Even the Leave campaign during the referendum promised that EU citizens residing in the UK would be able to stay and live their lives with the same rights as today if the UK left the EU.
Presenting the draft Withdrawal Agreement, both the UK and the EU have made repeated declarations that the legal framework is now in place to guarantee these rights. However, the Withdrawal Agreement does not guarantee all current rights and, increasingly, it is in doubt whether it will even be signed.
While there is increasing debate on the social and economic nightmare scenario of a no deal Brexit, the specific challenges for EU citizens have received little attention.
I set out here six Brexit scenarios, posing different challenges and uncertainty for EU citizens. It shows that EU citizens are far from a situation that allows them to rest comfortably.
Scenario 1: The Withdrawal Agreement is signed
This is the most discussed scenario. However, despite what the negotiators claim, it does not guarantee all EU citizens in the UK would be able to get on with their lives as previously.
At best, EU citizens will receive an inferior status to what they hold now, particularly with reduced rights of family reunion for relationships that do not exist prior to the end of the transition period, and it will be a less secure status.
This is because the UK is free to set grounds for deportation related to criminal acts committed after the transition period, even for people already holding permanent residence.
Moreover, much of the promised ‘settled status’ is likely to be set out in secondary legislation, and as the temporary control by the European Court of Justice will fall away after eight years, this status is at risk of being further undermined in the longer run.
Secondary legislation is often adopted with minimal or no parliamentary scrutiny, which means that measures potentially undermining the status of EU citizens could be passed by the government in an opaque way.
Such government action could exploit some points of the Withdrawal Agreement which allow discretion to the UK, or push the boundaries of what is legally allowed under the Agreement when control by the Court of Justice has subsided.
The most challenging in the short term is to what extent EU citizens already in the UK will successfully manage to register for such settled status.
The settled status registration scheme proposed by the UK government promises a simple procedure based on checking legal residence, identity and criminality. For many people this will be done via existing databases such as those held by HMRC.
However, there remains ambiguity regarding the burden of proof for registration if people are not on such databases. As criteria are only set out in secondary legislation and guidance documents, there is a risk they may be tightened over time.
Moreover, as the registration system is compulsory in nature, vulnerable people who might not apply or fail to apply will become illegal immigrants in the absence of the correct paperwork.
Unfortunately, the draft Withdrawal Agreement only provides limited protection against such a tightening of registration requirements. I have argued elsewhere that EU citizens will only be properly protected if the UK signs a protocol attached to the Withdrawal Agreement, which would turn its current political promises of a simple registration procedure into an international commitment.
Equally, the monitoring regime provided by the draft Withdrawal Agreement would need to be strengthened since there is little guarantee that the Independent Authority to be set up by the UK to monitor itself on citizens’ rights obligations will lead to effective and efficient supervision as is today guaranteed supranationally by the European Commission and the Court of Justice.
In its latest Brexit Resolution (March 2018), the European Parliament stressed the citizens’ provisions of the Withdrawal Agreement would need to be improved in several aspects, such as on family reunion and the registration system to be declaratory instead of constitutive in nature.
In a constitutive system, as introduced by the Withdrawal Agreement, absence or failure of successful registration turns people immediately into illegal immigrants, while in a declaratory system (currently applicable under EU law) such absence does not necessarily imply one is illegal and deportation is only possible under much more restrictive conditions.
However, the European Parliament has not made specific suggestions on how to realise this legally, by amendment of the Withdrawal Agreement or, for instance, via a protocol.
While it ‘reiterates that addressing all outstanding issues with regard to citizens’ rights and making sure that the rights of EU citizens legally residing in the UK and of UK citizens legally residing in EU-27 are not affected by Brexit will be one of the key issues for Parliament ́s consent’, it remains to be seen to what extent the European Parliament would play hard on this issue if faced with a no-deal alternative.
Scenario 2: No deal
This is the most challenging scenario for EU citizens. At first sight, they would not fall into an immediate and full legal limbo thanks to the European Union (Withdrawal) Act 2018 adopted by Parliament.
This Act ensures that provisions of European Union law on freedom of movement of persons remain applicable in the UK until the UK adopts measures deviating from them.
Equally, the government has set on track amendments to immigration rules in order to implement a registration system to provide settled status, and it has promised this system would be implemented even in case of no deal.
Despite that, EU citizens will immediately face a legal limbo regarding some parts of their status in case of a no deal. The Withdrawal Act and amendments to the immigration rules cannot cover those rights which EU citizens hold thanks to coordination arrangements between the UK and the EU.
