Whereas 23rd June 2016 will be remembered as one of the blackest days of our lives, as EU citizens in the UK and Brits in the EU, the announcement of a last-minute agreement “securing” citizens’ rights, will probably rank as being “very dark grey”.
Two things come to mind when analysing the outcome of this deal. Concerning the timing of the agreement, it was not so long ago, that there were huge gaps between the EU and UK’s respective positions, regarding many aspects of citizens’ rights. These discrepancies have miraculously been bridged, one week before the much publicised EU meeting, that will decide whether the second phase of the negotiations will be allowed to begin. Dare I say that the economics of phase 2 has taken precedence over the morality of phase 1?
Let’s not be so sarcastic about the timing. Some students at school do very well at exams, having begun their revision, just a few days before. But what about the content of the agreement? According to the BBC news website, at least one Spanish national, living in the UK, is reassured about her future, saying that, ” we can be relaxed, and that is good news for me.”
Both Parties have reached agreement in principle across the following three areas under consideration in the first phase of negotiations, on which further detail is set out in this report:
a. protecting the rights of Union citizens in the UK and UK citizens in the Union;
b. the framework for addressing the unique circumstances in Northern Ireland; and
c. the financial settlement.
Since both parties have reached an agreement, I certainly won’t criticize the UK more than the EU. Both are in it together, both have agreed, and I love them both – for now.
The joint commitments set out below, in this joint report, shall be reflected in the Withdrawal Agreement, in full detail. This does not prejudge any adaptations that might be appropriate, in case transitional arrangements were to be agreed in the second phase of the negotiations, and is without prejudice to discussions on the framework of the future relationship.
If I understand correctly, we are dealing with flexible commitments. Does this mean that EU citizens’ rights can be modified, in light of any future trade deal agreement? If so, I don’t yet smell the odour of burning bargaining chips, but the French fries are close to being overcooked.
The UK and EU27 Member States can require persons concerned, to apply to obtain a status conferring the rights of residence, as provided for by the Withdrawal Agreement, and be issued with a residence document attesting to the existence of that right.
The above clause is one of the most insulting clauses of the whole agreement. Again, I stress that the clause has been drafted by the UK, jointly with the EU. I have been in an EU member state, since January 1984 – 34 years, give or take a day or two. Must I now justify my rights of residence, with all that the procedure entails? I don’t care how “streamlined” the procedure is, it is still an administrative procedure. Things will go wrong for many people – a missing form here, a lack of details there, an administrative worker who misinterprets the meaning of a law that he has not fully read, yet alone understood. Granting our rights by simply confirming our names on a register would be much more logical, as most of us – I assume – are already registered, in some way or other, with local authorities, or other organisations. Logical it may be, but lawyers and politicians do not always share the naive logic of grass-root EU citizens.
Competent authorities will give applicants the opportunity to furnish supplementary evidence, or remedy any deficiencies where it appears a simple omission has taken place. A principle of evidential flexibility will apply, enabling competent authorities to exercise discretion, in favour of the applicant, where appropriate.
I rest my case. I am currently registered in the Netherlands as a British national. I wouldn’t be surprised, if I found it easier, when the time comes, to re-register as a French national. In this respect, I am lucky, but my thoughts are with those who are not.
The conditions for acquiring the right of residence,under the Withdrawal Agreement, are those set out in Articles 6 and 7 of Directive 2004/38/EC, including the right to change status.
This is a probable confirmation that UK citizens who have not yet met the requirements for permanent residency, will be allowed to do so.
In order to obtain status under the Withdrawal Agreement by application, those already holding a permanent residence document issued under Union law3, at the specified date, will have that document converted into the new document free of charge, subject only to verification of identity, a criminality and security check and confirmation of ongoing residence.
I did have the afore-mentioned card, when I came to the Netherlands, only to be told that I didn’t need to renew it…“Haha, gotcha,” will probably be the answer from the very-short sighted, and bored, civil servant behind the bulletproof immigration window…“you’ll have to go through the whole process again.” My answer to him will also be cutting and witty…I will brandish, with pride, my “Passeport de la République Française”, and say to him, “Au revoir, Monsieur.”
