Living in the EU: a Joint Response to the UK’s Proposal
Safeguarding the Position of EU Citizens Living in the UK and UK Nationals
Living in the EU: a Joint Response to the UK’s Proposal
This paper sets out the position taken by the British in Europe Coalition and
the3million in response to the UK proposal on citizens’ rights. Briefly:
• The UK proposal does not respond to the comprehensive offer made by the EU
on 23 May to guarantee the vast majority of our rights, but instead represents an
entirely different form of offer founded in UK law.
• Given this, when comparing the two proposals, it is not possible to compare like
with like and thus the application of the principle of reciprocity is complicated.
• The proposal lacks detail on safeguarding the rights of UK citizens in the EU.
The EU offer set out in the EU negotiating directives, on the other hand, would
guarantee the vast majority of the rights that UK citizens in the EU currently have
and this should be the starting point for the UK government in its negotiations
with the EU to protect the rights of UK citizens in the EU, subject to certain
• The offer set out in the UK proposal for EU citizens in the UK represents the
substitution of acquired rights of EU citizenship under EU law, with a lesser status
of “settled status”, for which EU citizens would be required to apply.
• In particular, EU citizens would no longer benefit from the same family
reunification rights, or the overarching principle of equal treatment.
• In addition, the position on other rights such as pensions, healthcare, rights to
work, rights of establishment and mutual recognition of qualifications as regards
both groups require clarification.
• Any definitive agreement on citizens’ rights needs to be ring-fenced from the
rest of the Article 50 negotiations if our current anxiety and uncertainty are to be
brought to an end, regardless of the outcome of the negotiations.
On 26 June the UK unveiled its proposal on safeguarding the position of EU citizens
living in the UK and UK Nationals living in the EU and this proposal was presented
to Parliament.1 We note and appreciate some of the core principles set out in the
summary proposals, in particular in paragraph 3 that:
“EU citizens who came to the UK before the EU Referendum and before the formal
Article 50 process for exiting the EU was triggered came on the basis that they
would be able to settle permanently, if they were able to build a life here. We
recognise the need to honour that expectation. The choice made in the
Referendum was about our arrangements going forward, not about unravelling
It is therefore surprising that, instead of taking the framework that exists under EU
law as regards the rights of EU citizens in the UK and proposing to incorporate it into UK law as part of the Great Repeal Bill, the UK proposal in fact sets out to do
just that – to unravel previous commitments and replace them with a UK law based
In contrast, the statement made in paragraph 4 as regards around 1.2 million UK
citizens who moved to other countries in the EU is far less reassuring:
“Over one million UK nationals have moved to other countries in the EU, and many
have built their lives there. Their ability to stay, and for life to continue much as it
does now, depends on the agreement that is reached between the UK and the EU”
The standard appears to be lower than that to be applied to EU citizens, and,
despite the confirmation that their position depends on the agreement reached
between the UK and EU, there is very little discussion of how the position of UK
citizens in the EU is to be achieved in the Proposal.
We have the following overarching general remarks as regards the proposal:
• UK law solution versus EU law proposal. The EU proposal made in the EU’s
negotiating directives of 22 May2 (the “EU negotiating directives”) and the
Essential Principles on Citizens’ Rights3 (the “Essential Principles”) set out a
comprehensive proposal to guarantee almost all the rights that UK citizens in the
EU and EU citizens in the UK currently have through their EU citizenship. The
proposal is founded in the current framework under EU law and sets out what
could be likened to a heads of agreement from which the provisions of the
Article 50 withdrawal agreement would then be prepared.
The UK proposal does not respond to that offer, but instead represents an
entirely different form of offer. Apart from some broad principles as regards the
position of UK citizens at the outset, it is a proposal rooted in UK law, dealing
with the future immigration status of EU citizens in the UK.
As such, the two proposals do not correspond, as rooted in different legal
systems and as even the framework of rights covered is different.
Since the UK did not respond to the EU offer but in effect made a counter offer
that does not correspond to the framework of the EU offer, it is very difficult to
understand how the UK envisages the application of the principle of reciprocity
in this case.
• Lack of detailed proposals as regards the rights of UK citizens in the EU.