These include the recognition of pension entitlements they have built up in the UK and would carry with them if they returned to their country of origin; and access to health provision that depends on coordination and payments between the NHS and health services in the EU.
These issues certainly require an agreement between the UK and the EU. The question is whether and when, in the case of a no deal on the Withdrawal Agreement, such partial agreements would be signed.
Goodwill between the UK and the EU would be at an all time low, and sorting out these citizens’ rights issues might not be the priority compared to, for instance, ensuring that planes fly or drugs and food can be imported.
Yet, without such an agreement, hundreds of thousands of EU citizens would face difficulties in claiming pension and benefit entitlements that they have contributed to.
Moreover, the continuing application of EU law thanks to the Withdrawal Act is unlikely to last long. With immigration being the government’s apparent number one priority, it will immediately move to adopt new rules on immigration which will deviate from current EU law provisions.
The government has stated it intends to implement the settled status registration scheme even in case of a no deal.
However, it remains to be seen whether that will be done on exactly the same terms. For instance, thanks to the Withdrawal Agreement one would be able to build up settled status following a period of five years’ residence even when arriving just before the end of the transition period.
In the absence of a Withdrawal Agreement, it is not clear that the UK would still be willing for EU citizens to build up settled status if they have not acquired five years of residence prior to Brexit.
In any case, if the government intends to change the status of EU citizens already in the country, it can do so with few limitations if there is no deal. Even if it starts changing only the status of future EU immigration, this will have immediate (unintended) consequences for EU citizens already here.
While EU law would still formally apply to them thanks to the Withdrawal Act, they risk facing discrimination in practice as landlords, employers and service providers may fail to distinguish between new arrivals and those already resident.
Moreover, changes to the status of EU citizens can happen even without extensive parliamentary debate.
The proposed settled status scheme is set out via changes to immigration rules, which is secondary legislation, and Section 8 of the Withdrawal Act leaves considerable leeway for the government to amend the status of EU citizens via so-called Henry VIII powers.
Hence, despite the Withdrawal Act’s mechanism to roll-over EU law, EU citizens are likely to find themselves in significant uncertainty and with a minor legal status pretty soon after, or even on, Brexit day, due to the indirect consequences of government initiatives on future EU immigration or more direct government initiatives affecting their legal status.
Scenario 3: There is no deal, but the UK and the EU promise to honour the provisions on citizens’ rights in the Withdrawal Agreement
Political statements have been made that the citizens’ rights provisions of the Withdrawal Agreement would be unilaterally guaranteed even in case of a no deal.
The intention to respect the citizens’ provisions of the Withdrawal Agreement are welcome; however, legally, such political statements provide no guarantee at all. Moreover, any attempt to translate this unilaterally into national law can never provide the same guarantees as a UK-EU Treaty.
Legal solutions based merely on national law could at all times be revised, and the UK’s approach to regulate this via changes to immigration rules means that much of the status of EU citizens would be set out in secondary legislation and could easily be changed with little or no parliamentary involvement.
Such unilateral guarantees also do nothing to solve the aforementioned issues requiring UK-EU agreement (such as on pension aggregation, and social security and healthcare co-ordination).
Scenario 4: There is no deal on the Withdrawal Agreement, but the UK and the EU sign a citizens’ rights agreement
To protect against the risks of a no deal or a no deal with vague political promises, citizens’ rights provisions of the Withdrawal Agreement (or, ideally, an improved version of them, as set out in scenario 1) would need to be set out in a UK-EU citizens’ rights agreement.
I have argued previously that such an agreement could be based on Article 50 and would be the best way to ring-fence citizens’ rights from bargaining on other Brexit issues while guaranteeing these rights are protected even in case of failure of agreement on other aspects of the withdrawal negotiation.
However, this route has so far not been taken, and citizens have been left in continuing (and increasing) uncertainty. They may well end up on the night of 29 March 2019 not knowing what status they will have the next day.
To avoid such a scenario, the leaders of the EU27 countries and the UK should commit at the extraordinary European Council meeting of November 2018 at the latest to respect the citizens’ rights provisions of the Withdrawal Agreement.
If other parts of the Withdrawal Agreement cannot be confirmed on that date, they should sign the citizens’ rights provisions as a separate agreement under Article 50 on that date, so that it can be implemented by Brexit day, whatever else happens on other issues later on, whether that is failure on other topics or a second agreement under Article 50.
The alternative is a solemn political declaration at that European Summit that the citizens’ rights provisions will be signed as a separate treaty by Brexit day if the rest of the negotiations fail. However, as goodwill will be running low by Brexit day in that latter scenario, such a solemn political declaration might be too weak a guarantee.