My advice to all Brits in the EU-27 is, “get a EU-27 nationality – get your life back”. However, I’m sorry to say that this advice does not apply to EU citizens in the UK. Dual nationality is allowed, after obtaining British citizenship. However, since 2012, the UK has insisted on not recognising EU rights, for dual nationals. In particular, problems can arise concerning family reunification involving non-EU citizens. It now seems that, in the phase 1 agreement, the UK will apply EU law to dual British-EU citizens, residing lawfully in the UK. This “change of heart” could be related to a decision of the European Court of Justice (ECJ), in a highly emotional ruling (see case report, below).
Persons who acquired the permanent residence rights in the host State, under the Withdrawal Agreement, can be absent from its territory, for a period not exceeding five consecutive years, without losing their residence right, under the Withdrawal Agreement.
Loss of residency should not a problem for EU citizens. Current EU law states that if you chose to live outside your country of residence for more than two years, the right to permanent residency may be lost. However, Directive 2004/38 mentions that individual states are not obliged to do this. As you haven’t lost your EU citizenship, I presume that having to reapply for residency should be relatively straightforward. For British nationals, post-Brexit, the procedure may not be as straightforward. Freedom of movement, so dear to the EU, may not be as free as it seems – at least, for the Brits in Europe.
In Round 6 of the Brexit negotiations, the UK position was as follows, concerning EU citizens in the UK:
The UK is prepared to offer more generous arrangements, for instance based on the concept of “strong ties”(e.g. students abroad for studying, overseas posting). This should also be seen in te context of the offer for a guaranteed right of return for those who have acquired permanent residence status.
The EU seems to have ignored this offer, both sides now finding a period of 5 years, acceptable.
More distressing, and completely omitted in the agreement, is the fact that UK nationals, working in the EU-27, have not acquired the right to move to another member state, and are thus “trapped” in the member state in which they find themselves, at the time Brexit officially takes place. For some, this may represent a very real threat to their livelihoods. At least for the weather, do make sure that you are trapped in Spain, and not Latvia.
Decisions on recognition of qualifications granted to persons covered by the scope of the Withdrawal Agreement, before the specified date in the host State and, for frontier workers, the State of work (either the UK, or an EU27 Member State) under Title III of Directive 2005/36/EC (recognition of professional qualifications, where the person concerned was exercising the freedom of establishment), Article 10 of Directive 98/5/EC (lawyers who gained admission to the host State profession, and are allowed to practise under the host State title, alongside their home State title), and Article 14 of Directive 2006/43/EC (approved statutory auditors), will be grandfathered. Recognition procedures under these Directives that are ongoing on the specified date, in respect of the persons covered, will be completed under Union law and will be grandfathered.
I’ll admit it. This clause is what I’ve been waiting for, since June 2016. I’ve been having nightmares about the mutual recognition of professional qualifications – the permission for me to hurt innocent Dutch men, women, and children, with my high-speed drill. I know, it’s being selfish, but that’s what Brexit is all about – multiple individual cases, with their own specificity and intricacies. Brexit affects us all, albeit in different ways. That is why we must keep on fighting, and not accept the agreement between the UK and EU, in its present form. We all need to be protected.
Whilst the UK may have lost in terms of having to accept the ECJ, the EU has diminished the very freedom of movement of its own citizens, that it cherished, in the expectation of maintaining a lucrative market. It should be noted that, the UK’s “acceptance” of the ECJ, is limited to 8 years, and even during this period, UK courts are not obliged to ask the ECJ for anything. It will be extremely difficult, and costly, for EU citizens in the UK, to appeal directly to the ECJ.
The Agreement should also establish a mechanism enabling UK courts, or tribunals, to decide, having had due regard to whether relevant case-law exists, to ask the CJEU questions of interpretation of those rights, where they consider that a CJEU [ECJ] ruling on the question is necessary for the UK court, or tribunal, to be able to give judgment in a case before it.
“Enabling UK courts…to ask the CJEU questions,” is no obligation.
Some may argue that sufficient progress has been made, concerning citizens’ rights. I get the distinct feeling, especially concerning residency and freedom of movement, that so little progress has occurred, that it does not justify moving on to phase 2 of the negotiations.
These are the words of Guy Verhofstadt, a few months ago:
The European Union has a common mission to extend, enhance and expand rights, not reduce them. We will never endorse their retroactive removal. The European parliament will reserve its right to reject any agreement that treats EU citizens, regardless of their nationality, less favourably than they are at present. This is a question of the basic fundamental rights and values that are at the heart of the European project.
