The 26 June UK government paper purports to lay out safeguards for the position of EU citizens living in the UK and of UK nationals living in the EU. In fact, it focuses on the former. As do the considerations in this post. The government paper distinguishes three groups of EU citizens currently living in the UK for purposes of their post-Brexit status: group 1 includes EU citizens who will have accrued at least five years of continuous residence in the UK at a cut-off date yet to be determined; group 2 includes EU citizens who will not have accrued five years of continuous residence in the UK at the cut-off date, but will complete the five years continuous residence requirement within a grace period beginning on the cut-off date; and finally group 3 includes EU citizens who have begun residing in the UK before the cut-off date but will not have accrued five years of continuous residence either at the cut-off date or by the end of the subsequent grace period. The cut-off date will be a date comprised between 29 March 2017 and the actual Brexit day.
The three groups face different prospects in terms of achieving ‘settled status’ under UK law, that is indefinite leave to remain in the UK, enabling the holder to ‘be free to reside in any capacity and undertake any lawful activity, to access public funds and services and to apply for British citizenship’. EU citizens in group 1 will transition to settled status on the cut-off date. EU citizens in group 2 will have an interim right to remain in the UK between the cut-off date and the end of the grace period, and then transition to settled status. EU citizens in group 3 are the least protected, as at the end of the grace period they will have to apply for some sort of temporary residence permit allowing them to bridge the missing residence time to gain settled status.
In terms of content, settled status promises, beyond an open-ended leave to stay in the UK, retention of access to a number of rights and benefits on an equal basis with UK nationals. These include pensions, in-work benefits and access to public services such as healthcare. But also access to education, and study finance, and recognition of diplomas and professional qualifications. Yet, settled status is not citizenship. It is not comparable to the status of either a national or supranational citizen exercising their rights. As the government paper emphasizes (point 17), it is an immigration status in UK law. So how to think of the UK offer as an EU citizen?
The offer is an offer to the EU and to the governments of the 27 other EU Member States, in the context of a negotiation. From the citizens’ perspective, it is less of an offer, and more of a consolation prize. Brexit, for citizens, and particularly for EU citizens in the UK, amounts to a loss of rights. Whilst UK nationals in the EU will lose their status of EU citizenship, EU citizens in the UK remain EU citizens but the mantel of EU citizenship will no longer give them an EU law status and EU law rights in the UK. Hence, from their perspective, the proposal set out in the UK government paper, is at most a make up offer.
As a make up offer it is reassuring. The accent is on continuity of rights and the government paper recognises the need to honour the expectations of EU citizens who came to the UK with a view to building a life there. It points out that the choice in the EU referendum was about ‘arrangements going forward, not about unravelling previous commitments’. Yet the ‘offer’ remains a negotiating position addressed to the interlocutors at the negotiating table and grounded in the expectation of reciprocal guarantees to be offered by the other EU Member States to UK nationals (see point 16). It is full of vague terms, that only the unfolding of the negotiations, and of the respective positions, may fully flesh out. Uncertain remain, among others, the documents needed to evidence continuous residence in the UK, the length and nature of the procedure to obtain documentation proving settled status, the authorities entrusted with enforcing the rights of settled EU citizens and solving the inevitable ‘grey area’ disputes.
So beyond the reassurance that the government paper may provide, where is the catch exactly? Here are three considerations in this respect. The UK government paper says that EU citizens will continue to enjoy the right to free movement until the UK’s departure from the EU (point 23). This is true only in part. It is true in the sense that EU citizens in the UK are protected by EU law on free movement in their right to stay in the UK until the UK’s departure. However they have already de facto lost the right to free movement within the EU. If they intend to qualify for settled status in the UK, they need five years of continuous residence at the cut-off date. Hence should they exercise free movement rights now, and say take up a temporary employment position, or just relocate for a while, in another Member State, they would interrupt their continuous residence and forgo the opportunity to transition to settled status post-Brexit. So their rights under EU law, which include the right to move back and forth among the EU Member States, are already in jeopardy today.
Second, the settled status that is being promised to EU citizens in the UK has a distinctively different flare in comparison to the EU law rights of a citizen. It is a government-granted leave to remain, as opposed to a Treaty-backed right to reside. As the UK government paper remarks, EU citizens will need specific documentation to prove this status. This is in stark contrast with the condition of migrant EU citizens, who in most cases do not have to prove or evidence their right to reside in another Member State. Further, settled status can be lost. Two years of absence from the UK determine its forfeiture. One could object that even the status of EU permanent residence is lost after two years of absence from the granting Member State. Yet an EU citizen who loses permanent residence because of absence remains entitled to exercise his or her Treaty based free movement rights in the Member State of former permanent residence. An EU citizen settled in the UK post-Brexit who loses settled status will likely fall back into the class of disentitled migrants.
And finally, the government paper is silent as to EU citizens’ political rights in the UK. EU citizens resident in the UK can currently vote in European Parliament and local elections. As settled migrants post-Brexit they will presumably lose any such political voice.
This links back to the point that Brexit is unavoidably a loss of citizenship. For as generous as it can be, a ‘make up offer’ can at best honour the expectation of EU citizens to be able to build a life of some sort in the UK. It cannot honour the expectations that many of them will have harboured to build that life as supranational citizens and not as migrants. The label ‘EU migrants’, long used in the UK, may have disguised that expectation.
This piece was written by Dr Francesca Strumia of the University of Sheffield School of Law for the Citizen Brexit Observatory.
What Do Citizens Want From Brexit? – Survey findings
Photocredit: European Union