UK Offer On EU Citizens' Rights: An Edelman Briefing

UK TABLES OFFER ON EU CITIZENS’ RIGHTS Edelman

26 June 2017

Lucy Thomas Head of Brexit Advice

Pawel Swidlicki Brexit Analyst

Lucy.Thomas@Edelman.com

Pawel.Swidlicki@Edelman.com

KEY POINTS OF THE UK OFFER The UK government has today published its formal offer on EU citizens’ rights post-Brexit. If accepted, this would allow the status of the million or so UK nationals in the EU to be settled. This will be a key element of the first stage of the Brexit talks.

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Post Brexit, all EU citizens and their families in the UK, regardless of when they arrived, will need to obtain a new immigration status (even those who post-Brexit successfully navigated the 85-page residence application). This will be provided in the form of a new residence document differentiating them from new post-Brexit arrivals.

In order to avoid a legal cliff-edge between the end of free movement and the point at which EU citizens apply for and obtain their new status, the UK will bridge this gap by providing “a period of blanket residence permission”, likely to last for two years. As the government acknowledges, “it will be impractical to issue a very high volume of residence documents immediately when the UK leaves”.

EU nationals resident in the UK for at least five years prior to the cut-off date and who are not deemed to pose a security risk can apply for settled status which will entitle them to “work or study here freely, live permanently in the UK with a partner who has settled or is a UK national, and have access to benefits and public services in line with UK nationals.”

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The cut-off date is yet to be determined – the UK has said that it “will be no earlier than 29 March 2017, and no later than the date of the UK’s withdrawal from the EU.”

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EU nationals who have arrived before the cut-off date but who haven’t yet accrued 5 years’ continuous residence at time of Brexit will be able to apply for temporary status in order to attain the necessary qualification period.

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Those EU citizens who arrive after the specified date will be “allowed to remain in the UK for at least a temporary period and may become eligible to settle permanently, depending on their circumstances – but this group should have no expectation of guaranteed settled status”.

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Settled status is not permanent – the government says that it “would generally be lost if a person was absent from the UK for more than two years, unless they have strong ties here.”

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The new settled status will not apply to Irish nationals whose status is superseded by the Common Travel Area arrangements and social and economic rights set out in the 1949 Ireland Act. Ireland aside, all other EU nationals will be treated equally.

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There will be parallel discussions with EFTA states (Norway, Iceland, Liechtenstein and Switzerland) about reciprocal arrangements.

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EU citizens’ rights will be enshrined in UK law and enforceable through the UK judicial system. As expected, the UK has ruled out the possibility of ECJ jurisdiction, although it says that the commitments “will have the status of international law.”

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The procedure for applying for UK residence will be streamlined. The UK will minimise the burden of documentary evidence required use existing government data where possible. Application fees will be set at a ‘reasonable level’.

HOW WILL THE EU RESPOND? Theresa May received a mixed response at Thursday’s European Council summit when she presented her counterparts with the outline of today’s offer, with much of the criticism focusing on the lack of detail. Today’s publication has at least filled in many of those gaps and there have been some moderately encouraging noises from EU member states including Poland, which accounts for almost a third of all EU nationals in the UK. However, in a reminder of how difficult the talks will be even on this point, Michel Barnier, the EU’s chief negotiator, tweeted that “more ambition, clarity and guarantees needed than in today's UK position.”

Below we assess the key sticking points although it should be remembered that as in any negotiation, the UK’s proposal has to be seen as an opening gambit and not the final offer.

Dispute resolution: The EU is likely to maintain its insistence on giving the ECJ a formal role in the process in the short term, but all the indications are that a compromise is doable in the form of a bespoke arbitration system rooted in international law (David Davis hinted as much in his appearance on the Andrew Marr show). In practice, any new arbitration panel will rely heavily on established ECJ case law.

Cut-off date: The UK has left the date after which new arrivals will not be guaranteed the right to attain settled status open – between 29 March 2017 (Article 50 day) and 29 March 2019 (Brexit day). This is unlikely to be acceptable to the EU however – given that free movement will continue to apply until the UK formally leaves and, in all probability during the subsequent transitional phase, the EU will argue that denying anyone entering the UK during that time the right to settle entails the creation of two categories of free movement.

Loss of settled status after two years: This will be a big concern for EU nationals who are very mobile in the shortto-medium term, for example if they are sent abroad for work purposes. The UK proposals says that settled status can be retained if the person concerned has “strong ties” to the UK which leaves a lot of scope for interpretation.

Administration fee: The proposal talks of setting a ‘reasonable fee’ to cover the cost of processing the application – however many in the EU will feel that since that Brexit was not a decision taking by EU nationals, they should not therefore be financially penalised for it; it is as much about the principle as the amount.

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Loss of family unification rights: Post-Brexit, family members of EU nationals will no longer be automatically allowed to join them – instead those with settled status will be subject to the same rules that apply to non-EU nationals joining UK nationals, a less generous situation than at present and one which the EU will object to.

However, it is hard to see how the government can back down on this point by maintaining a situation where post-Brexit EU nationals have more rights than UK nationals in this specific area.

Proof of residence: The government has not said what evidence it will accept as proof of five years’ continuous residence (it will do so separately). Although it will use its own existing data where possible, this still leaves a number of questions in particular for people who may not have been economically active or who have no concrete proof of their previous employment.

Deportation of people deemed security risks: The UK says it will exclude anyone deemed to be a “threat to the UK”. In practice, this ought not to apply to too many people but it depends how broadly the UK applies this provision; under current EU law the burden of proof for deportation of EU nationals is very high, so high in fact that even violent crimes are not in of themselves sufficient justification.

Voting rights: Currently EU nationals are allowed to vote in UK local elections – the document says nothing about being allowed to retain this right. Given the low take-up, this is more of a symbolic issue but many in the EU will still be sensitive to the perception of their nationals being disenfranchised. In all likelihood, this is something the UK would concede on if pushed.

With a team of consultants from across the political parties and straddling the EU Referendum divide, Edelman’s Public Affairs team is superbly placed to give you insight, analysis and advice on the Brexit negotiations and on the new Parliament.

For more information or if you think we can help you, please get in touch with our Managing Director Will Walden at Will.Walden@Edelman.com and our Head of Brexit Advice, Lucy Thomas, at Lucy.Thomas@Edelman.com.

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