The most noticeable omission in this proposal is that as regards how the UK will
seek to protect the rights of UK citizens in the EU. Moreover, on contrast to the
EU negotiating directives, UK citizens who lived and worked in the EU in the past
are not mentioned. The detail of the proposal focuses on the immigration status
post-Brexit of EU citizens in the UK and sets out only broad lines as regards the
rights of UK citizens in the EU. There is thus no clear explanation in the proposal
of what the UK is seeking to negotiate to protect the rights of UK citizens in the
EU and, given the mismatch between an EU law proposal to guarantee almost all
the rights of both groups and a UK proposal primarily addressing the
immigration status post-Brexit of EU citizens in the UK, simply referring to
reciprocity does not remedy this omission.
We consider that the UK should be accepting the offer made to UK citizens in
the EU’s negotiating directives subject to the clarification of the position on
rights of establishment (as regards setting up and managing undertakings) as
well as similar issues relating to students set out below under point 8 Students,
and subject to the agreement on citizens’ rights being ring-fenced from all other
aspects of the Article 50 negotiations. The UK should then guarantee all of the
same rights to EU citizens in the UK as set out in the EU proposal and offered to
UK citizens in the EU.
• Ring fencing. Any definitive agreement on citizens’ rights needs to be ringfenced
from the rest of the Article 50 negotiations if our current anxiety and
uncertainty are to be brought to an end, regardless of the outcome of the
negotiations. Objections that this is legally impossible are without foundation
and the parties should take that into account as they commence the
Ultimately, the purpose of ring-fencing is that if the parties are able to reach an
early agreement on citizens’ rights during the Article 50 negotiations, this will be
based on the consensus that such agreement is final, it is not to be re-opened
no matter what happens in the remainder of the negotiation, and that, most
significantly, it will come into force even if other aspects of the negotiations fail.
The EU could ensure this by requiring the signature of a citizens’ rights
agreement as a precondition of entering the next stage of the withdrawal
negotiation under Article 50, before discussion of the principles for future
relations between the EU and the UK.
• Cut-off date. At the moment, a date between 29 March 2017, the date on
which Article 50 was triggered, and the date the UK is due to leave the EU, is
being discussed. However, EU law applies in full in the UK until Brexit date and
thus any date earlier than that would be difficult for the UK government to justify
• Jurisdiction of the CJEU. The UK proposal states that the CJEU will not have
jurisdiction in the UK. In practice, even if the CJEU were to be accepted, this
would simply mean that, as regards EU citizens’ rights in the UK, the UK courts
would make decisions but would have the option of making a reference the
CJEU as they do now. Given the cumulated experience and case law of the
CJEU on the matters covered by the rights of both groups, the CJEU would
clearly represent the easiest and most practical option. If political constraints on
the UK government ultimately prevent this happening, there will, however,
clearly need to be some form of dispute resolution body with jurisdiction as
regards the enforcement of citizens’ rights going forward, and a way for
individuals to enforce their rights as regards the final guarantee set out in the
Article 50 withdrawal agreement. This should be for negotiation. In this regard,
we support the proposals laid out on governance transmitted to the EU27 on 28
• Confirmation of the UK proposal in the Article 50 withdrawal agreement.
The UK government has stated in the proposal that it is “ready to make
commitments in the Withdrawal Agreement which will have the status of
international law”. This is to be welcomed and goes some way to providing
assurance that the status of EU citizens already in the UK will remain unchanged
in the future. However, that presupposes a high level of detail set out in the
Withdrawal Agreement as to the arrangements in relation to that status of EU
citizens, which would then simply be copied and implemented in to national law.
Those rights set out in the Withdrawal Agreement must be implemented in
national law, and be justiciable as individual, directly effective rights in national
• Protection of rights for life. In contrast to the EU proposal in the negotiating
directives, the UK proposal does not appear to offer that the rights set out
therein will be for life.
