EU demands expat rights be protected for life

Brexit and European flag graphic with people standing in front

The EU has set out formally its wish to guarantee all the key rights of British citizens living in the EU27 and EU27 citizens in Britain after Brexit – putting the ball in Britain’s court to agree to these terms.

Its ‘negotiation directives’ say safeguarding the 'status and rights' of the citizens and their families "is the first priority for the negotiations because of the number of people affected and the seriousness of the consequences of the withdrawal for them”.

The president of the Council of the EU, Louis Grech, said: “We have established the EU position on the key issues for the beginning of the talks. The rights of citizens are at the very top of our agenda and we aim for an ambitious solution, where those affected continue to enjoy their rights".

They say rights to be protected should be reciprocal between Britons and EU27 citizens, based on equal treatment, and should be enforceable and vested for life. Citizens should be able to exercise their rights through ‘smooth and simple’ procedures and any residence cards should be issued ‘under a simple and swift procedure’ essentially of a ‘declaratory nature’.

Rights protected should include:

  • The status and rights derived from EU law at the withdrawal date (ie. probably the end of March 2019)
  • Rights that the people concerned will only enjoy at a later date – for example rights related to pensions – and rights that are in the process of being obtained, including the chance to acquire them after the withdrawal date, under existing conditions. For example a Briton resident in France for two years on Brexit Day could gain ‘permanent residence’ rights three years later.
  • Rights of people who used to be expats in previous years but went back to their country of origin (eg. full rights to pensions)
  • Both economically active and ‘inactive’ people and students, and their family members who join them at any point in time before or after the withdrawal date
  • As a minimum, the definition of protected rights should include: residence and rights from free movement as under the EU treaties, including ‘permanent residence’ after five years and rights to access healthcare; rights obtained under social security coordination rules including exportable benefits and pension aggregation; workers’ rights such as access to the labour market or to run a business, social charge or tax advantages, and access to training. Rights of workers’ family members to education and training under the same rules as nationals.
  • Continuing recognition of qualifications that were recognised at the withdrawal date

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The Council of the EU (sitting in a formation of EU27 Europe ministers) signed off the ‘negotiation directives’ which will be the EU’s main blueprint for the talks – this also officially opens negotiations, though they will now have to wait until after the UK elections on June 8.

They said the Brexit agreement must “provide the necessary effective, enforceable, non-discriminatory and comprehensive guarantees for citizens’ rights”. Arrangements for future enforcement could include a continuing role for the European Court of Justice, the ministers said.

The directives answer many of the concerns raised at last week’s hearings in Brussels at which MEPs, campaigners and others discussed expat rights. 

Broad references to safeguarding ‘status and rights’ also seem to leave to the door open to the possibility for Britons to retain a form of EU citizenship, or (if that proves legally difficult) perhaps a special status replicating most or all of its benefits.

The directives do not mention any arrangements for people wanting to move in either direction after Brexit, however logically any such measures would form part of the second phase of the talks - on the 'future relationship' (including trade) - which will not start until there is progress on the first part, including rights of existing expats and settling the 'Brexit bill'.

Only an outline 'framework for the future relationship' - and possible 'transitional arrangements ' - may be agreed on before the UK leaves. It would then be a 'third country' to the EU and would be expected to negotiate the details of a 'future relationship' deal. 

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