Scenario 5: No Brexit
The political situation is now highly volatile and a new referendum or general election could even lead to a decision to remain in the EU. This would be the best possible outcome for EU citizens living in the UK.
However, this does not mean that EU citizens would be able to finally sleep entirely peacefully and get back to their lives as prior to the referendum.
Beside the fact that no Brexit might lead to a backlash in increased racism towards EU nationals, it is unlikely their legal status will entirely return to what it was prior to the referendum.
The referendum has exacerbated a highly politicised debate around immigration, and it is likely the government would want to adopt more restrictive rules even if the UK remained within the EU. EU law allows the UK some flexibility in applying more restrictive rules than it has traditionally done.
In fact, over the last years, the UK has already started to implement a more rigid application of free movement rules, leading to a considerable increase in deportation of EU citizens (5,301 in 2017).
Moreover, given the politicised nature of the immigration debate, the UK may well decide to introduce a registration system for all EU citizens in any case. EU law allows Member States to oblige EU citizens to register soon after they begin to reside in a country, and most Member States have such a registration system.
However, introducing a registration system in a country that never had one could cause problems.
The UK could introduce a registration system for all new arrivals, but this would have knock-on effects for EU citizens already residing in the UK, as they might face discrimination from not holding a similar registration document.
At the same time, obliging EU citizens already in the country to register while applying requirements of EU law, such as proof of being in work or having sufficient resources and comprehensive sickness insurance, can be highly problematic.
People might have complied with these EU requirements a long time ago, which means they would have acquired permanent residence status under EU law, but they might fail to prove that because they were never told they had to retain proof.
So, while EU law allows the introduction of a registration system, it will require careful scrutiny of whether the proposed system complies with EU law, and whether it would not create considerable hardship for some of those who have been long in the country, in a similar way as happened to the Windrush generation.
It is worth pointing out in this context that if the UK intended to go ahead with its proposed settled status registration system, even when remaining in the EU, this would not comply with EU law.
As explained above, the proposed settled status registration is ‘constitutive’ in nature, meaning that those failing to apply successfully will be considered illegal immigrants; EU law provides for a registration system for permanent residence that is declaratory, in which case absence of registration does not necessarily mean a person is in the country illegally.
That careful scrutiny is required on whether EU law is respected as the UK tightens its approach to immigration is also illustrated by the action the UK government has already taken over recent years.
The UK has been strongly criticised for its overly demanding 85-page permanent residence application procedure, characterised by high rejection and high bureaucratic error rates, while immigration lawyers have also criticised highly disputable cases of deportation of EU citizens on the basis of alleged criminal records.
The European Commission has started an investigation into the highly problematic practice of refusing to accept that an EU citizens’ access to the NHS would be sufficient to comply with the EU law requirement of holding comprehensive sickness insurance.
This practice makes it near to impossible for any EU citizen to obtain permanent residence if they cannot show that they have been in work for five years.
Finally, it is important to add that while EU law provides a level of discretion in the application of free movement requirements, the implementation of that discretion can have far-reaching impacts on the lives and rights of many EU citizens who might already have been in the country for decades.
Such political decisions should not be taken lightly and in obscure ways, for instance by secondary legislation and guidance documents, but be open to public debate and parliamentary control.
Yet, the government’s approach to introduce the settled status registration system via secondary legislation does not bode well for how it intends to approach EU immigration even if the UK remains in the EU.
Scenario 6: Agreement on an EEA solution
In case the Withdrawal Agreement is signed (scenario 1), the status of EU citizens will normally be defined by that Withdrawal Agreement, while the future trade relationship will be further detailed in future negotiations.
However, the choice about the future trade relationship may have an impact on the status of EU citizens already residing in the UK, requiring a revision of the Withdrawal Agreement.
This is particularly the case if the future relationship would take the form of an EEA solution. In that scenario, EU citizens would profit from continuing free movement rights as today.
This scenario is thus very similar to scenario 5 (remaining in the EU). However, unlike that scenario, the EEA option will only happen after signature of the Withdrawal Agreement and would only come into force after the transition period.
It is important to acknowledge that some citizens’ provisions of the Withdrawal Agreement are inferior to free movement rights under EEA rules, such as the introduction of a constitutive registration system or freedom for the host country to set the grounds for deportation for criminality.
The Withdrawal Agreement would have to be amended prior to signature, or (if the decision is taken during transition) be overridden by a new UK-EU treaty, while the UK could not go ahead with implementing its registration system for settled status as it is currently designed.
By Stijn Smismans, Professor of Law, holder of the Jean Monnet Chair in European Law and Governance, and Director of the Cardiff Centre.