Brexit: Deal or no-Deal: The Consequences for freedom of movement of EU and British Citizens
By Elspeth Guild, Jean Monnet Professor ad personam, Radboud University Nijmegen and Queen Mary University of London
The determination of the British Government to follow the ‘voice of the people’ after the referendum of 23 June 2016 and trigger Article 50 Treaty on European Union (the provision which permits a Member State to leave the EU) has resulted in an inordinate number of very lengthy documents which seek to nail down the terms of the UK’s departure scheduled 29 March 2019 and set a path for the future. Negotiations regarding the terms of the UK’s departure started in September 2016 and among the most important issues was the treatment of EU citizens in the UK and British citizens in the EU after departure. By 19 March 2018 a UK-EU Withdrawal Agreement had been hammered out. This remained the state of the art until negotiations re-commenced in November 2018 and resulted in the final version of the Agreement on 25 November 2018 endorsed by the EU leaders. At the same time as the Withdrawal Agreement, EU leaders also endorsed a Political Declaration setting out the Framework for the Future Relationship between the EU and the UK.
The agreement requires adoption by both Houses of the British Parliament and the European Parliament. This process will commence in the UK on 11 December 2018. The British Parliament is highly divided about the agreement. The Government which relies on the (Northern Irish) Democratic Unionist Party (DUP) for a majority in the House of Commons, faces particular difficulties convincing the DUP members to vote for the agreement as they are dissatisfied with the clause keeping Northern Ireland in the EU Customs Union in order to avoid a hard border between the Republic of Ireland and Northern Ireland. The purpose of this blog is to examine the importance of the Agreement for EU citizens living in the UK and British citizens in the EU 27 and the consequences for these people of the agreement failing to be passed. It also very briefly examines the future of movement of persons between the UK and the EU after 29 March 2019 on the basis of the Political Declaration.
The Withdrawal Agreement
The Withdrawal Agreement provides for a transitional period which will run from 29 March 2019 to 31 December 2020 which will allow the parties to make the necessary adjustments to law and practice for the future (see below the Political Declaration on the Future Relationship after 31 December 2020). As regards EU and British citizens, free movement of persons will continue until the end of the transitional period. This is achieved by transposing into the Withdrawal Agreement the operative parts of the Directive 2004/38 on freedom of movement of EU citizens.
All EU and British citizens who are already resident on or move to the territory of the other in exercise of Treaty rights (workers or job seekers, self-employed, students, pensioners and the economically inactive but self-sufficient with comprehensive sickness insurance) before 31 December 2020 will be entitled to remain effectively on the same basis as under Directive 2004/38. On attaining five years residence in accordance with the same rules as in the directive, EU and British citizens obtain permanent residence on the territory of the state where they are which entitles them to security of residence and equal access to social benefits as nationals of the state. Their third country national family members will be entitled to join them in accordance with the generous rules of Directive 2004/38 not British national law neither Directive 2003/86 which sets out the rules of family reunification for third country nationals in the EU which are less generous than the rules for EU citizens.
Coordination of social security schemes on the same basis as EU rules (Regulation 883/2004) between the parties is included. British and EU national courts will be entitled to continue to request preliminary rulings on the position of EU and British citizens in their territory for eight years after the end of the transitional period. Thereafter disputes will be settled by an authority which will be a mixed body of EU and UK officials. The UK is adamant that EU citizens living in the UK must obtain residence documents (in an electronic form) before the end of the transitional period. Additionally, the UK plans to extend until 30 June 2021 the period during which EU citizens in the UK must apply for pre- or settled status.
In case of no Agreement
If either the British or the European Parliament rejects the Agreement it cannot come into force. If there is no deal, neither an extension of the negotiating period by 29 March 2019, there will be no protection for EU citizens in the UK or British citizens in the EU.
