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Citizens’ rights in the post Brexit scenario

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Abstract

This article focuses on the issue of citizens’ rights in the post-Brexit landscape, taking into account the negotiations’ current state of play. At this stage, the European Union (EU) and the United Kingdom (UK) seem to share a common understanding on citizens’ rights, currently covered by Part Two of the Draft Withdrawal Agreement published in March 2018. Even though progress has been achieved on the provisions regarding citizens’ rights, some concerns remain both on the content of these provisions and on their implementation. Apart from this, the protection of free movement of persons has still to be defined in the framework of the future relationship.

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Notes

  1. Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union (8 December 2017). Available at: https://ec.europa.eu/commission/sites/beta-political/files/joint_report.pdf.

  2. Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community published on 19 March 2018. Available at: https://ec.europa.eu/commission/sites/beta-political/files/draft_agreement_coloured.pdf. The text highlighted in green in the Draft Agreement has been agreed at negotiators’ level and will only be subject to technical legal revisions. On 19 June 2018, the UK/EU joint statement records the progress made since the publication on 19 March 2018 of the draft Agreement on the Withdrawal of the UK. Available at: https://ec.europa.eu/commission/sites/beta-political/files/joint_statement.pdf.

  3. Other green areas of the Draft Agreement include Part Four (Transition), Part Five (Financial provisions) and some provisions of the Protocol on Ireland.

  4. The coming months will be crucial for the comprehension of the negotiation process.

  5. Part Four of the Withdrawal Agreement (Transition).

  6. Art. 6 and 123 Draft Withdrawal Agreement (Institutional arrangements).

  7. In the literature, on the evolution of European citizenship notion, especially on the relevance of residence (and other genuine link) in determining citizens’ rights, see Davis [1], p. 55; Shaw [6].

  8. The Draft Withdrawal Agreement does not allow for the further free movement rights (even though they are no longer expressly excluded).

  9. Art. 9(c)(d) Draft Withdrawal Agreement.

  10. Art. 23(3) Draft Withdrawal Agreement.

  11. Directive No 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services [1997] OJ L 18/1.

  12. Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems [2004] OJ L 166/1.

  13. Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems [2009] OJ L 284/1.

  14. The UK will be obliged to follow any changes in Union law (including all new case law from the Court of Justice). This provision will create a situation similar to that experienced within the European Economic Area (EEA), which makes possible a dynamic application of EU law to nationals from Norway, Liechtenstein and Iceland. Regarding the future relationship with those countries, the UK is going to be authorized by the EU to open talks with EFTA countries with the aim of replicating provisions on citizens’ rights currently agreed with the EU.

  15. Art. 17(1)(e) Draft Withdrawal Agreement.

  16. Home Office, EU Settlement Scheme: Statement of Intent (21 June 2018). Available at: https://www.gov.uk/government/publications/eu-settlement-scheme-statement-of-intent. This publication is considered a good first step in ensuring the necessary clarity for the 3.4 million EU citizens residing in the UK, reflecting ‘the results of the extensive and on-going work at technical level carried out in the user-groups established by the Home Office, in which the EU27 embassies and the Commission Representation in London have intensively participated’. Council of the European Union, Task Force on the UK, Letter to Mr Guy Verhofstadt of 11 July 2018 (reply to his letter of 27 June 2018).

  17. See documents published by 3 Million Association, among others, recently, The last mile on citizens’ rights, available at: https://www.the3million.org.uk/.

  18. UK Government, White paper on legislating for the Withdrawal Agreement (24 July 2018). Available at: https://www.gov.uk/government/publications/legislating-for-the-withdrawal-agreement-between-the-unitedkingdom-and-the-european-union, para. 30 (c) and 32.

  19. McKee [3].

  20. They are concerned about UK authorities’ discretion in managing the registration system, having in mind the high percentage of rejection (almost \(30\%\)) in the current Permanent Residence Procedure. For more updated information, see the Home Office’s Immigration statistics, year ending March 2018, available at: https://www.gov.uk/government/statistics/immigration-statistics-year-ending-march-2018.

  21. European Parliament. Press statement (24 April 2018). Brexit: EU and UK citizens’ rights remain EP key priority. Available at: http://www.europarl.europa.eu/news/en/press-room/20180424IPR02423/brexit-eu-and-uk-citizens-rights-remain-ep-s-key-priority.

  22. See the EU Settlement Scheme and UK Government, White paper on legislating for the Withdrawal Agreement (24 July 2018). Available at: https://www.gov.uk/government/publications/legislating-for-the-withdrawal-agreement-between-the-unitedkingdom-and-the-european-union.

  23. Council of the European Union-Task Force on the UK, Letter to Mr Guy Verhofstadt of 11 July 2018 (reply to his letter of 27 June 2018); European Commission Task Force Article 50 TEU, Letter to Rt Hon Sajid Javid (reply to his letter of 21 June 2018).

