A Position Paper, The United Kingdom’s Exit from The European Union- Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU and a Policy Paper were finally published by the government on 26 June 2017. Both can be found here:
Indicators of what may be contained in the British negotiating stance have been unfolding in bits and pieces over the weeks.
On Thursday 22 June speaking at the end of dinner at an EU leaders’ summit Theresa May gave a brief overview of the British Government’s intentions. May said ““The UK’s position represents a fair and serious offer, and one aimed at giving as much certainty as possible to citizens who have settled in the UK, building careers and lives and contributing so much to our society,” but she was adamant this would be enshrined in UK law and be overseen by “our highly respected courts.” . She said this would offer those who live lawfully in the UK before Brexit the chance to build up the same rights as UK citizens.
Michel Barnier’s twitter response following publication of the documents on Monday was rather less than enthusiastic. He made it clear the EU 27’s goal on citizens’ rights is for the same level of protection as in EU law. He continued:” More ambition, clarity and guarantees needed than in today’s UK position.”
So what exactly are the main points to be gleaned from the 20 page detailed Position Paper which is merely summarised in the Policy Paper? How do they compare and contrast with the 4 page tightly written Working paper “Essential Principles on Citizens’ Rights published by the EU 27 on 24 May 2017? To be read here:
Here are a few bullet points for starters:
- First for the reassurances for current EEA and Irish nationals.
EEA nationals (even though the Position Paper here only mentions EU citizens) will retain the status quo until (and some may say unless!) the date of Britain’s exit from the EU. It is worth quoting the relevant paragraph in full. “until the UK’s exit, while the UK remains a member of the EU, EU citizens resident here will continue to enjoy the rights they have under EU Treaties. We will comply in full with our legal obligations, including in respect of administrative procedures for providing documentation for those exercising Treaty rights”
- Point 5 of the Position Paper seeks to confirm the legal position going into the future of the rights of Irish citizens.
“Our proposals as set out below are without prejudice to Common Travel Area arrangements between the UK and Ireland (and the Crown Dependencies), and the rights of British and Irish citizens in each other’s countries rooted in the Ireland Act 1949.”
The Policy Paper clearly states: “As such, Irish citizens residing in the UK will not need to apply for settled status to protect their entitlements.”
Now for some of the possible pitfalls
- Point 6 is of interest in the context of some of the later text. It makes it clear that the offers are made in the expectation that the “EU will offer reciprocal treatment for UK nationals in its resident states.” This could be a double edged sword, especially when it comes to looking at rights of family members and trying to withdraw from jurisdiction of European Court of Justice (ECJ). In these instances reciprocal treatment may severely limit British Citizens’ present rights in the EU 27 States in the future.
- The Position paper continues that “we will create new rights in UK law for qualifying EU citizens resident here before our exit. Those rights will be enforceable in the UK legal system.” It promises that the commitments in the Withdrawal Agreement will have the status of international law. At the same time making it clear. “The Court of Justice of the European Union (CJEU) will not have jurisdiction in the UK;”
It begs more question than answers
1 Just how is this going to work?
Who is going to adjudicate any “International Law” issues or disputes that may be brought under this section if it is not the ECJ? Would the British tabloid press be happy with, let us say Bulgarian, Hungary or Serbia’s courts’ ruling on British citizen’s rights in this context in view of these countries rather dubious record on the legality of their treatment of refugees in international law?
2 Just who is a “qualifying EU citizen?
I found eight references to “qualifying EU citizen” in the Brave New post Brexit vision with only this definition provided for what this will mean in the future:
“To qualify, the EU citizen must have been resident in the UK before a specified date and must have completed a period of five years’ continuous residence in the UK before they apply for settled status, at which point they must still be resident;” This does not settle anything but merely leads to questions 3 & 4:
3 What is meant by resident exactly? Is the definition going to alude to the concept of “ordinarily resident” which according to the government’s own website gives it the following interpretation?
‘Ordinary residence’ has not been defined in any Act of Parliament. The leading case in this area is R-v- Barnet LBC ex parte Shah  1 All ER 226. The concept was held by the House of Lords to imply the following:
- Ordinary residence is established if there is a regular habitual mode of life in a particular place “for the time being”, “whether of short of short or long duration”, the continuity of which has persisted apart from temporary or occasional absences. The only provisos are that the residence must be voluntary and adopted for “a settled purpose”.
