Summary:
As well as summarising three key areas of disagreement over the rights of EU nationals in the UK and vice versa that have arisen during the first two rounds of Brexit negotiations in June and July, this paper highlights eight other objections that have been made to the UK’s offer (published on 26th June), along with responses.
Introduction:
On 26th June, the UK government published its proposal for arrangements on the post-Brexit rights of EU citizens in the UK. In July 2017, it also published a comparison of the EU and UK positions on this issue. This document indicated 14 red areas of disagreement, eight amber topics where clarifications are required and 22 green areas of ‘convergence’. In an update on the progress of talks published on 9th August, Brexit Secretary David Davis said that, when the parties recommence talks on 28th August, they will need to have further discussions on three key issues:
- a) The cut-off date after which EU nationals moving to the UK would have rights different from those who are already here
- b) The question of future family reunion
- c) ‘Broader issues’ of compliance and enforcement, including the future jurisdiction of the European Court of Justice (ECJ).
We have dealt with these main areas of disagreement in our overview of the UK government’s proposal, and in our paper Preserving the Rights of EU Citizens in the UK. In brief, we have said that setting the cut-off date as late as the date of Brexit (March 2019) would be an invitation for a last minute rush as experience has shown that the imminent tightening of immigration rules can prompt a surge of new arrivals. The Home Affairs Committee made this very point in a July 2016 report. Another key EU demand is that the rights of family members to join EU citizens in the UK should be protected for life, regardless of their nationality, as well as future family members. We have argued that conceding this would not only mean EU nationals enjoying greater rights than their British neighbours; it would also curtail the UK government’s ability to control non-EU immigration. Such rights to family reunion could also apply to cousins and grandparents, greatly increasing the scope for chain migration as a result of the Brexit agreement. Finally, we have said that full powers of monitoring of EU citizens’ rights by the EU Commission, as well as full jurisdiction for the ECJ, would be unacceptable to the British people. A recent LSE survey of more than 20,000 people found that neither Leave nor Remain voters want the UK to remain subject to all ECJ decisions following Brexit. As leading barrister Martin Howe QC has argued, the EU demand for continued ECJ jurisdiction in the UK would not be in keeping with usual international practice; nor would the ECJ be likely to act as an impartial arbiter of EU citizens’ rights in the UK.
In his update of 9th August, Mr Davis said: “A number of other issues in the EU offer also emerged that will need further consideration.” This paper highlights eight other objections that have been made to the UK proposal along with possible responses.
Objection 1: The UK proposal offers no guarantees on reciprocal healthcare arrangements
UK nationals living in an EEA country or Switzerland who receive a UK State Pension or long-term Incapacity Benefit will have their state-provided healthcare costs met by the UK government (requiring only an S1 form issued by the Department for Work and Pensions as a matter of routine to such overseas residents). Meanwhile, a European Health Insurance Card (EHIC), which used to be known as the E111 Card, entitles citizens of 31 European countries to state-provided medical treatment within an EU country they are visiting – including prescriptions, GP visits and hospital stays. The UK proposal says the government will ‘seek to protect the ability of individuals who are eligible for a UK EHIC before the specified date to continue to benefit’ from these reciprocal arrangements. Despite this, European Commission officials have reportedly said to British negotiators that the UK will not be able to participate in the EHIC system after Brexit on 29th March 2019. Brexit Secretary David Davis has suggested that, even if the UK did leave EHIC upon departing the EU, the government would be willing to foot additional financial costs in providing coverage for Britons abroad (possibly amounting to around £155 million-a-year).
Response: Bearing in mind the mutual benefits conferred by the present reciprocal agreements, it would be in no one’s interest for these arrangements to be abandoned. Indeed, the UK government has said it wishes to continue current healthcare entitlements for British nationals in the EU on the same basis as they currently operate (see pp. 5 and 15 of the UK’s proposal). The EHIC is not an EU initiative and several non-EU members participate in the scheme, including non-EEA and non-EU member Switzerland. It is worth remembering that UK has already negotiated reciprocal medical deals with a number of countries, including Australia and New Zealand, under which visitors can receive free urgent treatment. Similar deals may be negotiable at a bilateral level with EU countries.
Objection 2: British nationals living in the EU could lose free movement rights unless EU citizens living in the UK following Brexit are allowed to move to another EU country and return to the UK.
These will largely be workers commuting back and forth on a daily basis across the English Channel or Irish border. However, campaign groups such as The3Million and British in Europe say they are worried that British people could be ‘landlocked’ in their country of residence after Brexit unless the UK and EU agree on the ability of the respective citizens to move around the EU after Brexit. The EU Commission’s negotiating directives, published in late May, stated the EU’s commitment to preserving the free movement rights of British nationals already living in the EU (see paragraph 21 (b) (i)). Since the UK’s proposal was published in late June, however, the EU has retreated from this. During the second round of Brexit negotiations in mid-July, EU officials intimated that British people living in the EU could lose the right to live in another member state after Brexit unless the UK makes a reciprocal offer for EU citizens living in Britain that would allow them to move to another EU country and return to the UK. The UK government’s proposal, in turn, has offered “settled status” to EU nationals, but EU nationals who are granted this status could lose it if they leave the UK for more than two years, unless they have ‘strong ties’ to the UK.
