Self-styled champion of all EU citizens, the European Parliament has warned that it may veto the UK’s withdrawal agreement from the EU. A public letter penned on July 9 by its lead Brexit negotiator Guy Verhofstadt and a group of cross-party MEPs stated:
The European Union has a common mission to extend, enhance and expand rights, not reduce them … 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.
Despite arguments that a unilateral offer to protect the rights of EU citizens would constitute both a gesture of goodwill and a politically astute move, on June 26 the UK government elected to make an offer conditional on reciprocity. The details of what this means for EU citizens living in the UK after Brexit are vague. The position for UK nationals living in the rest of the EU is even more so.
The UK government’s policy paper on the issue largely focuses on what is on offer for EU citizens in the UK. Our conclusions on how this translates to UK nationals elsewhere in the EU are derived from what reciprocating the UK’s offer would mean.
What the UK is offering
On a handful of issues, the UK’s proposal provides some detail as to what UK nationals living in the other 27 EU member states (EU-27) can expect. For example, the 21% who are over 65-years-old will be relieved to learn that it has committed to continuing to “export and uprate the UK state pension within the EU”. This implies that their pensions will not be frozen, but will be increased in line with pension increases in the UK.
It also intends to maintain its position on child benefit, meaning UK citizens will still be able to claim the child benefits to which they are entitled when they live abroad. For those UK citizens undertaking education in another EU country, their right to remain in the country will apply until course completion. Those with residence rights will also have the same access to tuition fees and any maintenance grants as the host country’s nationals.
Healthcare poses greater complexities. The UK proposes a new arrangement “akin to the EHIC [European Health Insurance Card] scheme”, which entitles those covered by their home NHS to medical treatment in another EU country. But given that all EU and non-EU states currently party to the EHIC scheme also have some form of free movement agreement, this suggestion must be in the category of having your cake and eating it.
The UK’s proposal does not, however, address numerous other issues, including equal access to housing, equal tax benefits, and whether UK citizens will be allowed to reside in an EU-27 country after Brexit.
What the logic of reciprocity means
The UK’s proposal rejects the “acquired rights” approach of the EU stance. Instead, the UK government ultimately seeks to align the status and processing of EU nationals with its national immigration law. This will follow a cut-off date and grace period (as yet unspecified) after which EU citizens living in the UK will be subject to the same rules as non-EU citizens.
Disputes would be settled through national courts without any protection from a supranational authority, such as the EU’s Court of Justice. It would be significantly more difficult for EU citizens to enforce their residence and other rights than at present.
If the EU-27 were to reciprocate the offer, UK citizens in the EU-27 would also become subject to their host country’s immigration laws. This means they will have what’s called “third country national” (TCN) status. This carries rights in EU law.
The EU’s Long-Term Residence (LTR) Directive provides legal protection to some TCNs and governs the scheme by which they can acquire long-term residence status. Under the directive, this status must be granted where certain conditions are met.
Of course, national authorities retain some discretion and some residence matters, such as healthcare entitlements, may be devolved to regional or local level. TCNs with long-term residence status must in many respects be treated equally to nationals by their host country. For example, they have equal access to employment, self-employment, recognition of their qualifications, tax benefits and pensions.
Long-term residency has been described as a “subsidiary form of EU citizenship”, but it does not have all the perks of the full version. States can confine social assistance for long-term residents to core benefits, such as care for pregnant women, and can restrict some access to employment.
Comparisons with the EU proposal
The EU proposal is a better offer for UK citizens resident in the EU-27 than long-term residence status would be. That is not a surprise – the EU wants to protect its 3.2m citizens in the UK, and offers something more than TCN status to the 1.2m UK citizens in the rest of the EU. The EU proposal includes additional protections exclusive to EU citizens, such as social security coordination rules and supplementary rights for the free movement of workers.
Under either the EU proposal or as long-term residents, UK nationals in the EU-27 come out relatively unscathed. Nevertheless, while the gap between these two options is noticeable, it is far from the chasm between EU citizens’ current position in the UK and the UK’s proposals for their post-Brexit future.
If the polls are to be believed and 60% of UK nationals want to keep their EU citizenship, the UK government has a greater stake in this than its comparably lukewarm proposals suggest. And the stake is greater still if the cost is “crashing out” of the EU without a withdrawal agreement at all.
Tamara Hervey receives funding from the Economic and Social Research Council (Brexit Priority Grant ES/R002053/1). She has previously received funding from the European Commission.
She was a member of the Advisory Board of ‘Healthier In’, a campaign group in the EU referendum debate.
Sarah McCloskey is working as a research assistant with Tamara on a project about the legal implications of Brexit.