by Brenda Daly (Associate Professor in European Employment Law, DCU)
At the conclusion of the third round of Brexit negotiations on Thursday, 31st August 2017, there was a palpable sense of frustration evident between both sides during the joint press conference, with little indication that any substantive progress has been made in respect of citizens’ rights once the United Kingdom leaves the European Union.
Albeit an agreed commitment had been reached by both sides to protect the rights of frontier workers, to cover future social security contributions, to protect existing healthcare rights and arrangements for EU citizens living in the UK, and to protect the rights of UK pensioners to access health care in other member states, the EU negotiation team has made it clear that there is still an overall lack of ‘decisive progress’ regarding citizens’ rights. This was in direct contrast to the UK’s position that there had in fact been ‘concrete progress’ on the matter of citizens’ rights. Michel Barnier went so far as to state that there is ‘no trust’ in relation to citizens’ rights.
One particular area of concern for EU citizens currently living in the UK is the lack of agreement regarding residency at the date of exit. Articles 6, 7 and 16 of the Citizens Directive currently provide EU citizens with rights of residence. Article 6 stipulates that EU residents have such rights of residence for up to three months without any conditions; Article 7 extends these rights to more than three months provided that EU citizens are either employed or self-employed or, if economically inactive, have sickness insurance cover as well as sufficient resources to ensure that they or their families do not become a burden on the host Member States’ social assistance scheme. Perhaps most important for many EU citizens is the right to permanent residence after a continuous period of five years in the host Member State under Article 16 (which also includes a right of permanent residence for the non-EU family members of such EU citizens). The EU proposals for the negotiations with the UK provide that such citizens ought to be deemed legally resident once this occurs, with the right of family members who accompany or join the EU citizen to continue to benefit from the same rights and protections. This proposal extends to include children who might be born after the exit day, 29th March 2019. By contrast the UK has signalled that limitations to the right to legal residence will be imposed post-Brexit, going so far as to set out that any EU citizens who are already in possession of permanent residence certificates would need to reapply.
In its report on the impact of Brexit on the acquired rights of citizens, the House of Lords Select Committee on the European Union highlight the considerable anxiety and worry among EU citizens in the UK about their continuing right to remain in the UK to live, work and study post-Brexit. Such concerns and worries are shared by UK citizens currently resident in the other EU-27 states. It is difficult for EU citizens to trust the UK government in respect of any promises made regarding protection of their acquired rights during the negotiation process. It is particularly concerning that the UK Home Office recently issued deportation letters to a number of EU citizens who are legally entitled to reside in the UK, albeit that this was later admitted to be an error. Such measures do not foster confidence in what may be decided regarding citizenship rights after the exit date.
Unfortunately, the leaked contents of the UK’s Home Office post-Brexit immigration policy document on 6th September 2017 seems to endorse this apparent unwillingness to provide guarantees or protection for the continued right of residence for EU citizens living in the UK after Brexit. The UK government has not commented on the veracity of this document. However, despite earlier assurances from the UK that the rights of those EU citizens who currently reside in the UK will be protected, its contents simply add to the extant confusion for EU citizens about their rights and status post-Brexit. For EU nationals who currently reside in the UK, there remain questions about the stability of their current rights, and their future status and security.
For the EU negotiating team, the issue of reciprocity and enforcement of citizens’ rights remains problematic. As Michel Barnier stated before the House of Lords Select Committee on the European Union in July 2017, the UK proposal ‘would mean that Union rights would be applied to British citizens resident in the Union and that British law would be applied to EU citizens in the UK, but we know that British law will be less favourable’. Furthermore, one of the key stumbling blocks to any substantive progress on citizens’ rights continues to be the UK’s unwillingness to accept that the Court of Justice of the European Union should continue to have any jurisdiction regarding the enforcement of rights by EU citizens who remain in the UK after Brexit (for further discussion on this, please see the earlier blog post by Dr Stephen Coutts).
While negotiations between the EU and the UK are becoming even more fractious, there is a disconcerting lack of clarity for the approximately 3.2 million EU citizens in the UK, and those 1.2 million UK citizens resident in the EU-27, regarding their rights in a world after exit day. Unfortunately at this time, Guy Verhofstadt’s claim that the respective EU and UK citizens and their rights will ultimately be the victim of the Brexit negotiations is looking increasingly likely. The conflicting messages from both sides quite frankly do not go far enough to assuage the genuine anxieties for all such citizens regarding the guarantee and protection of their acquired rights as EU citizens. Whatever the outcome of the Brexit negotiations, the consequences of any loss of EU citizenship rights will be profound for all those citizens who have availed of their right to free movement.