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Citizens’ rights after Brexit - some detail

THERE'S more clarity on what will happen to our EU national colleagues living in the UK after Brexit - and to our many members who are UK nationals working in the EU - after the end of the transitional arrangements that are to follow Brexit.

The Future is Europe mural in Brussels; Photo: Matt Salusbury

A mural in Brussels to celebrate the 50th anniversary of the EU's founding Treaty of Rome. But the future in the EU (and outside it, as of March 2019) remains uncertain for many.

There's some detail in the Joint Report from the Negotiators Of The European Union And The United Kingdom Government released on 8 December. The document promises that "more detailed consensus between the Parties" will be published shortly.

Register to stay in UK - but not yet

Those EU nationals "legally resident" in the UK by the "specified date" (11pm on 29 March 2019, when the UK formally leaves the EU) and those UK nationals living in other EU countries on that date will automatically meet the criteria for permanent residence (PR) in those countries.

While it's not stated in the document, EU nationals need to have been "legally resident" in the UK since 29 March 2014. They will have to apply to get a "residence document". They will have two years from that date to complete their application for permanent residence. Those who get permanent residency status will keep it as long as they don't leave the country for more than five years. Family members (broadly defined) can join them.

Procedures for EU nationals registering for permanent residence in the UK will be "no more than is strictly necessary", with "short, simple, user friendly" application forms. There's a presumption that EU national applicants will get permanent residence: "criminality" will be one of few grounds for rejection.

It's since been announced that the form to register for "settled status" in the UK will be online, with a maximum of eight questions. Registering will cost no more than £72 and take around two weeks. The UK Government says most of this evidence can be gleaned from its own HMRC or DWP data.

EU nationals will now not need to have had private health insurance to qualify.

Brief mention of the self-employed

EU citizens in the UK will get the same rights to benefits they enjoy now, as well as transfer of pension entitlement and access to healthcare. Current EU Directives guaranteeing equal treatment of the "self-employed" and "economically inactive" will still apply.

The Joint Report was followed by an open letter from Prime Minister Theresa May to "our" EU citizens. She told them "I want you to stay."

EU citizens will still be entitled to a UK European Health Insurance Card, May assured. Rights of UK nationals abroad were only briefly mentioned. She added that "right now, you do not have to do anything at all." We're waiting to see whether lawyers would agree.

Domestic legislation - uh-oh!

There's a promise that "domestic legislation will be enacted" to give EU citizens in the UK and UK citizens in the EU the same rights they have now, in a UK Withdrawal Agreement & Implementation Bill. But the Joint Report warns (sorry, notes) that the UK Parliament can later repeal the promised legislation guaranteeing EU citizens' rights.

At the end of an eight-year period (so from 2027) "national laws" will apply instead of EU Directives, raising the prospect of a whole new world of uncertainty for EU nationals in the UK and vice versa from that year.

The Joint Report expressly prohibits "discrimination on grounds of nationality" for EU or UK nationals. There are also temporary extra protections for EU nationals. Cases in the British courts involving EU citizens' rights will for eight years after the March 2019 withdrawal date "be interpreted in line with the case law of the Court of Justice of the European Union" (CJEU, also known as the European Court of Justice).

UK nationals in the EU

This deal doesn't appear to offer very much to UK nationals in the EU - they can establish permanent residence in the EU country where they live and work now, but can't subsequently move freely to another EU Member State.

It's a big ask to expect all 27 EU member states to enact their own laws guaranteeing the rights of EU nationals, and to keep them on the statute books forever. Nor is there a guarantee that any of the 27 EU member states won't at some time in the future demand a "media visa" or work visa for UK journalists.

Watch this space, possibly not in a good way

The UK Government's apparent ability to snatch defeat from the jaws of victory in progressing Brexit negotiations means all of the above can still be messed up.

For example, within days of the Joint Report, Brexit Secretary David Davis commented that the deal was just a "statement of intent". Under pressure from European Parliament Brexit coordinator Guy Verhofstadt, "unhelpful" Davis pledged to enshrine the deal in UK legislation.

Also missing is a credible assurance that the proposed deal on rights of EU nationals still stands if the UK crashes out of the EU in a "no deal" scenario.

The European Parliament still threatened to veto the final EU-UK withdrawal deal over "citizen's rights": it wants EU nationals to have the right to remain in the UK for life.

  • This article was amended on 02/01/18 to tidy up punctuation