Brexit and Citizens’ rights: The devil is in the detail

What happens to EU citizens’ rights – of EU citizens here and Brits in other EU countries – after Brexit? This is the first key issue of the Article 50 “divorce” negotiations. It is a cause of great anxiety for the millions of citizens affected.

The EU has made its position clear, proposing an unconditional lifetime guarantee on the rights currently enjoyed by those who have already exercised their freedom of movement. This would mean continued rights to residency, work, establish a business, access healthcare and social security, and accrue a pension.

The EU argues that it is only fair that people who have made life choices in good faith based on current law should not have their rights arbitrarily taken away from them.

Not so, says the UK government, whose offer falls some way short of this. It proposes to offer ‘qualifying individuals … settled status in UK law’. This means it will determine who qualifies, and that any disputes will be settled exclusively by UK courts, meaning EU citizens in Britain, unlike British citizens in the EU, will not be able to appeal to the European Court of Justice to safeguard their rights.

This has resulted in organisations representing expat citizens calling the government position derisory and accusing Theresa May of using people as bargaining chips in the negotiations by offering a package hedged with conditions and a threat of reneging if it does not get its way.

A further problem for citizens affected is that even if agreement is reached on these issues, the fact that it is just part of the wider Brexit negotiations means that it is subject to agreement on all the rest. There will be no certainty until the deal is signed and ratified. And Theresa May’s continued threat of leaving without a deal means the medium term status of millions of EU and UK citizens is far from assured. This is already affecting their careers, their mortgages, their employability, their plans to marry, inheritance rights (particularly important for Brits retired abroad), insurance policies – the list goes on.

Let’s look at the detail of what is at stake:

The very principle of freedom of movement

Freedom of movement (for those who fulfill the conditions of working, likely to get work quickly, or being self-sufficient) currently applies to citizens not just of the EU but of countries in the European Economic Area (Iceland, Liechtenstein and Norway) and to Switzerland.

According to a survey conducted by the European Citizens Action Service, this is the issue that worries people the most. Restrictions to the right of free movement is a top concern for both EU and UK citizens, with many UK citizens – a recent poll showed as many as 60% – also concerned about losing their EU citizenship.

In Britain, this issue is tied up with concerns about immigration. But, most migration to Britain is from outside the EU, where the government already has complete control of the rules about who can live here. EU freedom of movement is reciprocal, with over a million Brits living in other EU countries, and EU migrants in Britain pay their way, contributing one-third more in taxes than they receive in services and benefits. Therefore it is not a surprise that other EU countries are puzzled by Britain’s obsession with this issue, and wonder why Britain has not done what it can do within EU free movement rules to address reasonable concerns.

But this obsession will have far-reaching consequences. The government’s plan will see free movement to and from the UK come to an end when we leave the EU. Many people will acutely feel this loss: young people, retired Brits abroad, the NHS facing acute staff shortages, universities, and employers from specialist manufacturing to agriculture. The repercussions upon quality of life, personal rights and freedoms, and ultimately the economy, will be enormous.

Right to residency

EU citizens have a right of permanent residence in another EU country once they have resided there legally for a continuous period of at least five years. Under the jointly agreed EU legislation (Directive 2004/38), citizens living elsewhere in the EU, including UK citizens, have the right of ordinary residence if they have a job or are able to prove they are self sufficient, have comprehensive health insurance, or are studying.

Under the government’s plan, the three million EU citizens currently living in the UK will have to apply for ‘settled status’ after a yet to be specified date (between 29th March 2017 and 30th March 2019).

This ‘settled status’, if granted, will give EU citizens the same rights as UK citizens as regards work, benefits, healthcare and pensions, but not other aspects. The right to family reunion, for example, is not included.

Those who have already gained permanent status (with all the complicated paperwork and often at considerable cost in legal and administrative fees) will have to apply again. The government says these applications will be ‘streamlined’, but doesn’t say how much it will cost them to go through this a second time.

People who have been legally resident for less than five years at the specified date will be have to apply for temporary status in order to remain resident in the UK. If that is granted, they can then apply for permanent status once they have accumulated five years of residence, during a period of ‘blanket residence permission’ of probably two years, but there is still no guarantee that they will be granted permanent status.

