Last Friday's announcement by the UK and EU Brexit negotiators provides a great deal of the clarity in respect to the rights of UK citizens in the EU, and EU citizens in the UK post-Brexit.
Subject to the caveat that nothing is agreed until everything is agreed, we now know that:
- EU citizens who reside in the UK and UK citizens who reside in the EU on the date when the UK formally leaves the EU will be entitled to remain in that "host" state post-Brexit, even if they don’t have permanent residence rights by that stage, by obtaining a new form of residence permit, subject to criminal and security checks.
- They will be entitled to have direct family members, using the wider definition of family members under EU rules, join them even if those family members did not reside in the "host" state by the date of exit. However, extended family members, such as unmarried partners, will be assessed in accordance with national provisions. In the case of EU citizens in the UK, this means that their unmarried partners may be subject to tighter financial requirements.
- Individuals who have already obtained permanent residence status can have it converted into a new residence document free of charge, subject to criminal records and other security checks, and confirmation of ongoing residence. In addition, that status can be retained by the individual even if he or she is absent from the "host" state for up to five years. This is substantially longer than the current rules which allow such status to be protected for two years.
- The existing social security framework, where periods of time spent working in one EU country are aggregated with periods spent working in another for the purpose of acquiring the right to benefits such as state pension, will be preserved under the Withdrawal Agreement, in respect of pre-Brexit periods. Similarly, the ability for workers posted from one EU state to another to continue to pay social security in their "home" state in certain circumstances will be preserved for those working under those arrangements on the date of Brexit.
- Northern Irish citizens will retain their right to choose to be Irish or British citizens or both, and those who are Irish citizens will retain their status as EU citizens post-Brexit
Also, perhaps controversially, the Court of Justice of the European Union will continue to have significant influence in the area of citizens' rights post-Brexit. In particular, when considering the rights of EU citizens to live and work in the UK under the Withdrawal Agreement, UK courts will continue to be obliged to have regard to decisions of the CJEU post-Brexit (though only in respect of case law decided up to the date of Brexit). Furthermore, UK courts will continue to have the ability to refer cases to the CJEU where they consider they need the CJEU to interpret the rights of citizens under the withdrawal agreement. That ability will continue for eight years post-Brexit.
UK citizens living and working in the EU and EU citizens living and working in the UK should take much comfort from today's announcement. Although this is subject to an overall Brexit deal being achieved, they should feel reassured that they will continue to have the right to live and work in their "host" country post-Brexit, should they wish.
What remains is, unfortunately, more uncertainty over what the position will be for EU citizens wanting to live and work in the UK (and employers wanting to employ them) post-Brexit. The UK Government has repeatedly stated that there will continue to be a need for skilled EU workers in the UK post-Brexit, and that it will implement new immigration rules as a result. Now that agreement in principle has been reached on the position up to the date of Brexit, we hope that the Government will feel able to explain what rules it intends to put in place for skilled EU workers post-Brexit.