Response: Both the EU and the UK’s positions are that permanent residence can be revoked after a continuous absence of two years. However, British sources close to the negotiations have been reported as saying that they were prepared to compromise by offering those with strong ties to the UK a chance for longer breaks in residency. The UK says it seeks a similar outcome to the EU on this point. It has been reported that both sides have outlined a compromise position that would give EU nationals a ‘right of return’ to the UK even if they are have been away for more than two year. British nationals living in the EU would be allowed to retain their rights to freedom of movement. In his update on the negotiations of 9th August, Mr Davis wrote: “This will be the subject of further discussion in due course. We have also made clear that we are prepared to commit in the international agreement to going further in some respects than the requirements of the free movement directive, for example as regards the position of those, such as students, who may have been absent for longer than two years at the point of our exit. The EU has not as yet been able to commit to matching those proposals.
Objection 3: The Home Office is likely to face an administrative nightmare when around three million EU nationals apply for residency documents during the two-year window— this would mean an average of 4,100 submissions a day.
Response: The UK government has said it intends to introduce a voluntary scheme to enable eligible EU citizens to apply for their permission to stay and residence document before the date of the UK’s departure. This should ease the administrative burden and not limit applications to being processed only during the two year ‘grace period’ beginning on Brexit day. The government says details of the scheme are to be published in due course.
Objection 4: Collecting EU citizens’ biometric information during the application process would amount to Identification Cards for EU nationals ‘by the back door’
Response: Asking EU nationals with ‘settled status’ to obtain a biometric ID card would be no different to current arrangements which require many non-EU nationals who have been granted leave to remain in the UK to possess a biometric ID card as proof of their visa status. In any case, given the UK public’s strong concern about illegal immigration, there is a good case for introducing national ID cards in order to ascertain whether individuals have the right to live, work and access public services in the UK. Such cards could also help improve and streamline checks on arriving passengers and border security at ports of entry. As the columnist Philip Collins recently argued in The Times: “ID cards are compulsory in over 100 countries, many of which — Belgium, Germany, Israel, the Netherlands, Poland, Portugal and Spain, for example — are hardly surveillance tyrannies.”
Objection 5: Forcing 150,000 EU citizens to reapply for residency cards is unfair. Instead the process should be should be automatic and applicants should not have to pay any fee
This criticism, which has been articulated for instance by Andrew Tingley, an immigration lawyer with London law firm Kingsley Napley, goes beyond the EU’s negotiating position. The Commission’s negotiating directives state that any document to be issued in relation to the residence rights ‘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’.
Response: The government has said that it will streamline the application process for EU nationals applying for ‘settled status’. It notes in its offer: “The administrative procedures which they will need to comply with in order to obtain these new rights will be modernised and kept as smooth and simple as possible.” For instance, the government will no longer require evidence that economically inactive EU citizens have previously held comprehensive sickness insurance in order to be considered continuously resident.
Objection 6: The UK government’s desire to systematically check the existing criminal record of residents goes beyond existing EU law
The EU reportedly believes the U.K. should only carry out checks based on reasonable suspicion. The campaign group, the3million, said such checks would be tantamount to ‘treating 3 million EU citizens like potential criminals’.
Response: The UK’s proposed criminal record checks would apply a test similar to that which is specified in the EU’s freedom of movement directive. This provides for expulsions of those who pose a serious threat. It is important to reassure the British public that serious criminals will not be granted permanent residence.
Objection 7: The UK’s proposal made no mention of safeguarding EU citizens’ right to vote in local elections or seeking to ensure the continuation of voting rights for Britons in the EU
Response: In his update on the progress of the negotiations (published 9th August), Mr Davis said: “We have made it clear that we stand ready to protect the rights of EU nationals living in the UK to stand and vote in municipal elections. The European Parliament was clearly mistaken on this point in its recent letter published in all Member States.”
Objection 8: The deal should exclude migrant workers who are paying social security in their home state at the point of Brexit
A posted worker is defined by the EU in its posted workers directive – enshrined in UK law by the Posted Workers (Enforcement of Employment Rights) Regulations 2016 – as an ‘employee who is sent by an employer to carry out a service in another member state for a temporary period’. It has been reported that there are roughly 40,000 EU nationals who are posted workers in the UK, and a similar number of British nationals falling under the same category in other parts of the EU. The EU sees them as ‘service providers’ and not as citizens using free movement rights.
Response: Interestingly the objection here is not that the UK’s offer does not go far enough but that it goes too far in offering protection to ‘posted workers’. As Mr Davis wrote on 9th August: “Posted workers were excluded from the scope of [the EU’s] offer whereas we stand ready to protect their rights in the Withdrawal Agreement.”