Protecting EU and British Citizens Beyond Brexit: Mind the Gap

This article looks at the protection that the EU-UK Withdrawal Agreement offers these citizens and how this protection works in practice, including which steps the UK Government has taken so far to safeguard the rights of EU citizens in the UK. It also looks at what the remaining EU Member States and the European Commission have done to ensure the protection of British citizens’ rights in the EU.

The article makes clear that significant issues have been reported in relation to the protection of the EU citizens’ rights in the UK while the situation in the EU states varies depending on the model that these states adopted for verifying the British citizens’ status. The procedures that British citizens should follow therefore differ depending on the EU Member State that they are in.

Page Contents

• Overview on Protecting EU and British Citizens Beyond Brexit
• The end of citizens’ free movement rights
• What are the rights of EU citizens in the UK and British citizens in the EU?
• Scope of the protection
• Verification and enforcement of the protection
• What is happening in practice in the UK to protect EU citizens’ rights?
• Issues and Confusion Surrounding EU Citizens’ Rights and Settled Status in the UK
• What can EU citizens in the UK do?
• What is happening in practice in the EU Member States to protect UK citizens’ rights?
• What can British citizens in an EU Member State do?
• How Can Total Law Help?

On 31 December 2020, the Brexit transition period ended and the UK left the EU’s internal market ending free movement of persons between the EU and the UK. This freedom of movement is one of the foundations of the EU. What began, in the 1957 EEC Treaty, as free movement of workers and freedom of establishment, and was therefore a right enjoyed by individuals as employees or service providers, has developed into a citizenship that every EU Member State national automatically enjoys. This EU citizenship underpins the right of people to move and reside freely within the territory of the EU Member States.

The European Parliament regards the right to free movement as a core principle of the EU calling it a “fundamental right”.

What does this mean in practice? Judge Ian Forrester summarised this eloquently in a lecture at the University of Glasgow in November 2016: “For 43 years British citizens have been able to assume that they enjoyed significant rights in the other nations of the European Community and latterly EU.

As of today, that includes the right to go abroad to seek a job, to accept a job, to open a business, to hire staff, to engage in trade, to offer services, to go to hospital for treatment, to receive national treatment (not better, not worse than local nationals), to be spared discrimination based on foreign-ness, to bring along the family, to see children educated, and in due course to receive a pension on favourable administrative terms.”

It is clear that the right to free movement is a broad right (although not without limitations). Even those UK citizens who did not choose to go and live in another EU Member State benefited from this right as it gave them an automatic right of admission to another EU Member State.

This meant that they could travel anywhere in the EU simply presenting their passport. Border control officials could only check that the document presented was valid and belonged to the person presenting it. They could not ask the person their reason for travelling or ultimate destination. That has all changed.

Before the global pandemic hit, many British citizens travelled to Spain, France or another EU Member States for their annual holidays. But a substantial number of British citizens chose to make use of their freedom of movement rights to move to the EU to live, work or study there (more) permanently. Equally, many EU citizens used these rights to move to the UK when the UK was still an EU Member State.

The European Commission has said that “many EU citizens and UK nationals moved abroad to live, work or study, back when the UK was a Member State of the EU.” Protecting those who moved abroad was therefore “the first priority from the beginning of the negotiations” in relation to the UK’s withdrawal.

In the 2019 EU-UK Withdrawal Agreement, the EU and the UK agreed a framework for the continued legal residence (and associated rights, such as to social security and healthcare) of British and EU citizens’ that had moved to an EU state/the UK, respectively, on or before 31 December 2020 (the end of the transition period) and staying there afterwards.

The rights in the Withdrawal Agreement are very similar to the post-Brexit rights but not identical. For example, the Withdrawal Agreement does not give the protected group of British citizens onward free movement rights throughout the rest of the EU. They only enjoy the “Withdrawal Agreement rights” in their country of residence. For other EU countries, these “protected British citizens” are subject to the same visa requirements as other British citizens.

The Withdrawal Agreement framework also does NOT apply to British/EU citizens who moved to an EU state/the UK, respectively, after 31 December 2020 (in the so-called post-transition period). This is because the UK Government did not propose extensive free movement of mobility-related arrangements during the negotiations with the EU about the future relationship (as of 1 January 2021).

After this date, the movement of citizens across the EU-UK border is governed by immigration rules of the UK and each of the remaining EU Member States rather than EU free movement rules. This means, for example, that British citizens who want to move to an EU Member State (one of the EU’s 26 Schengen countries to be precise) after 1 January 2021 and stay there for longer than 90 days in total (within any six-month period) will require a visa issued by that particular State.

The 2020 Trade and Cooperation Agreement, which governs the EU-UK relationship as of 1 January 2021, includes some limited provisions to facilitate business travel for certain specified purposes only.

For verifying a person’s rights under the Withdrawal Agreement, it allows the UK and the remaining EU Member States to adopt either a declaratory or a constitutive system.

In a declaratory system, the EU/UK residents are not required to make an application to have the rights guaranteed under the Withdrawal Agreement. In a constitutive system, however, these residents must successfully apply for a new residence status to enjoy the Withdrawal Agreement rights.

