How the UK and EU will square up on citizens’ rights

How the UK and EU will square up on citizens’ rights

Both the UK and the EU have now published formal policy papers detailing their proposals for an agreement on the rights of EU citizens in the UK and UK citizens in the EU after Brexit. While it appears to be a perpetual surprise to some, the UK and the EU are in fact engaged in a negotiation – the two sides have set out their starting positions and will now negotiate with the aim of finding an agreement that is acceptable to both. This is precisely the point of having a negotiation – if the EU’s opening offer was entirely acceptable to the UK, or vice versa, there would clearly be no need for a negotiation at all.

Nonetheless, despite the bluster and grandstanding from various opposition figures and commentators in Britain, the UK offer already comes remarkably close to the EU’s in the majority of areas. On many issues the UK’s proposal, running at 15 pages, in fact provides significantly more detail than the EU’s at only 3 pages, albeit in many cases the EU paper simply cites existing EU regulations/directives which it wishes to see continuing to apply after Brexit. In broad terms, the UK’s basic starting position is that EU citizens in the UK should receive equivalent treatment to UK nationals after Brexit – a perfectly reasonable position in itself – while the EU’s basic starting position is that the status quo where EU citizens enjoy greater rights than UK nationals in the UK should be maintained. However, the UK proposals published on Monday already concede significant ground to the EU in this regard.

The predominating narrative in the UK thus far in the negotiations has essentially been that every proclamation from the EU or one of its member states is more or less infallible, as if handed down by Moses on stone tablets, while every divergence in the UK’s position from the EU’s demands is seized upon as some sort of moral flaw and a sign that Britain is supposedly handling the negotiations badly. This hugely asymmetric way in which scrutiny is being applied by the British press will do little to advance an agreement that is beneficial for both sides – if anything it will simply encourage the EU to make more and more far-reaching demands and ultimately increase the chance of no deal being agreed at all. Compromise will be required from both sides, not just the UK side, if the Brexit process is to proceed smoothly and successfully – but there is no reason why this should ultimately not be possible.

Here, the key issues are split into three major categories – those on which there already appears to be broad agreement between the UK and the EU, those where some degree of haggling will still be required but the two sides are at least on the same page, and those where there are still major qualitative disagreements which must be resolved if a deal on citizens’ rights is to be reached, particularly in the matter of whether the Court of Justice of the European Union should have jurisdiction over the agreement.

A. Areas of broad agreement

 

Scope of the deal

UK ProposalEU Proposal
The Government will not discriminate between citizens from different EU member states in providing continuity for the rights and entitlements of existing EU residents and their families in the UK.Equal treatment amongst EU27 citizens by and in the UK in all matters covered by the Withdrawal Agreement...
Our proposals as set out below are without prejudice to Common Travel Area arrangements between the UK and Ireland (and the Crown Dependencies), and the rights of British and Irish citizens in each others’ countries rooted in the Ireland Act 1949....without prejudice to Common Travel Area arrangements between the UK and Ireland
We will discuss similar arrangements with Iceland, Liechtenstein, Norway and Switzerland (the European Free Trade Association (EFTA) States) on a reciprocal basis.

The UK and the EU agree that the deal should apply to citizens of all EU27 member states equally, with the exception of Irish citizens, where both sides have committed to finding a way to preserve the existing special arrangements between the UK and Ireland that long predate the EU. The UK goes further than the EU in saying that it will also seek similar arrangements with the the four non-EU EFTA states.

Benefits

UK ProposalEU Proposal
EU citizens with settled status will continue to have access to UK benefits on the same basis as a comparable UK national under domestic law.Equal treatment with UK nationals in the UK: you have the same rights and obligations as the nationals of the country where you are covered.
Existing rules on the rights of EU citizens and UK nationals to export UK benefits to the EU will be protected for those who are exporting such UK benefits on the specified date, including child benefit, subject to on-going entitlement to the benefit.Export of benefits: if you are entitled to a cash benefit from one country, you may generally receive it even if you are living in a different country. This applies for example to old-age pensions.
Those not exporting UK benefits at the specified date will be treated on the same basis as UK nationals in future.Waiving of residence rules: if you are entitled to a benefit for one of your family members, you cannot be deprived of that benefit if that family member does not live in the same country as you. This applies for example to family and unemployment benefits.

