Citizens’ rights and Brexit: significant agreement reached

12th December 2017

The Commission announced on 8th December that it considers sufficient progress has been made regarding negotiations in respect of citizens’ rights in order for trade discussions to commence. 

Immigration law has been a distinct area of difference between the British Government and the European Commission in negotiations regarding Brexit.  The Government intends that, from March 2021, domestic immigration law will apply to applications made by citizens of EEA countries to live and work in the UK, whilst the Commission has sought these rights to continue to be subject to European Union law and jurisdiction.  A compromise between these positions seems to have been reached. 

The Joint Technical Note specifying the agreement between the British Government and the European Commission of 8th December confirms the majority of issues are now resolved. Areas which were previously unclear but on which there is now agreement are the following:

  • the effective date by which such rights must be first exercised is to be the day the UK leaves the European Union; this means that EEA citizens in the UK before 29 March 2019 will have the ability to stay in the UK beyond Brexit on the agreed terms
  • provisions are agreed about the rights of dependants of EEA citizens: future spouses and children born after the withdrawal date will continuing to qualify, but national law will apply to more extended family members e.g. common law spouses
  • permanent residence will not be lost by EEA citizens unless they have been absent from the UK for five consecutive years
  • the agreement allows a registration system to be introduced by the British Government which obliges most EEA citizens to seek confirmation of their right to live and work in the UK: the system must be open for at least two years after the date of withdrawal, be straightforward and objective, apply proportionality and use no criteria outside this Agreement
  • those who already hold an EEA Permanent Residence document may convert this to the new immigration status of Settled Status subject only to a check on identity, criminality, security and continued residence
  • British courts will decide on the applicability of European law to these decisions, but will apply decisions of the Court of Justice of the European Union to such rights. They may continue to refer questions to the Court of Justice for a period of eight years.


No agreement has yet been reached regarding the continuing protection of the rights of British citizens in other member states. 

There remains considerable detail to be agreed in respect of the qualifying criteria, but the terms of the agreement to date do allow those impacted by the immigration changes to plan their futures with more certainty.

Employment law after Brexit?

The announcement outlined above does not address UK employment law, as opposed to citizens’ rights, after Brexit. However, the EU Council meeting later this week might provide further information as to the terms of any two year transition period, including whether the UK would be expected to apply existing and new EU employment law during that period.

 

For more information please contact Audrey Elliott or Tom Bray.

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