What status is planned, with what rights attached, what enforcement mechanism and how will reciprocation work?

The European Parliament’s Brexit coordinator, Guy Verhofstadt, has already suggested that the parliament will veto the whole Brexit deal unless the UK’s offer on citizens’ rights is improved, raising the prospect of a ‘no deal’ Brexit.

The minimalist nature of the UK proposals very much look like what might be expected in the event of a ‘no deal’ Brexit anyway. One would hope the UK was surely never going to expel 3 million EU citizens resident in the UK.

What status is on offer?

The EU has already made public its own comprehensive proposals, which are essentially to preserve EU law rights for citizens of the EU in the UK and of the UK in the EU alike, with enforcement of rights through the Court of Justice of the European Union. Self-evidently, that EU proposal would guarantee and protect all existing rights of all citizens.

The UK proposal falls very considerably short of that, proposing merely to enable EU nationals in the UK to apply for Indefinite Leave to Remain (ILR) under UK law.

Not all EU citizens would be eligible, though. Those who have not acquired five years of residence would have to build up the five years first before being eligible for ILR. Those who arrived in the UK after 29 March 2017, the date that Art 50 was triggered, might never be eligible for ILR and would have to apply under whatever UK immigration rules are put in place after Brexit. They may well have to leave, in short.

Those EU citizens who were concerned about their status and waded through the notorious bureaucracy to apply for permanent residence documents before or since the referendum will have to make a new application.

After a two-year ‘grace period’ expires, a failure to have applied for this new status will leave the EU citizen concerned illegally resident. Such a person will be committing a criminal offence under the Immigration Act 1971.

ILR is lost automatically by operation of law after a two-year absence from the UK. There would be no exemption for EU citizens, no matter how long they have lived in the UK.

Family reunion rights under EU law would also be lost and EU nationals would have to rely on the same highly restrictive family reunion rules as British citizens, recently evaluated by the Migration Integration Policy Index as the most restrictive in the developed world.

EU nationals who apply successfully will be issued a biometric ‘residence document’. This de facto identity card will be needed to access health care, employment, housing, banking services and more.

In short, EU citizens already living in the UK would be treated identically to other foreign nationals settled in the UK.

What are the proposed rights?

Speaking as an experienced immigration lawyer, it is hard to see what additional rights over and above the existing rights attached to ILR are being proposed for EU citizens. It rather looks as if every single EU law right would, in fact, be lost.

A person with ILR has access to the NHS and to welfare benefits. This is all that is really on offer to EU citizens, although the UK proposal does also propose measures to ensure accrued pension rights are protected.

Those who have started exporting UK benefits abroad before the ‘cut-off date’ would be able to continue doing so. The EU had agreed to end this arrangement as part of David Cameron’s pre referendum renegotiation, so it is slightly surprising to see the UK is now willing to continue this practice.

One arguable improvement is that the UK is proposing to drop the need for EU citizens to have comprehensive sickness insurance in order to qualify for residence. The UK position is controversial, though. The Court of Appeal upheld the government view that access to the NHS does not count in EU law in the case of Ahmad v SSHD [2014] EWCA Civ 988, but the EU Commission disagrees and has been pursuing infringement action against the UK.

Irish citizens will not be affected and will not need to apply for the new status.

How will future status be protected and enforced?

The proposal suggests that the agreement ‘will have status of international law’ but, as expected, the Court of Justice of the European Union would not have jurisdiction in the UK. It remains to be seen whether this will be deemed acceptable by the remaining members of the EU.

In fact, the UK proposal includes reference to no mechanism for either judging whether the agreed rights have been breached in some way or ordering enforcement of the originally agreed rights. It is thought the UK is looking to avoid any right of individual petition by affected individuals.

This is why the EU is very keen to involve the Court of Justice. Without the Court of Justice or a comparable mechanism, such as the EFTA court, the agreed rights are barely worth the back of the envelope on which they are written.

If these rights are enshrined only in UK law, the UK Parliament could unilaterally legislate at any time to amend or remove them. This might be dismissed by politicians in public as being fanciful, but it is not at all hard to imagine a future government seeking to water down rights in response to perceived public pressure.

And this cuts both ways; without an adjudication and enforcement mechanism in place, the rights of UK citizens will not be secure either. The UK proposal would in effect abandon British citizens abroad.

What about British nationals in the EU?

Despite its title, which includes ‘UK Nationals living in the EU’, the document says very little indeed about the rights of UK nationals.

It is suggested that British citizens in the UK ‘must be able to attain a right equivalent to settled status in the country in which they reside’ and that they ‘must be able to continue to access benefits and services’.

How does the UK expect the reciprocal rights to be legally encoded at the EU end of things, and how does the UK expect such rights to be enforced? We know not. Is the UK proposing a new EU law Directive or Regulation applying only to UK citizens? This would be unprecedented, and it really is not for the UK to tell the EU to legislate on this. Also, this would be grossly asymmetric. If the rights of UK citizens in the EU were encoded in EU law, UK citizens in the EU would have the protection of the CJEU but EU citizens in the UK would not.

We have to read between the lines, but it looks like the UK envisages British citizens being given an opportunity in each and every country in which they reside to apply for local immigration status under the laws of the relevant country. This is what the UK proposes for EU citizens, after all.

If there were some future breach of the agreement by any one of the 27 remaining member states, British citizens would be powerless to enforce the agreement and the UK would be unable to intervene in any meaningful way.

British citizens in the EU would essentially be cut adrift.

Putting anxiety to rest?

In her statement to Parliament of 26 June, the Prime Minister said she wanted to ‘put to rest’ the anxiety of EU citizens in the UK. Given that the anxiety was caused by Theresa May’s refusal to give any minimum guarantees, some might think this statement a little rich.

It may be some reassurance to EU citizens to know that there is no plan to deport them all in what would otherwise be the biggest mass expulsion of population since 1290, when Edward I infamously ordered the Jews of England into exile.

It is no reassurance to British citizens in the EU, though, who still have no idea what might be their fate when Brexit occurs. They are probably protected in EU law to some extent by the EU’s long-term residents Directive (which the UK opted out of) but the UK position is causing huge anxiety in the migrant British community.

Contributor Colin Yeo, Garden Court Chambers