This is a major compromise from the UK on an issue which has historically been the cause of much controversy in the past, with the UK committing to allow all EU citizens arriving before the cut-off date to continue exporting benefits, including to children living in different countries, on essentially the same terms that they do now. This has been the site of a number of battles between the EU and the UK in the past, but this time, the UK has largely acquiesced to the EU’s demands already, choosing to fight its battles elsewhere.

Healthcare & Pensions

UK ProposalEU Proposal
During negotiations, the UK will seek to protect the healthcare arrangements currently set out in EU Regulations and domestic UK law for UK nationals and EU citizens who benefit from these arrangements before the specified date. This will ensure that EU citizens are still eligible for NHS funded healthcare in the UK and vice versa for UK nationals in the EU.The principles of coordination and cooperation between national authorities, for example on the reimbursement by the competent Member State of planned and unplanned healthcare.
The UK will also seek to protect the ability of individuals who are eligible for a UK European Health Insurance Card (EHIC) before the specified date to continue to benefit from free, or reduced cost, needs-arising healthcare while on a temporary stay in the EU. The UK will seek an ongoing arrangement akin to the EHIC scheme as part of negotiations on our future arrangements with the EU.You are covered by the legislation of one country at a time so you only pay contributions in one country. The decision on which country's legislation applies will be made by the social security institutions on the basis of Regulation 883/2004.
UK law already provides that UK state pensions are payable to anyone eligible, wherever they reside in the world. But annual increases to the UK state pension (known as ‘uprating’) to anyone living in the EU are payable because of EU law. The UK intends to continue to export and uprate the UK State Pension within the EU, subject to reciprocity.

Both sides are essentially agreed on continuing healthcare arrangements largely as they are, where UK and EU citizens are free to use each others’ health services, which will then be reimbursed by the appropriate member state. Once again, the UK provides much more detail in this area, while declaring its intention to negotiate a continuation of the EHIC scheme when talks reach that stage.

David Davis has separately said that the UK will be prepared to continue paying unilaterally for the healthcare of British expats living abroad in the EU even if no deal is reached, while the UK here has pledged to continue ‘uprating’ the UK state pension paid to UK nationals resident in the EU, in two significant moves that should provide much reassurance to the over a million British citizens currently living in the EU.

Students & Qualifications

UK ProposalEU Proposal
The UK will seek to ensure that citizens with professional qualifications obtained in the EU27 prior to the UK’s withdrawal from the EU will continue to have those qualifications recognised in the UK (and vice versa)The Withdrawal Agreement should ensure, in the UK and in EU27, the protection, pursuant to Union law applicable at the date of entry into force of the Withdrawal Agreement, of recognised professional qualifications (diplomas, certificates and other evidence of formal qualification) obtained in any of the EU28 Member States before that date.
The UK will ensure qualifying EU citizens who arrived in the UK before the specified date will continue to be eligible for Higher Education (HE) and Further Education (FE) student loans and ‘home fee’ status in line with persons with settled status in the UK. Such persons will also be eligible to apply for maintenance support on the same basis they do now.EU27 citizens and UK nationals can continue to change status and to accumulate periods leading to rights pursuant to Union law during the period of protection of the Withdrawal Agreement [e.g. a student can still become an "EU worker" after end of studies without having to comply with immigration law for third-country nationals...]
To help provide certainty for EU students starting courses as we implement the UK’s exit (including those who are not currently living in the UK), we have already confirmed that current EU students and those starting courses at a university or FE institution in the 2017/18 and 2018/19 academic years, will continue to be eligible for student support and home fee status for the duration of their course. We will also ensure that these students have a parallel right to remain in the UK to complete their course.