Those who come to the UK after the yet-to-be-specified date will be allowed to remain in the UK for at least a temporary period and may become eligible to settle permanently, depending on their circumstances – but this group ‘should have no expectation of guaranteed settled status’ according to the government. They will likely have their eligibility measured against the existing income thresholds for non-EU nationals, or perhaps something stricter that might come out the government’s Brexit legislation on immigration.

None of this will apply to Irish citizens, whose right to reside in the UK is guaranteed by the Ireland Act of 1949, making a mockery of the government’s claim that it will treat ‘all EU citizens equally and we will not treat citizens of one member state differently to those of another.’

What is not yet clear is the status of the documents that will be issued to EU citizens to demonstrate their right of residence. Some ministers are denying that this will amount to an identity card, as it implies a ‘back door’ introduction of identity cards in the UK. David Davis has been forced into extraordinary linguistic gymnastics on this, particularly given his strident opposition to identity cards under the last Labour government.

The government has dropped its (probably illegal) requirement for non-British EU citizens (contributing to the NHS through general taxation) to have comprehensive private sickness insurance, a new requirement which they have been using since 2014 to deny EU citizens permanent residence, even when they’ve being resident for longer than five years.

As for the 1.5 million UK citizens elsewhere in the EU, the government seems not to be particularly interested in defending their rights, lest reciprocity be demanded in return. Hence the fear amongst Brits living abroad that their rights will be sacrificed. The government has at least stated that it will  continue to pay them their UK state pension, but this will be vulnerable to future changes in UK legislation and will no longer be safeguarded under EU law. And, of course, it’s now worth less abroad because of the fall in the external value of the pound after the referendum.

UK citizens may of course apply for citizenship in their host country. Indeed, applications for French nationality by UK citizens living in France more than tripled last year compared with 2015. But this is still not as good an option as having both UK and EU citizenship, and many Brits will not want to relinquish their UK citizenship at all.

Right to bring a family member

Under EU legislation that we have signed up to, this right currently extends to close family, including spouses and civil partners who are nationals of third countries. Many people move to another EU country to live with a partner or care for another family member and, although they may not be ‘economically active’, can obtain residency rights or are entitled to healthcare through their connection to that person.   

The government’s offer means family members who join as an EU citizen before the UK leaves will be able to apply for settled status. However, those who come after the UK leaves will be subject to the same rules as non-EU nationals wishing to join British citizens. This may not sound unreasonable, but UK nationals only have the right to bring over non-EU national family dependents if they are earning over £18,600. And it would mean that EU citizens in the UK have fewer rights than UK citizens in the EU.

And what about the rights of children born to EU27 citizens in the UK after we leave? Their parents’ settled status may be in limbo and they may, under whatever immigration rules we have by then, have different rights from children born to EU27 citizens before we leave. This is causing anxiety for young families and couples planning to have children, across the UK.

Right to work

Currently, EU citizens can move to another EU country to work without needing a visa, work or residence permits, and without quotas applying to their submission for employment. In addition, individuals and companies have a right of establishment to take up all types of self-employed activity, subject to some exceptions and limitations.

Restrictions could have potentially disastrous consequences for the UK economy. For example, some 60,000 to 70,000 mostly Eastern European workers come to pick and pack British fruit and vegetables every year. This work is seasonal, many of the workers stay only for a few weeks or months. Farm owners warn that their industry could collapse if freedom of movement comes to an abrupt end and there is no workable permit system in place for seasonal workers. The fact that Theresa May herself scrapped the UK’s seasonal workers scheme back in 2013 does not fill them with confidence, and the government has said nothing about seasonal work in its position paper.

The NHS is heavily reliant on nurses from other EU countries.  Alarms bells are already ringing in light of a recent report that showed a staggering 96% drop in the number of nurses from other EU countries applying to join the UK’s Nursing and Midwifery Council register in the last year. This, compounded by the seven year long 1% public pay cap that has seen nurses pay fall in real terms, has created a situation where more UK nurses and midwives are leaving the profession than joining – meaning that the UK will need to employ more nurses from abroad, not fewer.