• Ability of UK nationals to move from Member State to Member State: The
EU offer appears to continue to provide UK nationals in the EU27 with the
option of moving from Member State to Member State after Brexit to live/work
and/or change status so as to avoid UK nationals from being “locked into one
country” at the date of withdrawal. The UK offer does not address this point
because it seeks to end free movement and because EU nationals will continue
to benefit from free movement in the EU27. Thousands of UK nationals will,
however, find their ability to make a living and live with their families threatened
unless this right is continued in the withdrawal agreement.
• EEA/EFTA States. Citizens of these countries resident in the UK are not
covered, and nor are UK citizens living in those countries – they are simply left
for “discussion” in paragraph 11.
1. Equal Treatment.
At no point in the document, is there any mention of an overarching right of equal
treatment for EU citizens in the UK vis-à-vis British citizens in the UK. Currently, EU
citizens in the UK do have a right to equal treatment and the application of this
principle to EU citizens in an EU country other than their own is a fundamental
aspect of the current EU citizenship rights that EU citizens enjoy across the EU to
ensure that EU citizens are not discriminated against in comparison to nationals of
the country in which they reside. The proposal does state that “these rights will
apply to all EU citizens equally” but even that statement must be without prejudice
to the principle set out on page 3 of the proposal as regards arrangements between
the UK and Ireland. This is a significant change to the rights of EU citizens.
2. Family reunification: bringing spouses/dependents after Brexit.
The proposal as it stands would mean a reduction of the rights of EU citizens in the
UK to bring spouses and dependent family members, including elderly parents, into
the UK. This is because there are two alternative possibilities. Either the same rules
as apply currently for non-EU nationals would apply in future. This includes income
thresholds, as regards the ability to bring in a spouse as a British citizen, and the
very restrictive criteria of the adult dependent relative scheme (with which it is
virtually impossible to comply), which would apply in the case of elderly parents.
Alternatively, the proposal states, the specific post-Brexit immigration arrangement
for EU citizens who arrive after the cut-off date would apply – and it is noteworthy
that no details of what this might be are provided. It is not clear whether, but very
likely that the same rules would apply to British citizens returning from the EU post-
Brexit e.g. with EU spouses, who would then be faced with no choice but to remain
permanently in an EU country and not return to the UK, for example, to take care of
elderly parents in the UK.
In any event, since the UK has some of the most stringent rules globally as regards
family reunification, this constitutes a severe reduction of the current rights of EU
citizens in the UK (and potentially of UK citizens in the EU as well).
There will of course be many more detailed questions to consider, e.g. the position
of an EU citizen whose non-EU spouse joins him/her in the UK in the event that they
separate/divorce within less than five years, and how this would impact children of
such a couple.
Children and future children would not seem to be subject to similar restrictions,
whether or not they were born or arrived in the UK before or after the final cut-off
date applied to the arrangements.
3. “Settled status”
The permanent residence rights of EU citizens in the UK under EU law would be
exchanged for the new UK immigration status under the Byzantine UK immigration
rules of 'settled status', akin to indefinite leave to remain in the UK. This offers
a significantly reduced level of protection than their current status as EU citizens in
the UK under EU law. And the acquired rights in question are rooted in
EU/international law and as such should be protected in international law.
Moreover, EU citizens will be required to apply for UK settled status, whereas they
are in fact resident in the UK on the basis of existing, acquired rights under EU law.
The UK should in fact be simply confirming rights that have already been acquired,
which is the approach taken in the EU negotiating directives.
opposed retrospective legislation. The Directive, which confers rights of residence
forms part of UK law at present. Art. 16.4 of Directive 2004/38/EC provides, “Once
acquired, the right of permanent residence shall be lost only through absence from
the host Member State for a period exceeding two consecutive years.” The UK is
proposing a substantive unilateral amendment to that provision, which will operate
with retrospective effect because it changes for all time the terms upon which all
those EU citizens have come to live in the UK. That is not only unacceptable but
As regards the practicalities, those EU citizens in the UK who have already acquired
rights of permanent residence (PR) will be obliged to make a new application for
settled status, despite having already spent a great deal of time and money
applying for their permanent residence status. Settled status gives a lower level of
protection and yet those who have already acquired permanent residence status
would not simply acquire settled status automatically. Frankly this is perhaps the
point at which the UK position is the opposite of “generous” - to force people who
have already battled with the much-criticised UK application process for permanent
residence to go through a whole new process to secure their right to remain post
Those who can prove five years’ continuous residence would be required to apply
for UK settled status. However, there is no definition of what “continuous
residence” means in this context or whether periods of residence could be
aggregated. Moreover, details of what the proof of continuous residence should
consist of have not been provided and would need to be spelt out in detail.
