On Friday, 9 December, the rights of EU citizens and their family members in the UK and the rights of British citizens staying in Europe post Brexit have finally become a little clearer and the Report has some good news.
Below is a summary a common understanding reached by the Negotiators in relation to citizens’ rights. Full text of the Progress Report can be found here.
I have arranged the summary under “wins” and “setbacks” headings. Of course, wins and setbacks are value judgments, I write from the perspective of the values cherished at Kadmos: right to unity of the family and individual rights of free movement. Hence, my stand on what is a win and what’s not.
- The most important win in these negotiations, in my view, is safeguarding the rights of family members both of the EU citizens in the UK and of UK citizens who have gained European rights through working or leaving in Europe. Family members will be entitled to join their European or British sponsor on the same conditions as under current EU law at any time during the lifetime of the sponsor, provided they were related at the time of the “cut off point”.
There are other major achievements:
- The ultimate cut off point (also referred to as “specified date”) will be the date of Brexit, in May 2019. This means that after this date EU nationals will be unable to travel to the UK for the purpose of exercising their free movement rights (the right to work and live freely in the country of their choice within the EU). However, those who are lawfully resident in the UK by the specified date will be allowed to stay and will have a chance to become settled.
Why this is important: in the past, there were indications from the UK government that the cut-off point could be announced retrospectively and that in the worst case scenario it could 23 June 2016.
- Those who have acquired permanent right of residence in the UK prior to UK’s withdrawal from the EU will have an opportunity to convert this document to an equivalent status document under UK domestic law. The good news is that this document will be issued free of charge (third country nationals are paying £2297 in 2017 in the figure will go up next year).
Why this is important: previous announcements by the British government referred to a “reasonable” price for this document, which could be comparable to a “reasonable” price paid by third-country nationals.
- It is promised that the requirements for residence documents will not become any more burdensome then they were pre-Brexit and that application forms will be short and sweet unlike what they are now.
- Persons who acquired permanent right of residence in the host State (whether the UK or in any EU country) will not lose their rights through an absence of up to five years (at present, the right to permanent residence is lost after two years of absence).
- Court of Justice of the European Union will continue to be the ultimate arbiter of the interpretation of Union law. A mechanism will be put in place for UK courts to continue making reference to CJEU for any disputes brought within 8 years from the date of application of the relevant statute.
- In Europe, the implementation of the citizens’ rights legislation will be monitored by the Commission. In the UK, the counterpart role will be assumed by an independent national authority. The scope of the authority of the implementation bodies will be discussed separately in the next phase of the negotiations.
And now setbacks:
- Extended family members (siblings, cousins, uncles and aunts) do not fall under the protection of the Withdrawal Agreement, except in so far that they are protected before the date of Brexit. Following Brexit, national law will apply.
- Unmarried partners in a durable relationship will remain in a slightly privileged position if compared to other “extended family members” in that the UK and the EU27 Member States will facilitate their entry and residence, provided the relationship existed and “was durable” on the day of Brexit.
- British citizens with a permanent right of residence in a host Member State outside the UK will retain their permanent right of residence but will lose freedom of movement across the EU and will need to apply for citizenship of another EU country to protect their EU rights in full.
If any of the above opens new options for you or you feel you would benefit from legal advice about your specific circumstances, please give us a call for an informal 10-minute conversation. We will then direct you to the next steps. You can send an email to [email protected] or call us on 020 8930 9503.