EU citizens are already leaving the UK in their droves because of the fear of Brexit. This is not good new for British employers, British business, and the wider economy. The government’s less than satisfactory offer of settled status has not assuaged these fears. Nor has the anti-immigrant tone and rhetoric – and sometimes violence – that has surfaced since the referendum.

In the worst-case scenario of there being no deal at all, then for UK citizen who wish to work in EU countries no deal will certainly not be better than a bad deal. British people would be treated as other third-country nationals, so the opportunity to move and then look for a job – a common practice for young people who often work in the service sector, or for seasonal jobs during university summer vacations or gap years – will be over. Brits would have to apply for visas through national or EU schemes such as the EU Blue Card, EU Seasonal Workers scheme etc. most of which are tied to job offers in order for residence permits to be granted.  

Pensions and Healthcare

The right to work is also tied-up with pensions and healthcare rights. Britain signed up to EU Regulation (EC) 883/2004 which coordinates social security across the EU and ensures payments into and from different national systems. This guarantees that working or living in another EU country for a short or a long period will not lead to you losing out on such rights.

For example, some 450,000 UK citizens have availed themselves of their right to free movement to retire in another EU country or, having moved there for work, decided to stay there in retirement. Whatever their reason – climate, convenience, family ties, lifestyle, culture, whatever – they did so safe in the knowledge that their UK state pension would be honoured and uprated at the same level as in Britain (in a way it isn’t always for Brits living in other non-EU parts of the world).

The government has now said that it will maintain pension uprating for UK citizens in EU27 countries, though as this would no longer be guaranteed under EU law, but be just a promise by a government, pensioners may not be fully reassured. Still to be settled is what will happen to the pensions of those who worked in another EU country: will they be recognised by or transferable to the UK system if they decide to move back?

Similarly, under Regulations (EC) 883/2004 and (EC) 987/2009, UK citizens have access to healthcare in any EEA country on the same terms of nationals of that country if they:

  • are entitled to a state pension, contribution-based employment support allowance or other ‘exportable benefits’
  • have been posted to another EU country for a period of not more than 2 years
  • live in one EU country and work in another
  • are, in some cases, students.

The government’s offer states that it will seek to protect the above arrangements for UK nationals and EU citizens who benefit from them before the specified date, but what about those who seek to access these healthcare benefits after the specified date? For them there is no reassurance at all.  

The government also states that it will seek to secure continued access to the European Health Insurance Card (EHIC) scheme, but this needs to be negotiated. In light of Theresa May’s statement that she does not want to keep ‘bits’ of our European membership, what are the prospects for that?

Of course the big question here is who pays the cost of healthcare in a post-Brexit scenario. Treatment received in another EU country is not necessarily free at the point of use and is ultimately paid for or reimbursed by the person’s country of origin. This is only fair for the hundreds of thousands of UK citizens who have paid taxes into the UK system all their working lives but have chosen to retire to another EU (or EEA) country, and of course it works the other way around under the principle of reciprocity.

If the government does not step up to the plate and meet the EU’s offer, or if the UK crashes out without a deal, then the pension and healthcare rights of millions of UK citizens and EU27 nationals could be severely compromised or lost altogether.

Mutual recognition of qualifications

EU citizens have access to a system of mutual recognition of qualifications, which allows national qualifications to be recognised as valid in another EU country. Some 216 UK professional qualifications (including those for doctors, nurses, dentists, vets, lawyers and architects) are recognised under this system.

The government has said it 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).’

But again, without a guarantee on the recognition of qualifications, EU citizens may be very reluctant to commit to a working life in the UK and vice versa. This affects not only people’s’ livelihoods but also the recruitment and business plans for many large and small companies.

Right to study

As mentioned in my separate briefing on higher education, the UK’s ability to attract students from other EU countries, not least under the Erasmus+ scheme, is vital for the higher education sector’s income and employment, and could even affect the viability of some universities. But it also important for UK students going in the other direction, both in terms of their educational and employment opportunities, as well as the wider cultural benefits.

The government’s offer states that current EU27 students will continue to have access to loans and maintenance support before the specified date, and still have ‘home fee’ status for loans. Moreover, those who apply for a course up to 2018/19 will be allowed to stay to finish their course, and qualifications gained before UK leaves will continue to be recognised.

