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The rights of EU nationals in the UK: Where are we now?

Along with Northern Ireland and the financial settlement, citizens’ rights were one of the three issues forming part of the “phase 1” Brexit negotiations, agreement on which was a prerequisite for the EU moving to phase 2. On 8 December 2017 it was announced that sufficient progress had been made on the phase 1 issues to move to the second stage. This blog post considers the implications of that agreement for EU nationals resident in the United Kingdom. For further detail, see the Joint Report from the Negotiators and the Joint Technical Note on Citizens’ Rights of 8 December. For the Commissions account of the agreement, including outstanding “phase 1” issues, see its Communication to the European Council

Nothing is agreed until everything is agreed

This caveat is crucial. The agreement reached on 8 December is an agreement on what will be said about citizen’s rights in the event that the parties conclude a Withdrawal Agreement. The consensus is that “no deal” is less likely than it was a week ago, but it remains a possibility. Calls for unilateral guarantees on citizens’ rights have so far been unheeded. 

Nothing is known about UK policy on what should happen in the event of no deal. However, given the economic impact and logistical hurdles that would result from a last minute change in approach, as well as the intention that, in such circumstances, the UK “will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support … cooperation [between Northern Ireland and the Republic of Ireland]” (para 49), it seems likely that an approach in line with the agreed position on citizens’ rights would be adopted in any event. 

Where had we got to?

The Commission and the UK set out their respective negotiating positions in June of 2017; see here and here

The Commission’s position, summarised in an earlier Brexit Blog post, was to pursue effective, enforceable, non-discriminatory and comprehensive reciprocal guarantees to safeguard the status and rights derived from EU law at the date of withdrawal.  This included rights to permanent residence, non-removability, benefits, pensions and automatic family reunion, with CJEU oversight. 

The UK’s proposal, in outline, was to establish a system whereby EU citizens’ in the UK, and their family members, would have to apply for a new status: “settled status” (i.e. indefinite leave to remain) for those with an entitlement to permanent residence, and a form of temporary status with a route to settlement for others residing under Community Law. The CJEU, it was said, “will not have jurisdiction in the UK.” 

The last detailed position statement on citizens’ rights prior to last week’s agreement was the Joint Technical Note published on 28 September 2017 after the fourth round of negotiations. A number of issues remained. The following were of direct relevance to the status of EU nationals in the UK: 

  • The relevant “cut off” date;
  • Family reunion and future family members post-exit;
  • Approach to post-exit criminality;
  • Loss of permanent residence after a period of absence;
  • Individual enforcement of rights;
  • The role of the CJEU;
  • Future CJEU caselaw;
  • Administrative procedures, including;
    • Relevance of permanent residence documentation
    • Permissibility of systematic criminality checks;
    • Procedural safeguards and judicial redress.

What was agreed on 8 December?

The agreement permits the UK to adopt a system requiring EU nationals and their family members residing here to apply for a form of status (para 16). It does not preclude an approach whereby rights are conferred by operation of law and residence documentation is declaratory of pre-existing rights, but this is not the UK’s intention (see, most recently, the Technical note on citizens’ rights, administrative procedures in the UK published by the Home Office on 8 November 2017). As such, the proposal is, as per the UK’s June position paper, that EU nationals will have to apply for settled status, if entitled to permanent residence, or a form of temporary status with a route to settled status, if not so entitled. 

As to resolution of the outstanding issues identified above, the position in outline is as follows:

Cut off date

The cut-off date (the “specified date”) will be, as expected, the “the time of the UK’s withdrawal” (para 8). Free movement rights will apply at least until that date. Interestingly, the Commission’s report to the European Council says this about the impact of any agreed transitional period:

In the Commission’s view, in case of any transitional period implying the continued application of the Union's acquis on the fundamental freedoms, it is clear that citizens would need to be fully entitled to their rights to free movement as before the United Kingdom’s withdrawal, and that, therefore, the provisions of the Withdrawal Agreement on the content of citizens’ rights and on governance as regards those rights can only become applicable at the end of such transitional period. In other words, in such case, the ‘specified date’ should, in the Commission's view, be defined not as the date of the United Kingdom’s withdrawal, but as that of the end of the transitional period. 

This raises the possibility of free movement rights continuing until the end of any transitional period, currently expected to be in the region of 24 months. 

Family reunion

As regards family reunion, irrespective of nationality, the following categories of family members who were not residing in the UK on the specified date will be entitled to join an EU citizen right holder after the specified date for the life time of the right holder, on the same conditions as under current Union law (para 12): 

  • all family members referred to in Article 2 of Directive 2004/38/EC (i.e. spouse, civil partner, direct descendants who are under 21 or are dependants and those of the spouse or partner, and dependent direct relatives in the ascending line and those of the spouse or partner), provided they were related to the right holder on the specified date and they continue to be so related at the point they wish to join the right holder; and 

  • children who, after the specified date, are born to or legally adopted by (i) parents who are both protected by the Withdrawal Agreement or where one parent is protected by the Withdrawal Agreement and the other is a national of the host State, or (ii) a parent who is protected by the Withdrawal Agreement and has sole custody of the child under the family law of the UK or an EU27 member state. 

The UK will facilitate entry and residence of partners in a durable relationship within the meaning of Article 3(2)(b) of Directive 2004/38/EC after withdrawal in accordance with national legislation (i.e. under the Immigration Rules) if the partners did not reside in the UK on the specified date, the relationship existed and was durable on the specified date and continues to exist at the point the partner wishes to join the right holder (para 13). 