Similarly, an assessment of conduct and criminality will be required but details of
what this would consist of have also not been provided. This would need to be
spelt out clearly: would it simply be matters such as suspicions as regards for
example terrorism, which fall short of crimes, or would the scope be wider? The
proposal to exclude EU nationals who are “persistent criminals” as opposed to
those convicted of serious offences carrying a sentence of imprisonment of more
than 12 months would also suggest a departure from EU norms. It may conflict with
Prime Minister May’s stated intention that families will not be separated.
Moreover, the need for the provision of biometric information to protect against
fraud is highly questionable, unnecessary, and this is not standard in other European
The ‘conduct’ and ‘proof of residence’ requirements are particularly alarming in light
of the fact that more and more local authorities are using legislation such as the
1824 Vagrancy Act to criminalize homelessness in England and Wales, and the UK
Government published updated guidance on the administrative removal of
homeless EEA citizens in 2016 (European Economic Area: administrative removal
guidance) thus enabling the UK to deport homeless EU nationals even if they were
otherwise exercising treaty rights as jobseekers or workers, or if they had arrived less
than 3 months previously4.
It is also not clear whether there may be other conditions imposed, such as a ‘Life in
the UK’ and English language test, NHS surcharge and visa fees.
There is also an anomaly, in that each family member would have to apply
separately for UK settled status. It thus appears that the child of parents
with UK settled status would not acquire UK settled status in its own right but would
have to apply for such status separately. This would introduce another burden (and
stress) on parents and their children.
The proposal states that settled status would generally be lost if a person was
absent from the UK for more than two years “unless they have strong ties here”
(paragraph 20). The two years’ absence condition is in line with current EU law
provisions on permanent residence but – and this is critical – that is a condition
applied in an entirely different context, that of free movement and the acquisition of
permanent residence. Post Brexit, a EU citizen who leaves the UK for two years will
no longer benefit from such rights and will not automatically have the right to return
to the UK and start to build up rights of permanent residence again but will have to
apply to return under UK immigration rules. This will, for example, severely restrict
the ability of mobile EU citizens to take up job postings outside the UK, which are
generally for a period of at least two years, and this cannot be good for the UK
economy. The concept of “strong ties” is presumably added to mitigate this but is
It is positive that the UK proposal states that there will be no CSI requirement but
the issue as to whether any minimum income requirement will be set is not
addressed: under these proposed new UK immigration rules, will there be an
income threshold to acquire 'settled status'? The UK proposal does not mention
one, nor does it exclude one (compared to CSI, which it does explicitly exclude).
The proposal is thus vague as regards potential income thresholds for retirees, for
those who set up their own businesses and those who are posted around the world
for work. Minimum income thresholds, if introduced, would certainly penalise
people on low wages, people in part-time employment, people on zero hours
contracts and those with disabilities, for example, who work sporadically.
4 Homelessness and criminalisation in the UK
In addition, special exemptions should be applied in the UK where, due to nonregistration
of citizens, EU citizens have acquired ‘de facto’ rights of living legally in
the UK despite being unable to prove ‘self sufficiency’ (e.g. carers) in some cases, or
to obtain PR for a variety of reasons. This would also avoid a multitude of lengthy
tribunal cases, as the current PR refusal rate of over 30% indicates could result.
In conclusion, we do not consider that EU citizens should be required to seek a new
UK status of settled status, which is inferior to the current acquired rights of
permanent residence that EU citizens who have lived in the UK for five years have.
4. Grace period.
The UK proposal states that there will be no cliff edge and that EU citizens will have
a grace period within which to regularise their status.
The grace period has yet to be defined, both its length, and its commencement
date, and is thus uncertain.
