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Leaked UK Immigration Policy Strains Brexit Negotiations

12 September 2017

Last week, following the end of the third round of Brexit talks, a UK government document was leaked to the Guardian, revealing UK plans to end free movement of people immediately after Brexit, institute a ‘Britain first’ immigration policy and reduce “the opportunity for workers to settle long-term in the UK”.

The leaked document reiterated the UK’s ‘offer’ to EU nationals of a temporary implementation period of two years after Brexit, after which a new set of rules on temporary and permanent migration from the EU will enter into force, placing European citizens on the same footing as third-country nationals.

According to the draft document, only high-skilled EU migrants will be able to obtain a resident permit to work for longer than three years, while low-skilled EU migrants would be allowed to stay and work in UK for a maximum of only two years, restricting the number of people who will be eligible for permanent residence, or ‘settled status’, which will be available after five years’ continuous residence.

Restricted rights for family members

Further restrictions were also set out with regard to EU citizens’ rights to bring in family members. Under the proposed immigration system, only the direct family members (partners, minor children under 18 and adult dependent relatives) will be entitled to UK residency, while “extended family members other than durable partners will no longer qualify as family members under new UK law.” Consequently, many families could be broken up after the UK leaves the EU.

If the policy is adopted, EU nationals would face further requirements to hold a “biometric immigration document” and provide documentation of employment or self-sufficiency and would have to be in receipt of a minimum income.

Tensions increasing

The immigration system proposed in the leaked document could further increase the tensions that have emerged between the EU and the UK after the conclusion of the third round of Brexit negotiations.

In particular, during the last round of Brexit talks that took place in Brussels from 28 to the 31 August, EU and UK negotiators were called upon to discuss their positions on some important ‘separation issues’ covering multiple areas, such as citizens’ rights, the Northern Irish border and the financial settlement after the exit of the UK from the EU.

Even though some progress has been made on citizens’ rights and the Northern Irish border, the EU and UK are still far from reaching common positions on the key issues of contention and moving on to the second phase of negotiations on their future relationship after Brexit.

Citizens’ rights

The rights of EU citizens living in the UK and UK citizens living in another Member State are still a priority for negotiators and are the subject of continuing negotiations, with progress summarised in a Joint Technical Note.

Some progress has been made, with the UK and EU sharing common positions on the status of frontier workers, who will “retain the rights they currently enjoy to enter and to work in the host country…for as long as they retain the status of a frontier worker”, and the recognition of qualifications obtained by EU citizens resident in the UK and UK nationals living in the EU before “exit day”.

In addition to this, a common position has been reached on the aggregation of social security rights, on the basis of which EU and UK citizens who are resident in the UK and in another Member State respectively before the withdrawal date can continue to enjoy their existing healthcare rights and the benefits of the European Healthcare Insurance Card.

However, despite progress in these areas, negotiators have failed to find agreement on the future jurisdiction of the European Court of Justice (ECJ) in the UK. In particular, according to the EU position paper transmitted to the UK, citizens’ rights granted by the withdrawal agreement should be enforceable in front of the ECJ “in accordance with the same ordinary rules as set out in the Union Treaties”. Such a position clashes with the proposal of the UK government, which intends to remove the UK from ECJ jurisdiction after Brexit. This will be replaced by a new system of rights enforceable in the UK legal system, which will qualify and provide guarantees to EU citizens resident in UK before the withdrawal date.

Northern Ireland

Another topic the negotiators conducted a “fruitful” discussion on was the issue of the Northern Irish border and the maintenance of the Common Travel Area (CTA) between the UK and Ireland.

In particular, the EU and the UK agreed on the necessity to confirm and preserve the Belfast (‘Good Friday’) Agreement as well as the CTA and associated reciprocal bilateral arrangements after the UK’s exit from the EU.

Such an agreement would avoid the creation of new obstacles between the two countries and allows UK and Irish citizens to continue to enjoy an open border between the two countries.

Financial settlement

Disagreement between the negotiators, however, emerged on the post-Brexit financial settlement.  According to Michel Barnier, the UK has obligations that go beyond the withdrawal date, such as its contribution to the multi-annual financial framework for 2014-20, pensions payments to EU staff and other long-term budgetary commitments towards third countries.

In a press conference following the talks, Michel Barnier said that UK obligations should not be paid by EU taxpayers but “it is clear that the UK does not feel legally obliged to honour these obligations after departure”. On the other side, David Davis affirmed that “the [financial] settlement should be in accordance with law and in the spirit of the UK’s continuing partnership with the EU”.

In order to advocate for a citizen-friendly Brexit and support the fair treatment of EU citizens in the UK and UK citizens in the EU, ECAS has launched the Citizen Brexit Observatory in partnership with the University of Sheffield School of Law and Law Centres Network, who will offer free legal advice to EU citizens in the UK.