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Citizens’ rights: update after fourth round of Brexit negotiations

Citizens’ rights: update after fourth round of Brexit negotiations

The fourth round of Brexit negotiations are over, with some signs of progress on the future status of EU citizens living in the UK.

At the end of August, the EU-UK joint comparison of negotiating positions on citizens’ rights showed some 30 issues highlighted in red, indicating no agreement. This has been cut by about half in the latest document, showing the position at the end of September.

Enforcement: “direct effect” conceded, CJEU jurisdiction not

Both the Brexit Secretary, for the UK, and the European Commission chief negotiator, for the EU, hailed as significant the UK commitment to

incorporate the Withdrawal Agreement fully into UK law and ensure the UK courts can refer directly to it.

David Davis and Michel Barnier referred to this as “direct effect”, which last month was explicitly ruled out. The latter added:

This is very important.

It will give the assurance to our citizens that they will be able to invoke their rights, as defined by the Withdrawal Agreement, before UK courts.

However, it remains unclear what price “direct effect” once the supremacy of EU law no longer applies. 

Simply writing a withdrawal agreement into UK legislation does not protect it from subsequent repeal.

Furthermore, as we pointed out in the aftermath of the Prime Minister’s Florence speech, the Court of Justice red line remains very much intact. As Davis put it,

The UK has been clear that, as a third country outside of the European Union, it would not be right for this role to be performed by the European Court of Justice.

Barnier, for his part, insists that “the European Court of Justice must play an indispensable role”. This remains a “stumbling block”. The most optimistic view is that this language represents a climbdown from previous insistence than the CJEU have “full jurisdiction”.

Progress on costs and process for ‘settled status’

The UK offer on the procedure for those with existing permanent residence documents to get the new ‘settled status’ (actually Indefinite Leave to Remain) has been significantly improved. It now reads:

Streamlined process and reduced or no costs for current holders of permanent residence documents to exchange for updated UK documentation. This will simply entail verification of ID, a criminality check and confirmation of ongoing residence, in recognition of the fact that they have already been through a process assessing their qualifying residence period.

The issue is still marked red in the joint comparison document, as this still falls short of the EU demand that “citizens shall be considered legally resident even if they do not hold a residence document evidencing that right”.

The UK proposal to impose an additional “ongoing residence” test on holders of permanent residence is also potentially problematic. If this involves excluding from “settled status” holders of permanent residence with a certain number of absent days from the UK over a time period leading up to Brexit (say over 6 months of absences in the final year, for example), quite a few individuals who thought they had secure UK residency will find that they have not, even though they did previously have permanent residence.

The joint comparison document also offers more information on the UK’s proposed application process for EU residents without permanent residence status already:

UK presented initial thinking on a streamlined, user-friendly, digital application process, which draws on existing government data to minimise the burden of documentary evidence required. UK content to continue to consult EU on proposed procedures and also to maintain a dialogue with the EU on any changes in procedures affecting UK nationals in the EU.

Nevertheless Barnier identifies this as another stumbling block, saying that “we are looking forward, David, to hearing the details about this new system”.

Family reunification rights still a sticking point

As Davis said at the weekend, the UK position is that EU citizens should not retain their more favourable treatment when it comes to family reunification. Instead, as Colin has put it, “EU nationals would have to rely on the same appalling family reunion rules as British citizens, recently adjudged the most restrictive in the developed world”.

The UK offer on this is summarised in this joint comparison document as follows:

Equal treatment as between EU and British citizens as regards applicable rules.

Future family members will be subject to the same rules that apply to non-EU nationals joining British citizens, or alternatively to the post-exit immigration arrangements for the EU citizens who arrive after the specified date.

Children born to an EU citizen parent with settled status in the UK after the date of withdrawal will be eligible to immediately acquire settled status or British citizenship if born in UK as an independent right holder.

The EU riposte is that “This is an issue of preserving rights under EU law and not an issue of equal treatment”. As Barnier badly puts it,

A big gap remains between our positions on family reunification. We want existing rights to continue for the citizens concerned.

Social security: child benefit may prove fly in the ointment

A positive spin on this from Davis, but a gloomier one from Barnier. The former noted that “we have have agreed most aspects of social security coordination”, but the Frenchman focused on the outstanding area of disagreement: the export of non-pension benefits.

Most other aspects of social security were already listed green in August. This outstanding issue includes the politically toxic subject of exporting child benefit. Child benefit claimed in the UK for children in other EU countries represents a tiny fraction of total spending, but it nevertheless represents a totemic issue for some Brexit supporters. So Barnier may be right to fret about it.

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