Both sides agree on the need for the continued mutual recognition of qualifications obtained prior to Brexit, while they are both also taking a generous approach towards students to ensure there is no disruption to EU students intending to start courses in the UK in the next two years.

Application procedure

UK ProposalEU Proposal
Qualifying EU citizens will have to apply for their residence status.. Our aim is to make the application process as streamlined and user-friendly as possible for EU citizens and their families lawfully resident in the UK. We intend to use existing government data, such as income records, to minimise the burden of documentary evidence required (for example, to prove continuous residence).EU27 citizens or UK nationals who resided legally respectively in the UK or EU27 at the date of entry into force of the Withdrawal Agreement should be considered legally resident even if they do not hold a residence document evidencing that right. Documents to be issued in relation to these rights should have a declaratory nature and be issued either free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents.
We recognise the cost of the new scheme will be important for EU nationals. The UK intends to set fees at a reasonable level. We will publish further details in due course.Any document to be issued in relation to the residence rights (for example, registration certificates, residence cards or certifying documents) should have a declaratory nature and be issued under a simple and swift procedure either free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents.

The UK and the EU disagree over whether eligible citizens in the UK and the EU should be considered legally resident without any documentation, although it is difficult to see how the agreement could be implemented without some sort of documentation, given that there will be a cut-off date after which newly arriving citizens’ rights will be different. The EU is keen to get reassurance from the British that any application process will be straightforward, following the many stories about EU citizens struggling with existing Home Office procedures, and this is something that Britain has already indicated that it will be addressing and simplifying going forwards.

 

B. Areas with room for negotiation

 

Cut-off date

UK ProposalEU Proposal
The ‘specified date’ will be no earlier than the 29 March 2017, the date the formal Article 50 process for exiting the EU was triggered, and no later than the date of the UK’s withdrawal from the EU. We expect to discuss the specified date with our European partners as part of delivering a reciprocal deal.The Withdrawal Agreement should apply to the following persons as covered by the Treaty and secondary Union law: EU27 citizens who reside or have resided in the UK at the date of entry into force of the Withdrawal Agreement; UK nationals who reside or have resided in EU27 at the date of entry into force of the Withdrawal Agreement.
The ability of EU citizens arriving after the specified date subsequently to obtain further or indefinite permission to stay will depend on the rules in place at the time at which they apply. These will be decided by the UK closer to the time.

The EU wants the cut-off date to be the date of entry into force of the withdrawal agreement, i.e. Brexit day itself: 29th March 2019, or the day after. The UK has called for it to fall in a window between the date of triggering Article 50 and Brexit day, although the UK has explicitly said the date is up for discussion. This is one area where the UK can probably afford to compromise in order to secure concessions from the EU in other areas.

Permanence of rights

UK ProposalEU Proposal
Obtaining this settled status will mean that this cohort of EU citizens whose residence started before the specified date will have no immigration conditions placed on their residence in the UK, provided that they remain resident here.The rights of the right holders set out in paragraph 1, and the derived rights of their family members, should be protected for life, provided that conditions of Union law are met.
Settled status is not the same as citizenship - for example, holders of this status do not have a UK passport - but those with settled status and at least six years’ residence may apply for citizenship. Settled status would generally be lost if a person was absent from the UK for more than two years, unless they have strong ties here.

The EU wants any “settled status” to be permanent once acquired, while the UK’s position is that it would be lost if that person moved away from the UK for more than 2 years – this will need to be resolved but should not be overly difficult to find an acceptable compromise on. In addition, EU citizens will only have to live in the UK for one further year before being eligible to apply for full British citizenship.