The UK and 13 EU Member States have chosen to adopt constitutive systems while the other (14) EU Member States apply a declaratory system. This means that the protection of the Withdrawal Agreement is not automatic in the UK or in those EU countries that have opted for a constitutive system. The procedures (and related deadlines) that UK nationals should follow therefore differ depending on the EU Member State that they want to continue to reside in.

UK nationals (in the courts of the EU Member States) and EU citizens (in British courts) can rely directly on the provisions of the Withdrawal Agreement on citizens’ rights. Any national laws that are not consistent with these provisions have to be dis-applied.

The Withdrawal Agreement also requires that an independent authority monitors the implementation and the application of these rights for EU citizens in the UK. This authority must have the power to conduct inquiries about possible breaches and receive complaints but also the right to bring a legal action before a competent UK court or tribunal.

Some issues have also been reported in relation to the equal treatment of EU citizens in the lead up to the application deadline, including EU citizens being wrongfully asked to provide right to remain documents when applying for jobs and renting property.

More on this in the IAS blog post, Confusion Surrounding Settled Status Rules, which says that “Although the UK has now formally left the EU, citizens of the EU do not need to provide evidence of Settled Status until after the Settlement Scheme deadline of 30 June 2021”.

Linked to this is the issue of the Government’s refusal to provide physical, rather than digital, proof of citizens’ settled or pre-settled status. The Institute for Government was one of the many organisations that reported on the issue in November last year saying that: “EU citizens with settled status have expressed repeated concerns that they have to rely only on “digital” proof of status.

A recent select committee report has recommended the government should reconsider providing physical proof. The government also rejected Lords amendments which would have provided this. It is easy to understand why EU citizens are nervous. The UK immigration system depends on third parties – employers, landlords and service providers – to apply controls”.

There has also been confusion over whether citizens with pre-settled status enjoy the same rights to welfare benefits, such as universal credit and housing benefit, as those with settled status. The UK’s Court of Appeal ruled, in December 2020, that those with pre-settled status must be treated on an equal basis with other claimants. The Secretary of State was, however, granted permission to appeal and the UK’s Supreme Court is scheduled to hear the appeal on 18 and 19 May 2021.

EU citizens who believe that they have not been treated fairly can report a complaint online with the Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA). This is the independent authority that the UK Government set up to comply with its Withdrawal Agreement obligation (see above).

EU citizens could also respond to an initial survey that the IMA ran to understand the level of concern of European nationals about living in the UK after Brexit. The survey asked about life after Brexit, including awareness of the EU Settlement Scheme, and confidence that public bodies will uphold rights and ensure equal treatment. It also checked initial awareness of the IMA to help it ensure EU citizens can access its services.

One of the issues that the IMA should focus on is the impact of lack of physical proof of status. Following the Windrush scandal, it is hard to believe why the Government continues to reject calls to reconsider providing physical proof.

Finally, EU citizens can have recourse to UK courts if they believe their rights have been violated.

EU Member States currently estimate that there are more than 850,000 British citizens residing in the EU (most in Spain, France, Ireland, Germany and the Netherlands). The requirements for the British citizens who want to continue to reside in the EU vary from country to country.

In those EU Member States that have adopted a declaratory system (including Spain, Germany, Greece, Italy, Cyprus and Portugal), British nationals and their family members have automatically acquired a new residence status (provided they were in that state before the end of the transition period).

They may, however, have to make an application to the national authorities under the national residence scheme to have their new status certified/documented. Importantly, however, this is not a legal precondition for their continued residence in the host EU state.

The new residence document is physical and should assist the British nationals to prove their residence status to the national authorities or police, but also, for example, to employers, banks, and landlords. But a failure to acquire this document does not mean that the British national loses his or her residence status.

For those UK nationals that have been living, and want to continue to live, in an EU Member State that has adopted a constitutive regime (for example France, Malta and the Netherlands), it will be necessary to follow the procedure of that particular state to apply for a new residence status and, if successful, they will enjoy the Withdrawal Agreement rights.

Those British citizens that do not apply, or whose application is unsuccessful, will have to leave the EU Member State and return to the UK. If they do not, they will be undocumented immigrants and could be fined or face an expulsion order.

A specialised Committee on Citizens’ Rights, which was established under the Withdrawal Agreement, has so far published 2 reports on the implementation of residence rights under the agreement. The reports, which are available on the European Commission website, detail the administrative procedures, communication and outreach arrangements that each EU Member State has taken to implement the citizens’ rights provisions.

This Specialised Committee will continue to prepare and publish joint reports every three months, until the expiry of the last deadline for applications for a new residence status in countries that have opted for a constitutive system.

The European Commission monitors the implementation and application of citizens’ rights under the Withdrawal Agreement in the EU. An overview of the systems in the various EU Member States with links to national information websites for UK nationals and their family members is available on its website.

The European Commission has also published Q&A guidance for British citizens. Guidance for British citizens in the EU is also available on the “Your Europe” website and there are advocate organisations in some EU countries, such as Bremain in Spain, that also offer useful resources and practical advice.

If a British citizen believes that their rights under the Withdrawal Agreement have been violated, the European Commission’s Q&A says that the first step should be explaining the complaint to the national authority that they believe made the error and asking it to remedy the problem. If this does not help, the British citizen can ask domestic courts to examine their case. They can, however, also report the breach of their rights to the European Commission.