On June 26 the government at long last announced its proposals on the rights of EU citizens in the UK in a detailed paper. Helpfully, it has also produced a shorter web page which is more accessible. The UK’s “offer” certainly meets the Prime Minister’s description of it as fair and serious but, as was indicated by the initial response to Theresa May’s summary of it at the European Council last week, the EU27 are unlikely to regard it as generous.
The good news for EU citizens is that their right to permanent residence with the same rights as British citizens will be guaranteed if they have been in the UK for five years by the time of the cut-off date. They will no longer be required to fill in an 85-page form or prove they have comprehensive sickness cover. And if they have not reached five years by the cut-off date, they will be able to stay until they do. To make the process easier, there will be a grace period after Brexit of up to two years and those who haven’t reached five years by the end of this period will be entitled to prove that they can stay. Irish nationals will have these rights automatically and will not need to apply.
The bad news is that “settled status” will replace permanent right of residence (because the latter derives from EU law) and the paper implies (but does not say) that EU citizens will need to apply for this settled status, whether or not they have already been granted a permanent right of residence. Those who have already laboured through the 85-page form are likely to be outraged by the need to start again, and rightly so.
Nor do we have the exact cut-off date yet – it will be at some point between March 29 2017 and March 29 2019. But there is a clear commitment to allow family members to stay and for both EU citizens and their dependants to continue to be entitled to pensions, healthcare, education, social housing and social security on the same terms as UK nationals. EU citizens will continue to be able to run businesses and work self-employed.
Inevitably there are differences from the EU’s position, as set out in the negotiating directives. Unsurprisingly, the government has stuck to its argument that the European Court of Justice (ECJ) should not have oversight of citizens’ rights after Brexit. The EU’s demand for ECJ oversight lacks credibility because it would require the UK to accept the jurisdiction of a court in which it would have no judges. This has been likened to the Western powers’ imposition of courts on Imperial China in the 19th century.
Reaction to these proposals has been mixed, with MEPs pleased that the UK government published its proposals in full but representatives of the three million EU citizens in the UK hostile. Yet this is just the opening bid from the UK in a complex negotiation. It is welcome that the proposals are not bound up with “red lines”. The paper is positive and consensual, even if the issue of dealing with EU citizens with criminal convictions was spun to The Times on the morning of the June 26 announcement in a rather obvious play to the Eurosceptic gallery.
Ministers are rightly concerned about the implications of Brexit for UK citizens living elsewhere in the EU. But their slowness to address the citizens’ rights issue has given the impression that they view human beings as playthings in a negotiation. They have also been slow to recognise that they will have to agree to an independent dispute resolution procedure if they are to reach agreement with the EU and avoid recourse to the ECJ.
Having now set out some concrete proposals, they need to conclude the negotiations with the EU swiftly to give EU (and UK citizens) the reassurance they need.
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Edited by Bill Emmott
The reporting so far suggests that the UK Government just has a responsibility in determining the new rules for EU nationals in the UK, but they also have a very significant role in deciding the fate of UK nationals in Europe. Those UK nationals who have made N.I. contributions and paid taxes into the UK system are very dependant on the UK maintaning its agreement to fund their pensions and healthcare. Whilst the Government appears to agree to maintain uprating of pensions in line with those paid out in the UK , very little details have been provided on healthcare. If they were no longer willing to cover healthcare for non-active UK (in the main retired ) nationals, these would in effect be left high and dry. It is unlikely that EU states would agree to fund the shortfall if Uk nationals had not built up contributions into their systems.
The EU are right to insist that the existing status and rights of EU and UK expats are respected, and should be settled before further negotiations on trade are commenced, as they should not be considered as ‘bargaining chips’.