Our rights have been diminished. If I did not possess French citizenship, I would not be able to return to France, if I so wished – even having lived there for over 15 years. This was certainly not what I understood Guy Verhofstadt to have said. This should not be about politics or economics, but something much more important. This should be about being able to sit on the roof-top of your car and admire the countryside around you, moving from one place to the other, never stopping until you run out of petrol. And when you do, the country that you find yourself in, will accept you, and make you feel at home, and give you work. Of course, all member states have rules, and hospitality is not entirely free of charge. But the basic principle by which men, women and children can voyage, and work, from one country to another, remains, and cannot be questioned. The rights are not only acquired – they should be inherent and inherited. This means that every single EU citizen should be able to pass on those rights to his children, and his children’s children, ad infinitum – reflecting the magnitude of the power of the European project.
Unfortunately, the morality that was supposed to be the foundation of the first phase of the Brexit negotiations, is going to be replaced by the economics of the second. The stakes are high, and the potential downfall of the EU economies poses a real threat to any fragile economic recovery, taking place in the EU. Countries like the Netherlands, would be most at risk from the effects of a hard Brexit. The UK is Netherland’s third-biggest trading partner, accounting for over 3% of total employment, and roughly 3% of nominal Dutch GDP. The latter could be reduced by 2-3 percentage points, after Brexit. For now, the EU is standing firm by its economic principles. The UK will not be allowed to undermine the integrity of the single market, by obtaining a special economic status.
As we enter phase 2 of the negotiations, some consider citizens’ rights to be done and dusted. Nothing could be further from the truth. We must not forget the clause stating that the details of the agreement can be subject to change. Depending on the progress made in the trade agreement talks, citizens’ rights will certainly play a bargaining role, and may well be modified, depending on the circumstances. I’m convinced that both the UK and EU are desperate to agree a trade deal, despite what both sides are saying. The desperation underscores the sudden convergence of the two sides in the first phase of the negotiations.
Case report highlighting the importance of the ECJ
The Immigration (European Economic Area) Regulations 2016 impart rights to a EEA national, but the latter is defined as, “a national of an EEA State who is not also a British citizen.” On becoming British citizens, EEA nationals – whilst not losing their EEA citizenship – fall outside the scope of the UK’s implementation of EU law.
A case involving a Spanish citizen, who became a British national, was brought in front of the ECJ. In 2014, she married an Algerian national who had, originally, overstayed his 6-month visitor visa. He applied for a residency card, as a family member of an EEA national. The application was refused, and after appealing to the high court of England and Wales, the case was referred to the ECJ. After 5 months of deliberation, the ruling of the ECJ was as follows:
… A non-EU national in Mr Lounes situation is eligible for a derived right of residence under Article 21(1) TFEU, on conditions which must not be stricter than those provided for by the directive or the grant of such a right to a third-country national who is a family member of an EU citizen who has exercised his right of freedom of movement by settling in a Member State other than the Member State of which he is a national.
This case sets a precedence, and must have greatly contributed to the UK’s decision to abide by EU laws, concerning family reunification.
Irrespective of their nationality, the following categories of family members who were not residing in the host State on the specified date will be entitled to join a Union citizen or UK national right holder after the specified date for the life time of the right holder, on the same conditions as under current Union law…
It may be just as well that the ECJ be “the ultimate arbiter of the interpretation of Union law,” for a period of time, because what happens after the UK has left the EU might be an entirely different matter.
If you are relieved that a deal has been done, open your eyes to the harsh reality. The deal reached, concerning citizens’ rights, has been written on recycled paper, and noble EU ideals have been erased from the original script. In their place, is a text that says nothing, and means even less. For the hard working coalition, British in Europe, “the deal is even worse than expected.” Guy Verhofstadt’s words seem more void of concrete meaning, than ever. No, citizens’ rights have not been done and dusted – they have been swept under the carpet, and risk being trampled on, even more.
Good to see that sufficient progress has been made in Brexit negotiations in the areas of citizens’ rights, the financial aspects and the (Northern) Irish border. – Mark Rutte
Well, Mark, if you say so. Now let’s get an economic deal, that’s just as good as the one for British expats…