C. Areas of key disagreement

Family reunion rights

UK ProposalEU Proposal
Family dependants who join a qualifying EU citizen in the UK before the UK’s exit will be able to apply for settled status after five years (including where the five years falls after our exit), irrespective of the specified date. Those joining after our exit will be subject to the same rules as those joining British citizens or alternatively to the post-exit immigration arrangements for EU citizens who arrive after the specified date.Definition of the persons to be covered: the personal scope should be the same as that of Directive 2004/38 (both economically active, i.e. workers and self-employed, and inactive persons, who have resided in the UK or EU27 before the withdrawal date, and their family members who accompany or join them at any point in time before or after the withdrawal date).
Future family members of those EU citizens who arrived before the specified date – for example a future spouse - who come to the UK after we leave the EU, will be subject to the same rules that apply to non-EU nationals joining British citizens, or alternatively to the post-exit immigration arrangements for EU citizens who arrive after the specified date.
Children of EU citizens eligible for settled status will also be eligible to apply for settled status. This applies whether those children were born in the UK or overseas, and whether they were born or arrived in the UK before or after the specified date. Specifically, children of EU citizens who hold settled status and are born in the UK will automatically acquire British citizenship (and with that, the right to live in the UK). EU resident parents who arrived before the specified date, but who need to apply for permission to stay (‘leave to remain’) post-exit in order to meet the five year residence requirement, will also need to apply for the same permission on behalf of their child when their child is born.

The key point of dispute here is in the final line of the EU’s proposal, which calls for family members of EU citizens to be able to join them before or after the withdrawal date. This would mean preserving ‘super-rights’ for EU citizens which exceed what UK nationals themselves have in the some country. The UK proposal in fact splits the issue in two – it guarantees the right for children to join EU parents after Brexit, while automatically granting British citizenship to children of settled EU citizens. However, it maintains the position that spouses and other family members should have to meet the same criteria as equivalent relations of UK nationals, including the income threshold for non-EU spouses. This is set to be a major crunch point between the UK and the EU.

Jurisdiction

UK ProposalEU Proposal
After we leave the EU, we will create new rights in UK law for qualifying EU citizens resident here before our exit. Those rights will be enforceable in the UK legal system and will provide legal guarantees for these EU citizens.The Commission should have full powers for the monitoring and the Court of Justice of the European Union should have full jurisdiction corresponding to the duration of the protection of citizen's rights [sic] in the Withdrawal agreement.
Furthermore, we are also ready to make commitments in the Withdrawal Agreement which will have the status of international law. The Court of Justice of the European Union (CJEU) will not have jurisdiction in the UK.Citizens should thus be able to enforce their rights granted by the Withdrawal Agreement in accordance with the same ordinary rules as set out in the Union Treaties on cooperation between national courts and the Court of Justice, i.e. including a mechanism analogous to Article 267 TFEU for preliminary reference from UK courts to the Court of Justice of the
European Union.
For rights and obligations set out in Regulations 883/2004 and 987/2009 on the coordination of social security systems, a mechanism should be established to incorporate future amendments to those regulations in the Withdrawal Agreement.

However, the biggest disagreement by far between the two sides is over how the deal should be enforced legally. The EU is insisting on a role for the Court of Justice of the European Union, despite the UK having made clear that this is a red line in the negotiations for the past nine months. Whether this is borne out of a suspicion that the UK will attempt to renege on its commitments once the deal is done, or simply out of a desire not to see the power of its heavily politicised court diminished, this is not a position that the EU can continue to hold if it is serious about securing a deal on citizens’ rights.

The UK has instead referenced the enforcement of the deal in the international law plane, opening the door to what would likely be the most practicable compromise in the form of some sort of joint arbitration court comprised jointly of UK and EU judges, an option which the Prime Minister left on the table when responding to questions in the House of Commons this week.

Supplementary to the CJEU demands, the EU has also called for the agreement to include some mechanism which would cause it to be automatically modified if any of the relevant EU regulations were to be changed in the future. This would also be unacceptable to the UK, as it would mean that the EU could in effect unilaterally change the terms of the withdrawal agreement without any input or oversight from the UK whatsoever. In the face of what is already a perfectly reasonable and generous opening offer from the UK, this is one demand that the EU will have to accept is simply not feasible.