Brexit: future rights of UK citizens in the European Union

Lucy Trevelyan

As the UK unveiled its settled status scheme for EU citizens that wish to remain in the UK post-Brexit, British Home Secretary Sajid Javid took to social media to criticise EU countries for ‘taking far too long’ to outline their plans for Britons living on the continent after Brexit.

‘Publishing details of how we will administer our settled status scheme shows we are honouring the commitments made towards EU citizens living in the UK,’ he said.

‘But I am concerned that I have not seen any similar plans on how EU Member States are going to support British nationals in their countries. This is not good enough and I hope both the European Parliament and Commission will exert more pressure for them to do this as soon as possible.’

Jane Golding, Chair of British in Europe, a coalition of UK citizens living in the EU, has suggested that ‘this display of concern from the British government is a bit late and a bit rich.’ Laura Devine, Managing Partner of Laura Devine Solicitors, says the UK was slow to release details on its post-Brexit plans for EU nationals and it was the UK that voted to leave the EU, so shouldn’t complain that the EU’s plans remain vague. ‘Many in the EU27 share this sentiment,’ she says.

If this withdrawal agreement becomes reality, the British citizens living in the EU and the EU citizens living in the UK would be relieved

Karl Waheed
Karl Waheed Avocats, Paris; Vice-Chair, IBA Immigration and Nationality Law Committee

The most recent draft of the Withdrawal Agreement was published by the European Commission in March 2018. It states that UK nationals and family members exercising their right to reside in an EU Member State up to the end of the transition period – expected to be 31 December 2020 – will retain their rights of residence and access to benefits.

The Draft Agreement suggests Member States will certify these rights either on a declaratory basis, whereby rights are simply acquired, or on a constitutive basis, whereby immigration status must be applied for. It’s not yet known which system EU Member States will use.

EU and British flags jigsaw

‘A declaratory system would be much easier to implement and use, while a constitutive system would require more administrative oversight, risks denying status owing to human error, and requires that migrants demonstrate their right to be in the country of residence, which some may not be able to do,’ says Devine. ‘Also unresolved is whether UK nationals exercising their rights within their EU Member State of residence prior to the end of the transition period will also retain their rights of free movement to work, study, and reside in other Member States, or if they will be limited to the state in which they reside at the time of Brexit.’

The benefits of the agreements so far, says Karendeep Kaur, immigration analyst at Migrate UK, is that they provide clarity on where individuals and their family members stand regarding living and working in a foreign Member State. ‘Individuals can plan for their future and put into motion the best step forward for their family. However, the question will arise when the national law for the Member State in question imposes their restrictions on the family members who were not resident with the Union or UK national prior to the specified date.’ This will place an onus on the family member to prove a relationship was pre-existing, which may be hard to do, particularly with long-distance relationships.

Karl Waheed is Vice-Chair of the IBA’s Immigration and Nationality Law Committee and founder of Karl Waheed Avocats in Paris. He says the Draft Agreement shows that there has been a lot of headway on citizens’ rights. ‘If this Withdrawal Agreement becomes reality with Articles 8–27 in their current state, the British citizens living in the EU and the EU citizens living in the UK would be relieved; and life will continue as before,’ says Waheed. ‘This being said, the move of some of the financial, insurance and banking sector out of London, to Paris, Amsterdam, Frankfurt, is a process which is very much in train. We are also receiving quite a few requests by British citizens for assistance in applying for a French or another EU nationality.’

Claire Brook, employment law partner at Aaron and Partners, points out that even the limited rights listed in the Withdrawal Agreement are agreed on the basis of ‘nothing is agreed until everything is agreed’, and so are not set in stone. ‘The EU would like an outline trade deal agreed by October 2018 so it can be voted on in the European Parliament and then ratified by the remaining EU27 in time for 29 March 2019. The UK is yet to spell out any detail of what it wants from a Brexit deal, much to the frustration of the EU and several issues, such as a solution to avoid a hard Irish border, still need to be resolved.’