preserves the exportability of benefits. In the event of a “no deal”, a similar situation to social security and pension coordination will apply.

Healthcare. The right to healthcare forms part of the protections of social security rights under the withdrawal agreement. The European Health Insurance Card (EHIC), which allows necessary care when travelling throughout the EU and the UK, will remain in use for people covered by the withdrawal agreement. But in the event of “no deal”, EHICs issued in the UK will no longer be accepted in EU countries and vice-versa.

Work rights

Recognition of professional qualifications. Under the withdrawal agreement, the recognition of qualifications that enables UK and EU professionals to practise across borders without having to re-train remains in place. This concerns all regulated professions, such as engineers, architects and nurses. However, there are some limitations regarding lawyers practicing under their home professional title (e.g. a solicitor qualified in Scotland who works in Paris without having converted to a French ‘avocat’). Another limitation applies to British citizens in Europe who will lose the right to recognition of their professional qualifications beyond their host country. The situation of frontier workers is unclear. The recognition of professional qualifications gained after Brexit will depend on the future trade relation. In the event of “no deal”, the arrangements concerning the recognition of professional qualifications would no longer apply. However, professional qualifications held by EU citizens in the UK would continue to be recognised until the UK regulations which give effect to EU rules (under the EU withdrawal bill) are repealed or amended.

Establishing business. The right of EU citizens living in the UK to establish businesses is protected under the withdrawal agreement, as well as the rights of UK nationals to establish a business in their country of residence. The right of UK nationals to establish a business in another EU country after Brexit, however, will depend on the future trade relation. In the event of “no deal”, UK nationals living in the EU would be subject to the national rules of the country where their business is set up, knowing that a business set up in an EU country is considered an EU entity. EU citizens living in the UK would be free to establish themselves in other EU countries.

Cross-border services. The right to provide cross-border services (that is offering services to people or companies based in another country) will depend on the future trade relation. This affects both EU citizens with an established business in the UK and UK nationals with a business in their country of residence. In the event of “no deal”, the right to provide cross-border services would cease to exist.

Judicial rights

Referral to the European Court of Justice. Under the withdrawal agreement, EU citizens in the UK will retain the possibility to refer cases on the interpretation of their rights to the European Court of Justice for a period of eight years following the end of the transitional period. The European Commission will monitor the application of the withdrawal agreement in the EU, while an independent authority will be established to fulfil this role in the UK. This body will have the power to receive complaints from EU citizens living in the UK and their families, conduct inquiries on its own initiative and bring legal actions before the UK courts to seek remedy. But a joint committee supervising the implementation of the agreement will decide, eight years after the end of the transition period, whether to abolish this authority. These judicial safeguards would no longer benefit EU citizens in the UK in case of a “no deal”, but UK citizens in the EU would continue to be able to refer to the European Court of Justice.

Political rights

Participating in municipal elections. The right to vote and stand as candidates in municipal elections has not been preserved by the withdrawal agreement because it is linked to EU citizenship, which will be lost by British nationals once the UK leaves the EU. A “no deal” would not change this situation. The British government said it intends to negotiate the right to vote in municipal elections bilaterally with EU member states. Some countries, like Sweden, guarantee the right to vote in municipal elections to long-term residents regardless of their nationality. British citizens who have resided out of the UK for more than 15 years also lose their right to vote in the UK, which means they could be left with no voting rights at all depending on the country where they live. EU citizens in the UK may be able to vote in municipal elections in their country of origin, depending on the national electoral framework. EU directives do not cover the right to vote in general elections.

Participating in European elections. Deal or no deal, British nationals will lose the right to elect members of the European parliament and stand as candidates in European elections. EU citizens in the UK will maintain this right depending on the rules in their home country, but they will no longer have the choice of voting in the local British constituency, thus reducing the proximity to their representatives.

Start and participate in European Citizens’ Initiatives (ECIs). British nationals will lose the right to submit and take part in this form of petition to call on the European Commission to make legislative proposals. EU nationals residing in the UK will only be able to take part in ECIs in their home country if this is permitted under the national rules giving effect to ECIs.

Petition EU institutions. Any EU citizen and any person residing in an EU country can petition the European parliament, submit complaints to the European Commission, request access to EU documents or, in cases of maladministration by EU institutions, complain to the European Ombudsman. British residents in the EU will be able to continue to do so, as well as EU citizens residing in the UK. Nothing will change in this respect in the event of “no deal”.

Consular protection in third countries. British citizens will lose the right to seek consular protection from other EU states in third countries. EU citizens will continue to benefit from consular protection from other EU states in third countries where their home Member State has no consular presence. A “no deal” would not affect these rights.

Other issues

There are various other personal rights which protect consumers and workers as part of the EU’s single market rules. These include employment rights, such as working time, parental leave or health and safety conditions at work; consumers rights, such as guarantees and returns for goods, compensation for travel delays or the ban on international payments surcharges; the mutual recognition of driving licenses; and protections related to financial services, for example on the portability of private pensions or minimum terms of insurance cover. All these rights will depend on the future trade arrangements between the UK and the EU.

The EU’s free movement rights apply also to citizens of Norway, Iceland and Liechtenstein, as they are members of the European Economic Area and form part of the single market. The EU withdrawal agreement does not cover these countries but the UK is negotiating citizens’ rights separately with them.

Irish citizens will be subject to a separate, and more favourable, regime that was already in place before the UK and Ireland joined the EU.

The situation of UK nationals who move to an EU country after Brexit and the future rules governing the rights of EU citizens who move to the UK are yet to be agreed and are therefore not covered here.

 

Claudia Delpero in collaboration with Anthony Valcke, Founder and Supervising Solicitor of the EU Rights Clinic© All rights reserved. Photo via Pixabay.

The EU Rights Clinic is the first law clinic in Europe to specialise in EU law. The Clinic was founded in 2013 in partnership between the University of Kent in Brussels and the European Citizen Action Service (ECAS). The Clinic has the twin aim of helping people resolve problems that they may encounter when exercising their EU right of free movement and giving them an opportunity to contribute to improvements in European law and policy by using their personal experience as the basis for evidence-based advocacy. In its five years of operation, the Clinic has received over 700 requests for assistance and dealt with over 300 cases in which EU citizens were facing problems in Belgium, Cyprus, France, Germany, Ireland, Spain, Sweden and the UK.

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