BREXIT and EU Citizens’ Right – What does ‘Sufficient Progress’ mean in practice?

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The Prime Minister is in Brussels today for a meeting of the European Council. The Council consists of the heads of state and government of all EU member states (currently EU28 and soon to be EU27 following Brexit).

The joint report released on 8th December 2017 by the negotiators for the European Union and the British Government set out the agreed position in respect of the future rights of the three million EU citizens in the UK and the one million British citizens residing in the EU. It also set out the framework agreement in respect of the Brexit financial settlement and the Irish border. Resolution of these three contentious topics constitutes “Phase One” of the Brexit negotiation process.

The President of the European Council, Donald Tusk, has recommended to the Council that sufficient progress has been made on Phase One of the Brexit negotiations to enable the parties to progress to Phase Two in early 2018. The European Council will now decide whether Britain can move to the second phase of the process which will focus on transitional arrangements and, more importantly, the UK’s future trading relationship with the EU.

Citizens’ Rights

The objective of the agreement is to provide reciprocal protection for EU and UK citizens to enable the continued exercise of rights derived from EU law up to a “cut-off” date (also referred to as the “specified date”).  The specified date will be 29th March 2019, being the date of UK’s exit from the EU following the two-year Article 50 notice period.

We set out below a brief summary of the agreed position in respect of Citizens Rights. The summary is non-exhaustive and still to be agreed by the European Council. Furthermore the caveat that “nothing is agreed until everything is agreed” applies to all aspects of the Brexit negotiations until a Withdrawal Agreement is ratified, presumably in the beginning of 2019.

* EU citizens, and their family members, remain eligible to apply for permanent residence (“PR”) after five years in the UK exercising a treaty right. This eligibility will continue up to the specified date.

* The UK Government will introduce a new process of application for “settlement” in the UK for qualifying EU nationals.  Settled status, equivalent to indefinite leave to remain, is granted under UK domestic law, whereas PR is concept of EU law.

* EU nationals who enter the UK prior to the specified date in exercise of a treaty right (as a worker, student, self-sufficient or self-employed person) will be permitted to remain in the UK and exercise that right beyond the specified date and remain for five years in order to obtain settled status regardless of the transitional period.

* There will be a two year transitional period between 29th March 2019 and 29th March 2021 during which time EU nationals will continue to be eligible to enter the UK freely and exercise a “treaty right”.  There will however be an obligation on them to register their status here.

* Those EU nationals who entered the UK after the specified date will be permitted to remain in the registered status for a maximum period of two years.  Thereafter, they will be required to apply to remain under new domestic immigration rules, as yet undefined.

* The administrative procedures for applications for settled status or registration will be “transparent, smooth and streamlined”. The UK Government has already indicated that it hopes to introduce a digital system that will be “light touch” and reliant on existing government data (such as HMRC records etc.)

* It is foreseen that application forms will be short, simple and user friendly and a principle of “evidential flexibility” will apply.

* The more generous EU law provisions on the impact of criminality and conduct will be applied with regard to any conduct which predates the specified date.  EU nationals who hold a document confirming they have PR in the UK will be required to convert this into a settled status document.  This will have to be done before the end of the two-year transitional period.  EU nationals with settled status who leave the UK will lose the status if they are absent for a period of five years or more.  This is more generous than the current “returning residents rule” whereby settled status is lost after a two-year absence from the UK.

* EU citizens living in the UK before the withdrawal date will be able to rely on EU law to bring family members to the UK after withdrawal, as long as their relationship with that family member existed before the specified date.

* If the relationship post-dates the specified date, national law will apply, so applicants will be required to meet the more onerous requirements of the UK Immigration Rules.

* UK Courts will have regard to decisions of the Court of Justice of the European Union (CJEU) in respect of the exercise of treaty rights after the specified date and there will be a mechanism for the UK Courts to ask the CJEU questions of interpretation for up to eight years after the Withdrawal Agreement comes into effect.

Ireland and Northern Ireland

The agreement emphasises the paramount importance of the Good Friday (Belfast) Agreement which must be protected in all its parts.

* The UK commits to the avoidance of a hard border between Northern Ireland and the Republic of Ireland, including the exclusion of physical infrastructure or related checks and controls.

* The UK also commits to preserve the integrity of its internal market and Northern Ireland’s place within it.

* The UK will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the UK.  The UK remains committed to protecting North-South cooperation and future arrangements will be compatible with those overarching requirements.  In the absence of agreed solutions, the UK will maintain “full alignment” with those rules of the single market and customs union which support North-South co-operation.

The question of the Irish border presented the greatest obstacle to reaching an agreement.  The parties hope that there is sufficient “constructive ambiguity” in the text to enable discussions to move to the next phase and to develop greater clarity on these complex issues over time.

It is worth noting that Irish nationals have a special status in the UK by virtue of the Common Travel Area (“CTA”) that includes Great Britain, Northern Ireland and the Republic of Ireland. The CTA pre-dates either country’s membership of the EU and means that Irish nationals can enter and work in the UK freely regardless of Brexit.

Expat Academy BREXIT and EU Citizens' Right - What does 'Sufficient Progress' mean in practice?

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