Our View: Protecting the Rights of European after Brexit

Since voting to leave the EU in the June 2016 referendum, the UK is negotiating its exit from the Union of what will remain to be 27 countries on 30 March 2019. The departure date after triggering Article 50, which started the process of negotiating a deal with the EU, is set to be 30 March 2019.

Having completed stage one of negotiations, the UK and EU have agreed on several issues including citizen rights after Brexit. That applies to both EU citizens living in the UK and UK citizens residing in EU countries.

2014 statistics from the Office of National Statistics found there were around 2.9 million EU citizens living in the UK and 1.2 million UK citizens residing in EU countries.

While the UK and the EU have agreed on a position and to implement citizens’ rights into UK law, there still remains insecurity.

According to the 8 December 2017 Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom’s orderly, the following position on citizens’ rights has been agreed:

• That there will be reciprocal protection for both EU and UK citizens without discrimination on the basis of nationality.
• That the specified date of arrival before which these protections will apply is the date of the UK’s withdrawal.
• The citizens’ family members and children will be able to join them after the specified date if they were family members on the specified date.
• The citizens’ partners who became partners after the specified date and other family members not covered by the specified provisions will be able to join respective citizens after the specified date in accordance with national law.
• People working as Frontier workers fall within the scope of the Withdrawal Agreement.
• The UK and EU27 Member States could make it a requirement to apply for a residence status with documentation to prove it.
• More favourable provisions can be applied to applications for permanent residency.
• Existing permanent residency documents will be converted to a new document.
• Systematic criminality and security checks can be carried out on applicants, those who fail can be removed.
• Those with permanent residence rights in a country can be absent from its territory for up to five consecutive years without losing their residence right.
• EU citizens in the UK will still be eligible for healthcare reimbursement and the European Health Insurance Card (EHIC) scheme.

A number of existing directives will be relevant here although some will be ‘grandfathered’ i.e. will apply to existing situations but not future ones. These directives include:

• Directive 2004/38 – outlining administrative procedures with proportionate criteria and evidential requirements; judicial redress against application rejections and fraudulent applications; criteria for residence status including permanent residency; restrictions on grounds of public policy or security related to conduct prior to the specified date of persons; various rights of workers, self-employed, students and economically inactive citizens with respect to welfare, employment and training.
• Regulation (EU) No 492/2011 also outlines various rights of workers, self-employed, students and economically inactive citizens with respect to welfare, employment and training.
• Regulations (EC) No 883/2004 and (EC) No 987/2009 covers social security rules although a mechanism will be established to incorporate future amendments to them.
• Directive 2005/36/EC outlines recognition of professional qualifications where the person concerned was exercising the freedom of establishment (grandfathered).
• Directive 98/5/EC Article 10 outlines rules for lawyers who gained admission to the host State profession and are allowed to practise under the host State title alongside their home State title (grandfathered).
• Directive 2006/43/EC Article 14 outlines rules around approved statutory auditors (grandfathered).

A Withdrawal Bill will place citizen rights into law. While there is consensus that EU-law norms will apply for a transitional period, these do not come with guarantees. The overriding supremacy of EU law in the UK courts will no longer exist and this presents some uncertainty. There needs to be some thought to how human rights and the protection afforded by the ECHR is strengthened within existing UK legislation, perhaps by adapting the language within the UK Human Rights Act 1998.

While there is apparent agreement between the UK and the EU on the idea that citizens’ rights will be capable of being enforced in UK courts after Brexit, it is far less obvious that there is any real agreement as to how this is to be achieved legally.

And preliminary decisions are not watertight.

The EU wants the continuation of free movement of people during a transition period and security of their rights during that period.

The UK wants EU nationals who arrive during that period to register with the Home Office and apply for employment permits after the transition period.

Meanwhile, a group of Britons are seeking clarification over their right to stay in the Netherlands after Brexit. Their case has gone to the European Court of Justice and the judgment could have implications for other Britons living in EU states.

The way current negotiations have gone have failed to fill citizens, both UK and EU, with confidence that their rights or future circumstances will be secured. This in some way has been due to the implication that citizens were being used as a bargaining chip at the start of negotiations.

The respective parties have done well to try and outline citizen rights during phase I of negotiations but firm assurance is required and is urgent