Contrary to the impression given in many sections of the press, I am very happy to report that there is steady positive progress behind the scenes in the Brexit negotiations in Brussels. This is particularly the case in relation to preserving the rights of UK and EU citizens currently living or working in a country different from their own who were the main subject of concern at the diocesan Brexit roundtable meeting that I hosted in Brussels back in January with then Brexit Minister Lord Bridges joining us by video link. When the 4th round of negotiations in technical working groups finished at the end of September 60 individual items in relation to citizens’ rights that will need to go into the mutually binding UK-EU Withdrawal Treaty were listed. Of these 65% had already been the subject of agreement in principle, 17% were awaiting clarification of the position of the two sides or have been referred up for consideration at a higher level and for the final 18% disagreement still remains to be resolved. Looking at the issues raised in January the current state of play is as follows:-
- Mutual recognition of national insurance contributions for healthcare, pension and benefit entitlement. This would continue for those who have already at some time before a mutually agreed cut-off date (no later than 29th March 2019) lived or worked in another country. But those moving to live or work abroad after the cut-off date would not necessarily benefit from these provisions. The actual cut-off date is in the 18% of items not yet agreed.
- Actual receipt of healthcare, pensions and benefits in another country. Only protected for those already resident or working in another country before the cut-off date. The possibility of continued British membership of the EU Health Insurance Card (EHIC) system for incidental holiday or business travel, especially for those who have not previously lived or worked in another country is still under negotiation.
- Moving between EU countries after the cut-off date and taking protected rights with you is not yet agreed. At the moment rights are only agreed to be protected in the country in which you are resident or working at the cut-off date. The UK wishes the rights to be extended to cover moving to another EU country, whereas the EU is currently not accepting that position.
- Annual Uprating of Pensions. The UK offered unilaterally at the outset to continue to uprate annually pensions paid to UK citizens’ resident on the Continent by the cut-off date. The EU side has now agreed that the same should apply to EU citizens receiving pensions from their home countries in the UK before the cut-off date.
- Rights of family members The protected rights of citizens living in another country by the cut-off date are also to apply to dependant family members, irrespective of their nationality and even if they are temporarily resident abroad (eg students abroad). These rights should continue after the cut-off date even if the family members concerned cease to be dependants (eg students becoming workers). Children born after the cut-off date to citizens with protected rights would also be covered by them. Certain non-dependant family members may also be eligible but only if they are resident in the country concerned at the cut-off date. The right of new family members (eg spouses) to join citizens with protected rights in a country of which they are not a citizen is currently under dispute. The EU would like them to be admitted on the same basis as family members already with the citizen before the cut-off date whereas the UK wants to be able to restrict their access on the same basis as current UK immigration laws for non-EU citizens.
- Voting Rights. The UK would like the current right of citizens living in another country to vote in local elections there to continue. The EU currently wants to leave it at the discretion of individual EU Member States as to whether to continue to grant resident UK citizens this right. Rights of citizens living in another country to continue to vote in elections in their home country have not been covered by these discussions.
- Definition of ‘Living in another Country’. The protected rights under discussion would only immediately apply on a permanent basis to citizens who have completed 5 years continuous residence by the cut-off date. Those with a shorter period of residence before the cut-off date would enjoy these rights on a temporary residence basis until five years residence has been completed. Absence of up to six months in any one year or 12 months for an important reason (eg childbirth) would not count as a break in continuous residence. Also those reaching the age of retirement or having to retire on the grounds of incapacity before reaching five years continuous residence would qualify for permanent residence status from that point. However, even after permanent residence status has been granted an absence from the country concerned of more than 2 years could result in a loss of status. Currently the UK is offering to give qualifying EU citizens the right of return in perpetuity if they have an extended absence, but only if the EU will grant qualifying UK citizens to right to take their protected rights with them from one EU country to another.
- Enforcement of Protected Rights At present the mechanism for citizens to have disputes with national authorities as to whether they qualify for these protected rights settled has yet to be agreed. The EU wishes for there to be continuing access to the European Court of Justice for EU citizens resident in the UK. From the UK side there is an offer for the Withdrawal Treaty to be written into UK law and for the British Courts to be encouraged or mandated to take into account the case law of the ECJ in decisions on citizens’ rights under the Withdrawal Treaty.
However, I must give a strong health warning that EU Treaty negotiations work on the principle that nothing is finally agreed until everything is agreed. Phase one of the negotiations also includes the border situation in Ireland post-Brexit and the so-called ‘divorce bill’ to settle outstanding financial liabilities, where progress is not as good as it is on citizens’ rights. It is only when progress on all three topics is considered to be satisfactory by EU leaders (their first opportunity to make this decision would be at the Summit scheduled for 19/20 October) that discussion can open on other issues, principally the possibility of an implementation or transition period after Brexit when the UK’s economic relationship with the EU would remain substantially unchanged, and the negotiation of a new permanent economic relationship to kick in after the transition period.
Special Note regarding Gibraltar: At present Gibraltarians count as UK citizens for the purposes of EU law (even though Gibraltar is not part of the UK). It is HMG’s intention that this citizenship definition should carry over into the Withdrawal Treaty, although final confirmation of the status of UK citizens post-Brexit will only be possible once the negotiation is complete.