In return, the UK is asking that the EU allow British people living in the EU before Brexit to maintain ‘further free movement rights’, for example for a Briton living in France to move to Spain in later years if they wish.
Campaigners who have been calling for ‘further free movement’ consider that it follows on naturally from the EU’s original pledge to allow expats to maintain their rights. Some legal experts have argued that an EU ‘free movement right’ – such as that being exercised by a Briton living in France as an EU citizen – is just that, and should not be restricted to maintaining a residence right in the country where they currently live.
Sources close to the negotiations previously told Connexion the EU was likely to allow ‘further free movement’ if the UK conceded the right of return, however this is not yet the case.
The EU’s position is still that Britons living in the EU before Brexit would have the right to remain the country of residence and to be considered 'permanent residents' if they have had, or accrue, five years of legal residence, but could lose that right if they spend more than two years away, and would not have ‘further free movement’ rights.
However both parties now agree that no countries would be ‘obliged’ to terminate someone’s right to permanent residence status due to them exceeding two years away, whereas the EU previously took a hard line on this.
UK Brexit Minister David Davis, referring to the 'right of return' offer, said: "I look forward to the response of the European Commission to this offer, once they have consulted with the Member States."
The chairwoman of the British in Europe coalition, Jane Golding, said: “We are delighted that the UK government has shown the flexibility that we asked for on free movement and has offered guaranteed rights of return to EU citizens in the UK with the hope that the EU will respond with onward rights of free movement for UK citizens in the EU.
“This is a big step forward and we hope to see further positive progress but there are still fundamental areas where agreement is needed.”
Disagreement remains on administrative procedures, with the UK maintaining its position that EU citizens would need to obtain a new ‘settled status’ card under British law. However they say those already holding EU permanent residence cards would only have to have a criminality check, show ID and confirm their ongoing residence.
Criminal record checks for obtaining permanent residence status remain a bone of contention, with the EU saying they should not be asked for systematically.
There has also been a small amount of movement on local election voting rights, which the UK says should continue. The EU previously said Britons in the EU would not be able to vote in local elections any more – they now say individual countries can decide if they want to give voting rights to ‘third country nationals’, such as British people will become.
On healthcare, both sides have now made explicit the fact that the S1 health scheme for pensioners will be maintained.
A disagreement remains over future enforcement of the deal on citizens' rights, with the EU wanting the ECJ to be involved, which the UK refuses. However the UK has said the deal would be incorporated directly into UK law, so as to be easily enforceable by the courts, and it agrees that ECJ case law prior to Brexit may be used in interpreting any EU law concepts used in the agreement.
The 'exit bill' to be paid by the UK remains another thorny issue, though the UK has gone further than previously, based on pledges made in Prime Minister Theresa May's speech in Florence.
Mr Davis said: "In her recent speech, the Prime Minister reassured our European partners they’ll not need to pay more or receive less over the remainder of the current EU budget plan, as a result of our decision to leave. The UK has explained this reassurance in detail to the Commission.
"The Prime Minister also made clear that the UK will honour its commitments made during the period of our membership. We are not yet at the stage of specifying exactly what these commitments are. That will need to come later. Nevertheless, our negotiating teams have held very constructive discussions this week on detailed technical issues relating to that."
Michel Barnier said Mrs May’s speech had ‘created a new dynamic’ in the negotiations and he said the two teams had worked well together.
Some further clarity had been arrived at, he said, “but we are not there yet”.
“We will keep working in a constructive spirit until we reach a deal on the essential principles of the UK’s orderly withdrawal.”
He said the ‘direct effect’ of the agreement in UK law was an important advance making sure that EU citizens would in future be able to defend their rights in front of UK courts.
There had also been “useful” talks about technical aspects of the financial settlement, he said.
There had not yet been 'sufficient progress' for the second phase of talks, on matters such as trade and defence cooperation, to start. He said however he hoped work could start soon on drafting the withdrawal treaty, and that the EU was willing to consider a short 'transition period' as requested by Mrs May in Florence.
Talks will resume on October 9.
- Summary table of both sides' positions: here.