The UK has set up a very detailed and thoroughly worked out system whereby it plans that all EU citizens living in the UK will, over a two year period (or longer), apply for and be granted or refused residence status -either pre-settled status (limited leave to remain under the EU Settlement Scheme) or settled status depending on whether they have or have not yet accrued five years residence in the UK. Further, the UK has announced that it will not apply fully EU law to the issue of pre- or settled status but rather a simplified residence check with a few extras but critically not applying the comprehensive sickness insurance (CSI) requirement. Until very recently the UK authorities had applied the CSI requirement in a very aggressive manner to deny EU citizens rights attendant on EU law, the argument being that these EU citizens were not exercising Treaty rights because they did not have CSI during short periods of unemployment but instead continued to use the NHS to which everyone in the UK is entitled and thus could not claim the protection from expulsion of EU law. While the UK’s announcement of a relaxed approach to qualifying for settled status is welcomed by many EU citizens, there are risks inherent in it: if EU citizens are issued pre- or settled status documents without fulfilling EU law requirements for exercising free movement then should any question arise at some later date about their position, only UK law will apply.
It is very likely that even in the event of no Agreement, the UK authorities will continue to roll out their scheme to issue residence documents to EU citizens already in the UK. But there is unlikely to be a transitional period which would mean no guarantee of free movement after 30 March 2019. All EU citizens seeking a residence document will have to show that they were already in the UK before 30 March 2019. However, the law which will be applied will be national law subject to national interpretation. From past experience of UK challenges to EU free movement rights it can be expected that those likely to come under pressure on the basis of their nationality are:
(1) British citizens claiming EU rights for their third country national family members and their residence rights;
(2) Nationals of Member States which joined the EU in 2007 (Bulgaria and Romania) and 2004 (the EU 8 Central and Eastern European countries). The UK authorities have taken a range of measures against poorly paid EU workers in the UK which in effect have had a disproportionate effect of those persons.
(3) Any EU citizens in the UK who have acquired a criminal conviction. UK policy is strongly oriented towards the expulsion of all foreign nationals who have criminal convictions albeit minor ones. EU nationals are currently protected by EU law against such expulsion as the rules require a high threshold for the state to show that the person is a real and future threat to a fundamental interest of society. This protection will fall away.
(4) The final group likely to come under pressure are those EU citizens who are claiming social assistance benefits or free NHS health care. A no Agreement scenario could result in the UK assimilating EU citizens to the position of third country nationals who do not get access to social assistance or free health care except in clearly limited and defined circumstances.
For British citizens in the EU after a no Agreement Brexit, they will become third country nationals and will need to bring themselves within either EU law on third country nationals or national law of the Member State where they are living. Very few of the EU 27 have set out detailed instructions for their authorities on how to deal with British citizens after Brexit in that case.
The Political Declaration on the Future Relationship
Chapter IX of the Declaration deals with Mobility. For EU citizens, the principles of non-discrimination and reciprocity apply. This means that the UK will be expected to treat all EU citizens in the same way and not to introduce, for example, visa requirements for some EU citizens (Bulgarian and Romanian perhaps) but not for others. Visa-free travel for short term visits is planned but the EU is introducing a system of prior authorisation called ETIAS, similar to the US ESTA scheme, which will apply to British citizens in their new status as third country nationals. Study, training and youth exchanges are to be anticipated. Social security coordination is also to be addressed. Nothing further is planned or promised as regards movement of persons. Effectively, the Declaration rings the death knoll of free movement of persons between the UK and the EU.
For British and EU citizens resident on one another’s territory the Withdrawal Agreement is a very important guarantee for their lives. It assures their residence, work and benefits rights and protects them from expulsion except in accordance with the high EU standards. While British citizens will only be able to enjoy their rights in their host Member State (there is no provision for British citizens resident in an EU Member State to have intra-EU mobility rights), they will have an EU legal basis for their continued residence. For EU citizens in the UK, the Withdrawal Agreement provides for extensive oversight and judicial control mechanisms to ensure no backsliding by the UK authorities regarding the treatment of EU citizens. No Withdrawal Agreement will mean that none of these assurances will apply. Further, from the Political Declaration it is clear that the future arrangements are likely to be far more restrictive for people moving between the EU and the UK. With or without an Agreement the longer term future will bring about a deep rupture to the mobility of persons between the UK and EU.