- A person can be ordinarily resident in more than one country at the same time. (Lord Scarman described this as “an important factor distinguishing ordinary residence from domicile”.)
- Ordinary residence is proven more by evidence of matters capable of objective proof than by evidence as to state of mind.
4 Then again what is the specified date?
Well we find illumination on this question referred to at the penultimate bullet point of point 6 where it says:
“the specified date will be no earlier than the 29 March 2017, the date the formal Article 50 process for exiting the EU was triggered, and no later than the date of the UK’s withdrawal from the EU. We expect to discuss the specified date with our European partners as part of delivering a reciprocal deal;”
So we are no the wiser although it looks as though the Government is contemplating possible retrospective legislation. Can this be real?
5 There is a second question relating to “resident”; will that person have to be a present “qualified person” under current EU law and also resident here?
In the glossary at the end there is one more reference to a ‘qualifying person’ under current EU law. In the definition of Permanent Residence it says:
“Permanent residence: Under EU law, permanent residence is the right to live permanently in
the UK. This right can be gained by European Economic Area (EEA) and Swiss nationals and
their family members. Permanent residence is automatically gained when an EEA or Swiss
national has lived legally in the UK for, in most cases, five years as a ‘qualifying person’ under
the Immigration (EEA) Regulations 2016. This means they have been exercising their Treaty
rights, for example, through working or studying.”
This definition forgets to mention self- employed or self-sufficient but the Position Paper does go on to say Comprehensive Sickness Insurance Certificates will not be required to meet the criteria, which currently is the case for self-sufficient and student people courtesy of Directive 2004-38 of the European Parliament.
This now calls for further details.
6 How Permanent is Permanent for people with existing Permanent Residence (PR) status? I mean Permanent has its definitions.
Definitions of Permanent:
“Lasting or intended to last or remain unchanged indefinitely”
“Lasting or continuing without interruption”
“continuing or enduring without fundamental or marked change”
What the Position Paper says at Point 10 is “10. There is no need for EU citizens to apply now for EU documentation under the free movement rules to prove they are exercising Treaty rights or have a current right of permanent residence in order to secure their status post-exit. Nor will they need to apply for their new British settled status before our exit. However, we are planning to set up an application process before we leave the EU to enable those who wish to do so to get their new status at their earliest convenience. For those who have already obtained a certificate of their permanent residence, we will seek to make sure that the application process for settled status is as streamlined as possible.”
How does this fit in with the concept of introducing retrospective legislation in particular relating to all those EEA citizens who already have PR and those with the certificates to prove it?
Finally the whole Position paper only references the EU. It makes the following comment at point 11.
“11. We will discuss similar arrangements with Iceland, Liechtenstein, Norway and Switzerland (the European Free Trade Association (EFTA) States) on a reciprocal basis.”
Compare and contrast the clear, already well defined, Essential Principles of Citizens’ Right submitted by the EU 27 outlining their bargaining position:
“I. General principles:
The following general principles should apply in accordance with Union law, as interpreted by the Court of Justice of the European Union at the date of entry into force of the Withdrawal Agreement [including also interpretations given in cases pending on the date of withdrawal for which the Court’s competence is maintained pursuant to the Withdrawal Agreement]:
(1) Same level of protection as set out in Union law at the date of withdrawal of EU27 citizens in the UK and of UK nationals in EU27 including the right to acquire permanent residence after a continuous period of five years of legal residence;
(2) Equal treatment in the UK of EU27 citizens as compared to UK nationals, and in EU27 of UK nationals as compared to EU27 citizens, in accordance with Union law;
(3) Equal treatment amongst EU27 citizens by and in the UK in all matters covered by the Withdrawal Agreement, without prejudice to Common Travel Area arrangements between the UK and Ireland;
(4) EU27 citizens or UK nationals who resided legally respectively in the UK or EU27 at the date of entry into force of the Withdrawal Agreement should be considered legally resident even if they do not hold a residence document evidencing that right. Documents to be issued in relation to these rights should have a declaratory nature and be issued either free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents;
(5) All citizens’ rights set out in the Withdrawal Agreement should be granted as directly enforceable vested rights in both the UK and in EU27 as specified in Section IV.”
With such unambiguous aims it is no wonder they could express everything in a mere 4 pages and still leave nothing out.
To follow: How does this impact on family members and UK Citizens’ ability to take non EEA partners and family members to other EEA countries in the future?
What happens to EEA national with PR who cannot meet the Minimum Income Threshold?