Free movement, one of the pillars of the EU, was a key issue in the EU referendum. However, Leave campaigners promised that nothing would change for EU27/European Economic Area (EEA) citizens living in the UK, or Britons living elsewhere in the EU. Their rights and legal status are one issue here, but Brexit will also impact on people’s identities and sense of belonging.
What is the current situation?
The migration and settlement of EU (and EEA) citizens within the EEA is guaranteed by the EU’s freedom of movement directive the right to reside and work in another EU member state—and supported by reciprocal access to social entitlements. Currently this makes European citizens an exception to the broader systems of managed migration across the EU.
However, Brexit means that the rights and future status of EU nationals resident in the United Kingdom, and British nationals living and working in the EU27, need to be renegotiated. The EU has made the status of EU citizens one of the three issues on which ‘sufficient progress’ needs to be made before the European Council will authorise the start of talks on a trade deal. While there is agreement that the legal status of these populations needs to be resolved, the two sides diverge on several issues. While the EU is keen to preserve the status quo for EU nationals residing in Britain and Britons in the EU27, the UK is more inclined to adopt a system resembling that used for regulating the movement and settlement of third country nationals, as confirmed in a leaked Home Office report recently.
What has the British government indicated it wants?
The British government’s latest position paper introduces the notion of ‘settled status’, a transitional measure intended to help secure continuity for EU nationals settled in the UK. For the vast majority, this would provide a clear path to permanent residence, with most but not all existing rights preserved. However, there remain questions about who would be eligible for this and whether the most vulnerable, such as those out of work or retired, will be excluded. Such citizens look likely to lose some current rights, for example to be joined in the UK by other family members in future. By contrast, the EU proposes that those who have moved should have all existing rights relating to free movement guaranteed in perpetuity.
It is also necessary to determine how these rights and entitlements will be administered and how potential disagreements will be resolved, with the EU seeking, and the UK rejecting, a continuing role for the European Court of Justice (ECJ). Both sides expect that whatever arrangements are agreed will be reciprocal.
What are the possible outcomes?
Despite the Home Office mistakenly sending up to 100 letters to EU citizens telling them to leave the UK or face removal, mass deportations seem improbable. However, if the Article 50 talks break down entirely, those affected might find themselves in a prolonged legal limbo. More likely is that an agreement will be reached under which they will be granted rights of residence and most, but not all, accompanying rights.
The terms under which such rights would be granted, while more generous than those currently accorded to resident third country nationals, may vary significantly depending on an individual’s access to resources, income, and ability to provide evidence in respect to their residence and other requirements.
This would mean a shift from a system which guarantees equal rights and entitlements for EU citizens living in the UK and Britons in the EU27, on a quasi universal basis and with a very low level of bureaucratic burden, to one that will require individuals to prove proactively their rights and entitlements to reside, a system inevitably much more bureaucratically burdensome. In such a scenario, those most vulnerable are often those most likely to fall short of the requirements demanded for legal residence.
What are the potential consequences of these outcomes?
At the level of the individual migrant, this is likely to have immediate consequences for their ability and desire to remain in the country of residence. In the case of British populations living in the EU27, there is some evidence of return migration brought on by Brexit. Similarly, recent quarterly data from the Office for National Statistics (ONS) suggests that fewer EU nationals are moving to the UK (19,000), and that some of those living and working in the UK have decided to return to their country of origin or to move elsewhere in the EU (33,000).
These trends are likely to continue; whether they accelerate depends very much on the progress and outcome of the talks. Early findings from our research show that people are weighing the options and looking closely to the daily reports on the talks. We have also witnessed a significant rise in the number of EU nationals in the UK and British nationals in the EU27 applying for residency permits and for citizenship. In the first quarter of 2017, applications for British citizenship grew steadily, particularly among EU14 (e.g. Germany, Italy, France) nationals. Applications for dual nationality, in EU27 countries that permit it, are also rising; for example, according to figures from the National Institute of Statistics and Economic Studies (INSEE), in France applications for 2016 were at 254% on the previous year.
However, such applications are often costly and bureaucratically complex, and not always successful. The longer-term consequences will depend upon the eventual agreement. However, the protracted period of uncertainty on their legal status, is already forcing people to rethink their plans and creating high levels of anxiety among those affected. 40 years of EU membership means that families stretch over borders and children are born in mixed-nationality households; for them, a rapid and drastic change in the mobility regimes inevitably will produce consequences on a practical, personal and emotional level.
What is the potential timeline for this?
The hope for an agreement being reached within the next round of negotiations is getting thinner. Even if this is the case, any agreement will not come into effect until withdrawal. However, migration decisions will not wait that long and people will make decisions on the basis not just of the terms of the agreement, but the general political climate around the Brexit process. The implementation of a new system will be expensive and time consuming, and given the size of the populations involved, will require considerable administrative resources. With some 3 million EU nationals resident in the United Kingdom, this will place a considerable burden on an already over-stretched Home Office.
• Professor Tamara Hervey and Sarah McCloskey on the legal status of Britons living in the EU27
• Jonathan Portes on the government’s proposals re: free movement
• Joint technical statement comparing the UK and EU’s positions on Citizens’ Rights
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