United Kingdom – Brexit Negotiations: Latest on the Rights of European Economic Area Nationals

What has changed
Following the fourth round of Brexit negotiations, the Home Office has published a summary of the European Union (EU) and United Kingdom (UK) positions on citizens’ rights. The document details the progress made to date as well as the main bones of contention to be dealt with in the next round of talks, which is due to commence on 9 October 2017.

The current positions of the parties are summarized in the What to Expect section below.

 Who is affected?

  • European Economic Area (EEA) nationals living in the UK
  • Family members of EEA nationals living in the UK
  • Companies employing EEA nationals and family members of EEA nationals in the UK
  • UK nationals living in the EU

WhatToExpectWhat to expect

The current positions of the parties are summarised below.

Permanent residence status
A few months ago, the UK government announced plans to introduce a new scheme requiring all EEA nationals, including those with permanent residence cards, to apply to the Home Office for new residence documentation. For those with permanent residence, the UK government is now proposing a simplified application process which will entail verification of ID, a criminality check, and confirmation of ongoing residence.

The EU, however, is against these proposals and continues to maintain that the UK should not be asking EEA nationals with permanent residency status to apply for residence documentation. It remains to be seen whether any consensus will be reached on the issue in the coming weeks.

Family members of EEA nationals
Both parties are in agreement that those family members who are lawfully resident in the UK before the cut-off date (the date itself is yet to be set) will not be affected by Brexit.
There is, however, some uncertainty as to the rights of family members who enter the UK after the cut-off date. The EU officials are insisting that these individuals should have the same rights as the family members who entered before the cut-off date; the UK’s position, on the other hand, is that they should be subject to the requirements applicable to family members of the UK citizens.

Monitoring UK’s compliance and enforcement of rights
Ensuring that the UK is compliant with the terms of the Withdrawal Agreement is a major concern for the EU, which has proposed that the European Commission should monitor compliance post-Brexit. This is not something the UK Government is willing to accept. They are, however, comfortable with the idea of establishing an independent monitoring arrangement in the UK.
At present the UK courts are required to take the jurisprudence of the Court of Justice of the EU (CJEU) into account when considering matters relating to EU law.
The EU officials are arguing that the jurisdiction of the Luxembourg court should continue in the UK post-Brexit. While the UK now accepts that both existing and future CJEU case-law will continue to be taken into account by the British courts, they insist that enforcement should nevertheless be handled by domestic courts.

Free movement for UK expats in exchange for indefinite right of return for EEA nationals
When it comes to the rights of British expats living in Europe, the EU’s position is that they will only be protected in the member state in which they have residence rights as at the date of withdrawal. The UK would like to see the free movement rights of these British nationals continue post-Brexit. In its bid to preserve these rights, the UK is prepared to guarantee indefinite right of return to those EEA nationals who spent more than two (2) years outside of the UK after acquiring permanent residence here. At present, the right of permanent residence is lost through absence from the UK for a period exceeding two (2) years.
Emigra Worldwide is closely following the Brexit negotiations as they unfold and will bring you further updates in due course.

What you need to do

Planning ahead

  • Emigra consultants will be happy to answer questions regarding the likely implications of the proposals made by the EU and UK government for EEA nationals and their family members traveling to the UK, as well as businesses employing such workers or intending to employ them in the future.
  • Contact our Country Manager for the UK Nira Segaran or your Emigra Worldwide attorney or representative for further details on how these updates may impact you or your client.