  24. Joint Report, para. 36; Dougan [2], p. 71. The Author intends this provision, which currently is related only to citizens’ rights, as ‘a post withdrawal ‘mini-supremacy clause’ to introduce into national law’.

  25. UK Government, White paper on legislating for the Withdrawal Agreement, para. 29 and 30.

  26. House of Lords, European Union Committee, Dispute resolution and enforcement after Brexit, 15th Report of Session 2017-19 (3 May 2018).

  27. The statutory functions of the IMA are expected to be set out in the Bill, as announced by the UK in the White Paper on Legislating of the Withdrawal Agreement, para. 51.

  28. In the view of citizens associations the powers given to the authority are considered weak, hardly compensating for the future absence of the infringement procedure.

  29. Smismans [8], p. 5. According to this Author this Authority should be properly enshrined in the Withdrawal Agreement not as a transitory body, but as a proper institution whose role is not limited in time.

  30. Peers [4]. The Author foresees the risk that Authority lacks sufficient staff and funding.

  31. The Joint Committee is established in Art. 157 of the Withdrawal Agreement. This system is inspired from Art. 111 of the EEA Treaty, with a difference that the dispute could be submitted to the CJEU at any time if both sides agree, and after three months unilaterally.

  32. Advocate general Szpunar, Opinion 7th August 2018, case C-327/18 PPU, Minister for Justice and Equality v. RO, paragraph 49 ‘in the absence of a withdrawal agreement […] things being as they are, the UK will leave the EU. This is the assumption we must work on, since it is the default position. All else may be written in the stars—And it does not look as if the stars are those of European flag’.

  33. This principle is one of the core principles laid down in paragraph 2 of the Guidelines following the United Kingdom’s notification under Article 50 TUE (EUCO XT 20004/17) adopted by the European Council on 29 April 2017, available at: https://www.consilium.europa.eu/media/21763/29-euco-art50-guidelinesen.pdf.

  34. Advocate general Szpunar, Opinion 7th August 2018, case C-327/18 PPU, Minister for Justice and Equality v. RO, paragraph 1 ‘we know that we know next to nothing about the future legal relationship between the EU and United Kingdom of Great Britain and Northern Ireland’.

  35. Smismans [7].

  36. Peers [5]. The Author assumes that article 50 does not exclude the coexistence of different agreements aiming at achieving the same objective of withdrawal agreement.

  37. European Council, Guidelines, 29 April 2017, para. 2. These elements include financial settlement and the issue of Ireland.

  38. I keep aside the initiatives devoted to build new categories of European citizenship, as the proposal for on associated citizenship to Britons (as indicated in an amendment tabled by one MEP to the Draft Report of July 2016 of the European Parliament Committee on Constitutional Affairs—AFCO) and other citizens’ initiatives, which aim at severing the link between nationality and European citizenship (available at: www.eucitizen2017.org and www.choosefreedom.eu).

  39. House of Commons—Exiting the European Committee, The progress of the UK’s negotiations on EU withdrawal: the rights of UK and EU citizens, Eight Report of Session 2017-2019 (23 July 2018). Recently, the UK government adopted a paper on the ‘preparation for a no deal scenario’ (22 August 2018). Available at: https://www.gov.uk/government/publications/uk-governments-preparations-for-a-no-deal-scenario; subsequently, a guidance on Workplace rights if there’s no Brexit deal (23 August 2018). Available at: https://www.gov.uk/government/publications/workplace-rights-if-theres-no-brexit-deal/workplace-rights-if-theres-no-brexit-deal.

  40. The red lines are stated by Prime Minister May in her withdrawal letter sent to the European Council the 29 march 2017, subsequently confirmed in the White paper on the future relationship between the UK and the European Union, p. 32.

  41. European Council, Guidelines, 29 April 2017, para. 1, available at: https://www.consilium.europa.eu/media/21763/29-euco-art50-guidelinesen.pdf.

  42. European Council, Guidelines, 23 March 2018, para. 7, available at: http://www.consilium.europa.eu/media/33458/23-euco-art50-guidelines.pdf.

  43. In the Guidelines of 23 March 2018 the European Council indicates that a political declaration on the overall understanding of the framework for the future relationship will be accompanying and be referred to in the Withdrawal Agreement (para. 5).

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    Ornella Porchia

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The opinions expressed in this article are in the own capacity of the author and they are based on a speech given by the author at the round table on ‘Free Movement of Workers in the post Brexit Union’, within the Conference on European Immigration Law held in Brussels on 4 May 2018 (Academy of European Law—ERA). This text was finalized on 14 September 2018.

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Porchia, O. Citizens’ rights in the post Brexit scenario. ERA Forum 19, 585–595 (2019). https://doi.org/10.1007/s12027-018-0545-0

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