The period of blanket residence permission proposed would apply to all existing
lawful EU residents and their families, rather than to all EU citizens in the UK at that
point (paragraph 24). There is no detail in the proposal as regards how this concept
of “existing lawful EU residents” will be applied, and it could give rise to many
issues in practice, in respect of work, benefits, housing, banking and all aspects of
life e.g. the need to prove to employers or potential employers that one is actually a
lawful EU resident during the grace period. Given that it appears that there will be
no need to apply for documentation proving that an EU citizen benefits from the
blanket residence permission (see also paragraph 24), how would anyone be able to
prove their entitlement and will UK employers, landlords etc. not be inclined to
refuse EU citizens for fear of breaking the law by offering a job or home to an illegal
Also, on a purely practical note, two years seems to be an optimistic timeframe in
which to deal with the numbers of people concerned. This is not least since the UK
proposes to set up a digital streamlined process to deal with the applications
involved, and this system needs to be planned, put out to tender, subject to
procurement procedures, and then implemented, and checked for problems, before
that process can commence. In other words, there could be gaps as regards the
immigration status of EU citizens, and resulting problems in respect of work,
benefits, housing, banking and all aspects of life. Citizens would be left without
documentation and court cases would result.
Therefore, whilst we welcome the general intention to keep fees reasonable and to
minimise the burden of documentary evidence, this proposal for a grace period and
temporary leave status prior to UK settled status is not fit for purpose.
We are also aware of the challenges faced by the Home Office in dealing with
current applications of EU citizens and 3rd country nationals.
We therefore suggest that a simple system of certification of the existing permanent
residence status under EU law be introduced for all citizens living in the UK at the
point of exit.
As regards benefits, a first general point concerns entitlement to benefits before EU
citizens have “regularised” their status. This is a question of proof, and no details as
to how that entitlement could be proved without a document evidencing settled
status or temporary leave to remain are set out in the proposal. We also wish to
raise the following specific points (although there will be many other points of
a. Aggregated Pension system. The aggregation of contributions proposed in the
UK paper seems only to apply to contributions accrued pre-Brexit. This raises
the issue of what happens to post-Brexit contributions for those who are already
aggregating where there are minimum amounts/periods of contributions in
order to be entitled to any pension or other benefit. There is also no detail on
how the UK will seek to protect the overarching aggregated pension system
entitlements that exist currently under EU law for both UK citizens in the EU and
EU citizens in the UK, as this will be subject to negotiation.
b. Pensions uprating. We welcome the confirmation that the UK “intends to
continue to export and uprate the UK State Pension within the EU, subject to
reciprocity”. However, we would welcome clarification on what “subject to
reciprocity” means in this context in concrete terms.
c. Healthcare. The proposal states that the UK “will seek to protect” the current
healthcare arrangements under EU and UK law for UK nationals in the EU and EU
nationals in the UK “who benefit from these arrangements before the specified
date”. This statement begs a number of questions. In the first case, the
wording is vague “seek to protect” rather than guarantee, and there is no detail
about what the UK will seek to protect (the entire system, parts of the system?).
The EU negotiating directives, on the other hand, are very clear about
maintaining the framework of Regulation 883/2004 and the implementing
Regulation, 987/2009. Second, the final phrase “who benefit from these
arrangements before the specified date” could potentially rule out large
numbers of e.g. UK citizens from the application of the deal negotiated on
healthcare, in particular, those who have not yet retired before the cut-off date,
or those who currently depend on a retired spouse’s S1 card and will only
receive their own on retirement. Third, it is not clear in general how future
healthcare arrangements will impact family members of UK and EU citizens who
do not have access to healthcare in their own right in the country where they are
d. EHIC system. One of the aspects of the healthcare system that the UK seeks to
protect is outside the scope of these Article 50 negotiations, as it relates to the
future rights of tourists to benefit from the EHIC scheme, who are not UK citizens
already resident in the EU 27. There is also no justification for detailed
proposals on this aspect, while leaving out the details of what type of reciprocal
healthcare system is to be protected as regards UK citizens currently resident in
e. Exporting benefits. It is not clear why EU citizens who are already in the UK or
UK citizens who are already in the EU but not yet exporting benefits should not
have the right to do so in future.
f. Future changes. Future changes to the social security arrangements are not
covered in the UK proposal, while they are in the EU proposal.
g. It is also not clear whether the UK wishes to continue to participate in the
coordinating mechanism for social security benefits or to negotiate 27 bilateral
agreements with the EU27 (see paragraph 43).
