Brexit And EU Nationals (I) – The European Council’s Proposals

eu council

The prospective deal that Theresa May offers EU citizens already living in the UK, is a minimalist view on an ideal world for EU nationals. Once again, she has failed to make a connection with ordinary people, this time with genuinely worried EU expats in the UK, and British expats living in the EU. Her offer, although guaranteeing rights of EU citizens in the UK, falls short of the EU proposal demanding safeguards of all EU rights for its citizens  and their family members, ad infinitum


Here is the European Council’s full proposal for a deal concerning UK citizens living in another country of the EU, and EU citizens living in the UK.

The Agreement should safeguard the status and rights derived from Union law at the withdrawal date, including those the enjoyment of which will intervene at a later date (e.g. rights related to old age pensions) as well as rights which are in the process of being obtained, including the possibility to acquire them under current conditions after the withdrawal date (e.g. the right of permanent residence after a continuous period of five years of legal residence which started before the withdrawal date). This should cover both EU27 citizens residing (or having resided) and/or working (or having worked) in the United Kingdom and United Kingdom citizens residing (or having resided) and/or working (or having worked) in one of  the Member States of the EU27. Guarantees to that effect in the Agreement should be reciprocal and should be based on the principle of equal treatment amongst EU27 citizens and equal treatment of EU27 citizens as compared to United Kingdom citizens, as set out in the relevant Union acquis. Those rights should be protected as directly enforceable vested rights for the life time of those concerned.
Citizens should be able to exercise their rights through smooth and simple administrative procedures.
The Agreement should cover at least the following elements:
a) Definition of the persons to be covered: the personal scope should be the same as that of Directive 2004/38 (both economically active, i.e. workers and self -employed, as well as students and other economically inactive persons, who have resided in the UK or EU27 before the withdrawal date, and their family members who accompany or join them at any point in time before or after the withdrawal date). In addition, the personal scope should include persons covered by Regulation 883/2004, including frontier workers and family members irrespective of their place of residence.
b) Definition of the rights to be protected: this definition should include at least the following rights:
i) the residence rights and rights of free movement derived from Articles 18, 21, 45 and 49 of the Treaty on the Functioning of the European Union and set out in Directive 2004/38 (covering
inter alia the right of permanent residence after a continuous period of five years of legal residence and the right as regards access to health care) and the rules relating to those rights; any document to be issued in relation to the residence rights (for example, registration certificates, residence cards or certifying documents) should have a declaratory nature and be issued
under a simple and swift procedure either free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents;
ii) the rights and obligations set out in Regulation 883/2004 on the coordination of social security systems and in Regulation 987/2009 implementing Regulation 883/2004 (including future amendments of both Regulations) covering inter alia, rights to aggregation, export of benefits, and principle of single applicable law for all the matters to which the Regulations apply;
iii) the rights set out in Regulation 492/2011 on freedom of movement for workers within the Union (e.g. access to the labour market, to pursue an activity, social and tax advantages, training, housing, collective rights as well as rights of workers’ family members to be admitted to general educational, apprenticeship and vocational training courses under the same conditions as the nationals of the host State);
iv) the right to take up and pursue selfemployment derived from Article 49 of the Treaty on the Functioning of the European Union.
For reasons of legal certainty, the Agreement should ensure, in the United Kingdom and in the EU27, the protection, in accordance with Union law applicable before the withdrawal date, of
recognised professional qualifications (diplomas, certificates and other evidence of formal qualification) obtained in any of the Union Member States before that date. The Agreement
should also ensure that professional qualifications (diplomas, certificates or other evidence of formal qualification) obtained in a third country and recognised in any of the Union Member
States before the withdrawal date in accordance with Union law rules applicable before that date continue to be recognised also after the withdrawal date. It should also provide for arrangements relating to procedures for recognition which are ongoing on the withdrawal date.
Compared to Theresa May’s after-dinner speech that could affect millions of people, the EU’s response – which was ready weeks ago – reflects the collective concentrated wisdom showed by all EU negotiators. In this respect, the UK has a lot to learn but is too busy worrying about internal politics to be able to put forwards a Brexit plan. It is wise for the EU to demand that the European Court of Justice should be able to act on behalf of its citizens – a point that the UK is unlikely to accept.
The Agreement should contain provisions relating to the overall governance of the Agreement. Such provisions must include effective enforcement and dispute settlement mechanisms that fully respect the autonomy of the Union and of its legal order, including the role of the Court of Justice of the European Union, in order to guarantee the effective implementation of the commitments under the Agreement, as well as appropriate institutional arrangements allowing for the adoption of measures to deal with unforeseen situations not covered by the agreement and for the incorporation of future amendments to Union law in the Agreement.




[beautifulquote align=”left” cite=””]Is disregarding people’s lives in such a manner morally justifiable?[/beautifulquote]

We must wait until Monday for Theresa May’s government paper to make the UK’s position on EU expats officially known. Why she could not have earlier stated what she was planning to propose remains a mystery. Would it really have weakened her bargaining position? The EU doesn’t seem to think so, having published the above statement weeks ago. It does seems that the UK government is acting like a lazy schoolboy who always does his homework at the last-minute. Theresa May has, once again, distanced herself from the people who really matter. Last week, it was the people of Grenfell Tower. This week, it is the millions of EU and UK expats. Is it morally justifiable to disregard people’s lives in such a manner?

From what Theresa May said yesterday during her meeting with other EU leaders, it seems that the UK proposals concerning the 3 million EU nationals living in the UK, falls short of what the EU considers to be the best deal. “Cut-off points” and “grace periods” are not what we’re talking about. We are discussing people’s lives – men, women and children who have, up to now, been living in a world that Theresa May is threatening to profoundly modify, if not destroy.

Theresa May’s proposals fall substantially short of those of the European Council. Under EU guidelines, the rights of EU citizens in the UK and UK citizens in the EU – and their families – remain unchanged ad infinitum. I cannot stress enough the importance of the two latin words which mean “to perpetuity”. It is inconceivable that children born into EU citizens’ families should not have the same rights as their parents. This is just one of the complex problems that we would face if our present status were to be modified. Another major sticking point will be the EU’s insistence of making the European Court sole guarantor of the rights of all EU citizens – something Theresa May will not agree to, unless she uses this as a bargaining tool.

This is a fair and serious offer. I want to give those EU citizens in the UK certainty about the future of their lives, but I also want to see that certainty given to UK citizens who are living in the EU. – Theresa May, 22nd June

For the time being at least, only the EU has given its citizens certainty. The UK has a moral duty to match the EU in guaranteeing the rights of millions of citizens. However, having already waited a year, we can surely wait until Monday.