Other than as set out above family reunion rights after the specified date will be subject to national law (para 14). 

The position set out above does not address future partners or spouses who would, prima facie, fall to be considered under national law. However, the Commission’s report to the European Council makes clear (at para 14) that this issue remains unresolved, stating that in its view, reunification rights “shall also cover future partners or spouses”, and that this “important matter” should be dealt with during phase 2, “and will inevitably be linked to the level of ambition of the future partnership between the EU and the United Kingdom.” 

Post-exit criminality

Whereas the relevance of pre-exit criminality to applications for residence status going forward will be by reference to the higher threshold set out in Community law (specifically, Chapter VI of Directive 2004/38/EC), post-exit criminality will be assessed by reference to domestic law criteria (paras 26 and 27). As such, there is no weakening of existing protection up until the specified date, but thereafter, EU nationals who offend will be in no stronger position than nationals of non-EU countries when expulsion is considered. 

Loss of permanent residence after a period of absence

The agreed position is that “settled status” will be lost after an absence for a period exceeding five consecutive years (para 25). 

Enforcement of rights and the role of the CJEU

Union law concepts in the citizens’ rights Part of the Withdrawal Agreement are to be interpreted in line with the case law of the CJEU as it exists at the specified date (para 9). 

Direct effect: The Withdrawal Agreement shall provide for the legal effects of the citizens’ rights provisions contained therein, and UK domestic legislation will also be enacted to that effect.  EU citizens will be able to rely directly on the rights in the Agreement, which should specify that inconsistent or incompatible rules and provisions will be disapplied. 

CJEU: As regards interpretation of the citizens’ rights provisions:

  • Appropriate mechanisms” should be established to ensure consistent interpretation as between the EU and the UK (para 37); 

  • In relation to CJEU decisions after the specified date, the requirement is only that UK courts give them “due regard” where “relevant” (para 38, cf. section 2(1) of the Human Rights Act 1998, which provided that domestic courts must “take into account” relevant decisions of, inter alia, the European Court of Human Rights). However, this is in the context of the CJEU being the “ultimate arbiter of the interpretation of Union law”, and the express obligation to identify “appropriate mechanisms” for ensuring consistent interpretation. It is difficult to envisage circumstances in which the domestic courts would depart from relevant CJEU authority. This formulation appears to achieve the twin objectives of ensuring that, as a matter of law, the CJEU does not have jurisdiction in the UK (cf the UK’s June 2017 negotiating position, above), whilst ensuring that in practice, its rulings will be applied. 

  • Consistently with that analysis, provision is made for a mechanism to enable UK courts or tribunals to decide, having had due regard to whether relevant case-law exists, to ask the CJEU questions of interpretation of those rights where they consider that a CJEU ruling on the question is necessary for the UK court or tribunal to be able to give judgment in a case before it.” This mechanism is to exist for eight years from the date of application of the citizens’ rights part of the Agreement. 

  • It is envisaged that the UK Government will have the right to intervene in relevant proceedings before the CJEU and, interestingly, that the Commission will have the right to intervene in relevant proceedings before UK courts and Tribunals (para 39; see further Brexit Blog comment here). 

Administrative procedures

Administrative procedures for status applications will have to meet a number of requirements (para 17):

  • Evidential requirements cannot be more than is strictly necessary and proportionate;

  • Application forms will be “short, simple, user friendly and adjusted to the context of the Withdrawal Agreement” (so presumably less than the current 85 pages);

  • The UK “will work with the applicants to help them prove their eligibility under the Withdrawal Agreement and to avoid any errors or omissions that may impact on the application decision”;

  • Applicants will be given the opportunity to furnish supplementary evidence or remedy any deficiencies where it appears a simple omission has taken place;

  • A principle of evidential flexibility will apply, enabling the Home Office to exercise discretion in favour of an applicant where appropriate;

  • A proportionate approach will be taken to those who miss the deadline for application where there is a good reason. 

If, as seems inevitable, the UK wishes to impose a requirement that EU nationals apply for a new form of residence status, a period of “at least two years” will be allowed for applications to be made, during which individuals will enjoy the rights conferred by the Withdrawal Agreement. 

In this context, systematic criminality and security checks will be permissible (para 24). 

Individuals who hold permanent residence documentation by the specified date “will have that document converted into the new document free of charge, subject only to verification of identity, a criminality and security check and confirmation of ongoing residence” (para 23). There will therefore be at least administrative benefits to having obtained permanent residence documentation in advance of the specified date. 

Procedural safeguards and judicial redress: Decisions on status are to be taken by reference to objective criteria in the Withdrawal Agreement. There will be no discretion unless in favour of the applicant. There will be safeguards for a fair procedure (as yet unspecified), and decisions “will be subject to the redress mechanisms and judicial controls provided in Directive 2004/38/EC”, necessitating access to a full merits review (see para 19).

Monitoring

The implementation and application of the citizens' rights Partof the Withdrawal Agreement will be monitored on the EU side by the European Commission and on the UK side by a new independent national authority. 

Addendum (with thanks to Jonathan Kingham of LexisPSL) 

Since publication of the joint report, the UK government has updated its relevant materials for EU citizens, in particular its documents: Status of EU citizens in the UK: what you need to know and Example case studies: EU citizens' rights in the UK. The ‘Status of EU citizens’ in the UK document confirms that the government expects the offer to be extended to resident nationals of Norway, Iceland, Lichtenstein and Switzerland, and that Irish nationals will not need to apply for the new settled status (as ‘the rights of British and Irish citizens in each other’s countries are rooted in the Ireland Act 1949’).