Brexit Negotiations: The State of Play

Many people in our diocese are worried about the implications of Brexit. The purpose of this blog is to set out where negotiations have got to in regard to Citizens Rights – the area that most affects individual British people living in the EU.

The negotiations have now moved on to phase 2: transition period and future commercial relationship between the UK and the EU. The positive progress in Brexit negotiations on Citizens’ Rights that I reported on last October led to an agreement in principle on all issues before the end of last year. The 58 individual items under discussion now all have a green shading applied (see Citizens’ Rights Technical Note).

Of those issues on which agreement had not been reached back in October the outcome is as follows:

Cut-Off Date

The date after which moving to a new country will no longer qualify you for retained EU freedom of movement rights is set at Brexit Day – 29th March 2019.

Scope of EHIC (European Health Insurance Card)

Those qualifying for retained EU freedom of movement rights will continue to be able to obtain emergency treatment in any EU country under the EHIC scheme and have it reimbursed by the country where they normally receive healthcare. But those leaving the UK to live abroad after Brexit Day (or vice versa) will not necessarily be covered by the scheme. Nonetheless, it is still possible that a more comprehensive coverage of EHIC could be negotiated in phase 2 of the negotiations as part of the future post-Brexit relationship between the UK and the EU.

Time limit of Retained EU Freedom of Movement Rights granted to EU Nationals living in a country other than their own

Those qualifying for retained EU freedom of movement rights at Brexit Day and who have already or go on to live for five years in the country where they resided on Brexit Day will retain the right live and work in that country for life. This right can be forfeited if they absent themselves from that country for more than 5 years. But national governments have discretion not to terminate the rights after such an absence if they so wish.

Scope of right for family members to join someone with retained EU freedom of movement rights

Those qualifying for retained EU freedom of movement rights may obtain the same status for all family members and other dependants living with them on Brexit Day. They will also have the right for the following family members not living with them on Brexit Day to join them later as of right: spouse, direct descendants who are under 21 or otherwise dependant (e.g. students) and dependant direct ascending relatives.

Portability of retained EU Freedom of Movement Rights

For UK citizens normally resident on the continent, on 29th March 2019 the Withdrawal Agreement will only guarantee their retained EU freedom of movement rights for the country in which they are resident on 29th March 2019. Other EU countries may grant them the right to move to them and retain their rights, but that is at the discretion of their national legislation. However, there is a possibility that retention of EU freedom of movement rights may be made more flexible during the phase 2 negotiations of the future relationship between the UK and the EU.

Voting Rights

These have not been included in the scope of the phase 1 agreement.

Role of the European Court of Justice

Disputes in relation to qualification for and exercise of these retained rights for those residing in one of the remaining 27 EU Member States can ultimately be referred to the European Court of Justice in Luxembourg for resolution. In the UK, national courts will decide such cases but they will be mandated to follow the jurisprudence of the ECJ existing at the time of Brexit and will retain the right to apply to the ECJ for a ruling on the interpretation of EU law in respect of individual cases before reaching judgment for eight years after Brexit.

RESUMÉ OF AGREEMENT TERMS ON KEY ISSUES

For those who missed my earlier blog… I recap below the final state of play at the end of the phase 1 negotiations in relation to a set of key issues. These issues were the main areas of concern expressed by diocesan reps. at the diocesan Brexit roundtable meeting that I hosted in Brussels back in January 2017 with UK Ambassador Alison Rose.

Mutual recognition of national insurance contributions for healthcare, pension and benefit entitlement. This would continue for those who have already at some time before 29th March 2019 lived or worked in another country. But those moving to live or work abroad after 29th March 2019 would not necessarily benefit from these provisions.
Actual receipt of healthcare, pensions and benefits (including EHIC) in another country. Only protected for those already resident or working in another country before 29th March 2019.
Moving between EU countries after the cut-off date. At the moment rights are only agreed to be protected in the country in which you are resident or working on 29th March 2019. However, there is a possibility that these rights could be extended to cover moving to another EU country during phase 2 of the negotiations.
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 family members and other dependants living with them on 29th March 2019 irrespective of their nationality and even if they are temporarily resident abroad (e.g. students abroad). Indeed spouses, children (under 21 or otherwise dependant – eg students) and dependant ascending relatives who are not living with the rights holder on 29th March 2019 may join them later and be entitled to the same protected rights. These rights should continue after the cut-off date even if the family members concerned cease to be dependants (e.g. students becoming workers). Children born or adopted after the cut-off date to citizens with protected rights would also be covered by them. New family members (e.g. spouses) seeking to join a citizen with protected rights, however, could only do so on the same basis as under current national immigration laws for non-EU citizens.
Definition of ‘Living in another Country’. The protected rights under discussion would only take effect on a permanent basis for 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 (e.g. 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, a continuous absence from the country concerned of more than 5 years could result in a loss of status (but the national government concerned could decide, at its own discretion, not to insist on this).
Enforcement of Protected Rights. For UK citizens resident in the remaining 27 EU Member States who have disputes with national authorities as to whether they qualify for these protected rights, settled access to the European Court of Justice would remain open. For EU citizens living in the UK such disputes would be referred to national courts, but with a mandate that they should follow the jurisprudence of the ECJ as established by 29th March 2019, and with an option to refer to the ECJ for an interpretative ruling on the application of EU law in particular cases for eight years after Brexit.

Note Well: I must as before give a strong health warning. EU Treaty negotiations work on the principle that ‘nothing is finally agreed until everything is agreed’ – so if we do end up with a ‘no deal’ scenario these agreed terms cannot be relied upon.


The Citizens’ Rights Technical Note & a Q&A produced by the EU, which may help people understand how the rules would apply in practice, have been included under the ‘Talks & Addresses’ Section of this blogsite, here.

**Addition: Since the publication of this blog post, the European Council has agreed negotiating directives which set out the position which will be adopted by the EU between now & the end of 2020. The Directives can be read here, and are also included under the ‘Talks & Addresses’ Section of this blogsite.

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