The proposals made on Monday by the UK to copperfasten residency rights of three million EU citizens in the UK after Brexit, and those of UK citizens in EU states, correspond in broad outline to those made by the EU in this regard a couple of weeks ago.
The permanent right to reside will be extended to all those, and their families, who can establish they have lived in either jurisdiction for five years, and each side commits to preserving all current entitlements enjoyed – from pensions and welfare to student grants and professional qualification recognition. All the rights enjoyed by UK citizens except that to vote.
That will provide considerable reassurance to most of those EU citizens now living in the UK and for whom the last year has been one of considerable uncertainty about their futures. The rights of those who have arrived most recently or those who may arrive between now and Brexit are ambiguous. And the paper insists that all concessions are subject to reciprocation being agreed in respect of the rights of the 1.25 million UK citizens in EU states.
Critical differences remain, however, which will form the basis of difficult discussions between the two Brexit negotiating teams – the UK is adamant that it will not accept a role for the European Court of Justice in safeguarding the rights of EU citizens in its jurisdiction, and its proposals leave wide open the issue of the cut-off date for the new rights.
“Rights will be enforceable in the UK legal system and will provide legal guarantees for these EU citizens. Furthermore, we are also ready to make commitments in the withdrawal agreement which will have the status of international law. The Court of Justice of the European Union (CJEU) will not have jurisdiction in the UK,” the UK paper says.
Withdrawal agreement
The EU negotiators are adamant that its citizens should be able to continue to move freely to the UK, and have treaty rights to do so, until the UK actually leaves the union – in effect when the withdrawal agreement takes effect at the end of March 2019.
The UK paper suggests that the cut-off might be any date between the triggering of article 50 in March 2017 – already passed – and 2019. In other words, that some newly arrived citizens may already have lost their possibility of acquiring an automatic right to stay.
Uniquely the UK proposal provides for a “grace period” of two years during which time EU citizens resident in the UK for less than five years may establish their residency. It is likely to be acceptable to the EU negotiators, and reciprocated, and may provide a means by which the UK can finesse the politically difficult issue of free movement in the likely transition period after Brexit in March 2019 but before the full withdrawal agreement becomes operative.
In effect it is a commitment to a form of free movement, which the EU will certainly demand in the transitional period in return for continued access to the single market, without being called it.
The UK paper also makes clear that Irish citizens, currently covered by Common Travel Area agreement which they hope to sustain, will be unaffected. “Irish citizens residing in the UK will not need to apply for settled status to protect their entitlements,” the paper says.