Citizens’ Rights after a No Deal Brexit

Professor Steve Peers, University of Essex
Having resisted unilateral
guarantees for EU27 citizens in the UK for over two years, and having promised
to protect EU27 citizens unilaterally after all back in September, the UK
government finally produced a paper
today on what happens to EU27 citizens in the UK – and UK citizens in the EU27 –
in the event of a ‘no deal’ Brexit outcome. The Commission’s recent communication
on a ‘no deal’ Brexit included its view on the same issue from the EU side.
With the vote on the withdrawal
looming in the UK Parliament (see my overview of the whole agreement
it’s an opportune moment to examine what would happen to these five million
people if there’s no agreement.
The starting point is that the ‘settled
status’ scheme for EU27 citizens in the UK would work in the same way as under
the withdrawal agreement (which I discussed the details of here),
including a five year period to leave and then return. However, this would not
be an international law obligation, so the UK government would be free to
change the details at some later date. For instance, it could have stricter
rules on what happens when workers become unemployed, or otherwise regarding
the definition of ‘worker’, or as regards qualification for permanent residence.
But for now, the government does not intend to do so, stating that the ‘basis
for qualifying will remain the same’ as under the planned scheme.
There are some differences with the
planned settled status scheme, however. There would not be a transition period
to the end of 2020 (extendable to 2022), because the withdrawal agreement
creating it would not exist (on that transition period, see discussion here).
So EU27 citizens arriving after Brexit Day would not be able to qualify under
the new scheme. The deadline for registration for settled status would end
earlier, at the end of 2020.  The lower
threshold for expulsion under UK law would apply for crimes committed after
Brexit Day, rather than crimes committed after the end of the transition
For family reunion, there would
be two cut off dates for applying the more generous rules on EU free movement
law. First, there could be family reunion under the EU rules if the family link
was created by Brexit Day. Such family reunion could take place within the
following three years. Secondly, EU citizens with settled status could invoke
the EU rules for family links created after Brexit Day if the family reunion
took place before the end of 2020. After then, stricter UK rules would apply.
This is stricter than under the withdrawal agreement, which would apply the EU
family reunion rules without a time limit as long as the family link was
created by the end of the transition period.
In institutional terms, there
would be no jurisdiction for the CJEU as regards EU27 citizens in the UK (it would
have residual jurisdiction for eight years after the end of the transition
period, under the withdrawal agreement, to interpret the citizens’ rights part
of that treaty). It is not clear if the independent monitoring authority for
the rights of EU27 citizens in the UK, which would be set up under the
withdrawal agreement, will still be set up in a no deal scenario. There would
not be a right of appeal for EU27 citizens, but rather just administrative review
and judicial review.
There would be equal treatment
for access to benefits, education “broadly on the same terms as now”. The
apparent qualification is not further explained. There is no reference to the export
of benefits, ie to children of Polish workers in the UK who are still living in
Poland. Qualifications recognised if an application to that effect is made
before Brexit Day, or if they were already recognised by then.
As it admits, the UK government
cannot alter the position of UK citizens in the EU27. It can make decisions on
some issues, however. The government commits itself to uprate pensions for UK citizens
in the EU27, subject to reciprocity.
It makes no comment on EU27 citizens who have paid into a UK state pension and
then returned to the EU27. It will give UK citizens equal access to the NHS if
they return to the UK.
There is an alarmingly vague
statement about non-UK family members of UK citizens who return to the UK (this
would apply to those with both EU and non-EU family). Surely in the interests
of equality with EU27 in the UK, as well as protection of family life, it would
make sense to maintain the government’s prior commitment to apply EU free
movement rules to UK citizens who return with their families before the end of
Cumulation of social security
contributions (ie combining contributions made in the UK and France) will be up
to negotiations. The UK commits to voting rights for EU27 citizens in English
local elections in May 2019 local elections (there is no mention of afterwards,
and voting in Scotland and Wales is up to devolved governments to decide upon).
The government is seeking reciprocity for voting rights of UK citizens in the
EU27. (Note that because the issue relates to EU citizenship, voting rights are
not covered by the citizens’ rights rules in the withdrawal agreement, and expressly
excluded from the transition period rules).
For its sake, the recent
Commission paper on the no deal scenario stated that UK citizens could apply
for long-term residence status as non-EU citizens on the basis of the relevant EU
. But it made no reference to the position of those UK citizens who would
not qualify, for instance due to spending less than five years in the country.
Even if there’s no deal with the
EU, the UK would still seek a deal with EFTA States (Norway, Iceland,
Switzerland and Liechtenstein), so EFTA States citizens in UK and UK citizens
in EFTA States would have rights “broadly as now”. There are no
further details of what this might mean.
The UK government has now made
clear that EU27 citizens in the UK would be mostly, but not entirely, in the
same position as they would otherwise be if the withdrawal agreement is
ratified. They would not, however, obtain rights if they entered during the
transition period or have access to the CJEU. From Brexit Day, it would be
easier to expel them and their family reunion rights would be curtailed. There
might not be a monitoring body helping to enforce their rights. Along with EU
citizens, there might be problems cumulating social security rights.
UK citizens in the EU face the
utter indifference of the Commission, and so in practice their position would
largely be up to national law. There is therefore a risk that, depending on
their circumstances and the actions of the Member State where they reside, they
would be far worse off than under the
withdrawal agreement, despite its flaws (most notably, it fails to secure their
continued right of free movement within the EU27).

The UK government could, of course, have announced unilateral guarantees two and a half years ago, sparing many EU27 citizens sleepless nights. For its part, the Commission could have proposed unilateral guarantees for UK citizens months ago. UK and EU27 citizens who have moved are caught between the Scylla of the UK government’s cynicism, on the one hand, and the Charybdis of the Commission’s indifference, on the other. 

Alternative approaches are
possible: either a treaty ring-fencing rights on both sides (as I suggested here),
or a unilateral measure by the EU as a whole protecting UK citizens’ rights (as
I suggested here).
To achieve either objective, the European Parliament needs to get pushier with
the Commission, making UK citizens’ acquired rights a genuine priority and
exerting whatever pressure it can to shake the other institution out of its
torpor. If that means cutting off the supply of cognac to the Berlaymont, so be
Barnard & Peers: chapter 13,
chapter 27
Photo credit: Business Insider

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