There is very little detail in the UK proposal dealing with the concerns of working
people. This includes rights to work, rights of establishment and mutual recognition
The latter rights are included briefly in a section entitled “economic and other
relevant rights”. However, it is important to recognise that the freedom of
establishment and mutual recognition of qualifications we are referring to here are
rights of the individual citizen, and thus not purely economic rights or rights of a
Thus it is the individual who is guaranteed the right of establishment by Art. 49
(“nationals of a Member State” in the wording of the Article). Art. 49 creates both a
prohibition and a right. The prohibition is against Member States adopting
restrictions that discriminate against individuals who are not nationals of that State in
relation to the setting up and running of undertakings, such as companies. The right
conferred on these individuals is to run such undertakings on equal terms with
nationals of the host State. It is these EU rights of individuals who have already
moved cross-Channel that we seek to protect.
Similarly, mutual recognition of qualifications is a right from which individuals in
these two groups benefit, and this is expressly recognised in the EU negotiating
directives, which would protect qualifications that citizens have “in personam”.
It is also unclear how the UK would consider EU citizens who lived and worked in the
UK in the past, or what they would seek to achieve for UK citizens who lived and
worked in the EU in the past, or how vested rights would be directly enforceable.
a. Mutual recognition of qualifications. The wording is vague and sets out general
aims without any detail. The aim is to “seek to ensure”, rather than guarantee.
Moreover, the UK “will also give due regard to these professionals’ ability to
practise without unfair detriment or discrimination” rather than guarantee this,
and, as we noted above, there is no general principle of equal treatment
proposed to provide a general remedy in the case of unfair discrimination.
b. Right of establishment/Self-employment. Issues as regards self-employment and
rights of establishment generally are to be negotiated and the UK proposal
simply states, without further detail, that the UK will seek to protect them for
“EU citizens in the UK before the specified date and vice versa”. There is no real
detail on how the UK government will deal with self-employment for EU citizens
in the UK in terms of their rights or status in the UK e.g. specific rules such as
regards minimum income, etc. To those people who have moved countries in
order to pursue a career through self-employment, or the medium of
establishing a company or other legal entity, it is essential that they should be
able to continue to do so. Their right under EU law to follow this course is
guaranteed by Art. 49 TFEU. Many of course will be providing employment to
citizens of their host country through this means. Again, the wording is not
clear, as the UK government simply states that it will “seek to protect” the right
of establishment for EU citizens in the UK and vice versa, rather than to
c. Cross-border working. There is also reference to seeking to protect the right to
provide cross-border services although it is unclear whether this means crossborder
working in general. The right of EU citizens’ to continue to provide crossborder
services in the UK, e.g. the various directives on the rights of professions
to practise in other EU countries is not even mentioned and thus does not
appear to be covered, and note the points made above on mutual recognition
7. Voting rights.
There is no mention of voting rights in this proposal at all, and it appears that this is
another area in which settled status for EU citizens in the UK will differ from
citizenship. Likewise, there is no mention of seeking to guarantee continuing voting
rights, at least at local and European level, for UK citizens in the EU. This is also an
area that is not addressed by the EU negotiating directives.
The position of students is unclear. This affects both UK citizens resident in the EU
and EU citizens in the UK. UK citizens who go to the UK from their EU residence to
study pre- and post-Brexit face issues as regards their permanent residence status,
while the same would be true regarding EU citizens in the UK who leave to study in
the EU. There are also issues concerning fees and the recognition of qualifications,
particularly for students who are UK citizens from EU countries. In general, there is
very little consideration of the position of young UK citizens resident in EU countries
now embarking on their studies in the UK or EU 27 countries.
There also seems to be no right to stay on to seek work after degree, in contrast to
the position set out in the EU’s Essential Principles on Citizens’ Rights document.
Not does there appear to be any right to stay on to do further studies, for example,
a Masters or a PhD.
British in Europe the3million
1 July 2017