But why would EU27 students want to continue to come to the UK if there are no guarantees on all this after the specified date. Will they suddenly be treated as international students, having to pay higher fees? Would they come if the highly successful Erasmus+ scheme is no longer available to them? And what about academic staff and the uncertainties around the right to work and recognition of qualifications mentioned above? And what about access to lucrative EU research funding? Remember, Theresa May has said doesn’t want to stay in ‘bits’ of EU membership.  

Universities are very worried about the impact of all these factors on their revenues. Indeed, Britain’s largest university, the University of Manchester, is already threatening to cut staff numbers, citing Brexit as one of the main reasons.

Right to vote

EU citizens currently have the right to vote in local, mayoral and European elections in the UK, just as Brits in other EU countries can vote in other EU countries (and here, Irish, Maltese and Cypriot citizens can also vote in general elections). But the UK offer is silent on this matter, so EU citizens could lose the right to vote in local and mayoral elections – literally becoming disenfranchised – and presumably triggering the same for Brits living in EU countries.

Property rights

UK citizens with second homes in other EU countries are currently exempt from a second tax on these homes as EU nationals, but again the UK offer is silent on this issue and the assumption is they will likely lose this exemption after we leave.

Right to equal treatment

This fundamental right is indivisible from all of the above rights, as it is based on the principle of non-discrimination on the grounds of nationality. Yet there have been reports that EU citizens are already being denied mortgages by UK banks and that some employers are only giving EU workers fixed-term contracts. The UK Government has done nothing about this even though it goes directly against EU law – which the UK still needs to comply with until its planned departure in March 2019.

Conclusion

In reality, the UK’s conditional offer is certainly not ‘generous’ when compared to the EU’s offer. The ‘settled status’ leaves many questions unanswered and falls down on how it will be enforced. At the human level, the impression that the government is trying to use people’s lives as bargaining chips in their negotiations with the EU still prevails, as illustrated by the reactions of British in Europe and the3million, who together seek to speak for the millions of citizens affected and have called the government’s offer pathetic .

 

5 Comments

  1. Thank you, Richard Corbett, for speaking up on behalf of UK citizens in the EU & EU citizens in the UK. The EU offer was everything we could have hoped for. May’s offer on the other hand was not. We’re not looking for generosity, only justice. Why should any of us lose any of our rights & freedoms based on a reckless decision to leave the EU, that most of us never even got to vote on.

  2. Excellent article which raises points that have been worrying a LOT of people, including myself. A couple of years I started the process of moving to Spain by selling my house in Inverness. I thought then OK one step at a time. Then along came Brexit which I voted agains and my plans are in limbo. It is unsettling to say the least. Just back from Spain after a glorious five weeks. But I want to live there all the time. With the present uncertainty it is difficult to know what do and being under the time restraints of actually being in Spain, life [especially mentally] is very difficult.

  3. But Labour is also saying no freedom of movement, which doesn’t give us a lot of hope. We resent the fact that a minority vote in the UK will strip up of our rights to be European citizens. When is the whole sorry mess which appears to hold no advantages for anyone, be dropped

  4. Well researched & presented. Thank you. I despair of this Government’s rank awful hamfisted ‘negotiations’. I took early retirement as a secondary school headteacher & bought my sole residence in Spain. My pension has dropped 15% since the Referendum hammered the exchange rate…
    We are now selling up just to be on the safe side…all very traumatic &, costly unecessary.
    All this to pacify little Englanders & enable Liam Fox. & co to bring in US-style Tea Party policies of delayering the state to create the ultimate libertarian state…there is no such thing as society…just individuals & their families…rings a bell!
    Almost makes Jeremy, John & Seamus look statesmanlike reasonable…
    Almost….

  5. Thank you Richard for this detailed analysis. It is much more informative than anything we get out of the government, which seems obsessed with the very basic “right to remain” and can’t even agree on that one among themselves.
    Unfortunately, even if the government were prepared to guarantee all our currents rights and freedoms, there is at least one right which we lose by definition- the limited democratic Input that we currently have into UK law via the EU legislature. Even if provision is made for us EU citizens to be able to vote in the EP while we live in the UK, that will be rather meaningless as EU law will not apply to us. The only way I can see to give us redress, is to allow us to vote in UK general elections- pigs will fly.

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