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Education e-briefing: Citizens’ rights and Brexit: significant agreement reached

  • United Kingdom
  • Education - Briefings

12-12-2017

The Commission announced on 8th December that it considers sufficient progress has been made regarding negotiations in respect of citizens’ rights in order for trade discussions to commence.

Immigration law has been a distinct area of difference between the UK Government and the European Commission in negotiations regarding Brexit. The Government intends that, from March 2021, domestic immigration law will apply to applications made by citizens of EU countries to live and work in the UK, whilst the Commission has sought these rights to continue to be subject to European Union law and jurisdiction. A compromise between these positions seems to have been reached.

The Joint Technical Note on the comparison of EU-UK positions on citizens' rights of 8th December confirms the majority of issues are now resolved.. Areas which were previously unclear but on which there is now agreement are the following:

•the effective date by which such rights must be first exercised is to be the day the UK leaves the European Union; this means that EU citizens in the UK before 29 March 2019 will have the ability to stay in the UK beyond Brexit on the agreed terms

•EU citizens who arrive in the UK by 29 March 2019 and have been continuously and lawfully living in the UK for 5 years by that date will be able to apply to stay indefinitely by obtaining settled status

•EU citizens who arrive in the UK by 29 March 2019, but will not have been lawfully living in the UK for 5 years when the UK leaves the EU, will be able to apply to stay until they have reached the 5-year threshold. They can then also apply for settled status

•provisions are agreed about the rights of dependants of EU citizens: future spouses and children born after the withdrawal date will continuing to qualify, but national law will apply to more extended family members e.g. common law spouses

•permanent residence will not be lost by EU citizens unless they have been absent from the UK for five consecutive years

•the agreement allows a registration system to be introduced by the UK Government which obliges most EU citizens to seek confirmation of their right to live and work in the UK: the system must be open for at least two years after the date of withdrawal, be straightforward and objective, apply proportionality and use no criteria outside this Agreement

•those who already hold a Permanent Residence document may convert this to the new immigration status of Settled Status subject only to a check on identity, criminality, security and continued residence and no additional requirements may be introduced

•UK courts will decide on the applicability of European law to these decisions, but will apply decisions of the Court of Justice of the European Union to such rights. They may continue to refer questions to the Court of Justice for a period of eight years.

It is important to note, however, that any agreement will not be binding until legislation has been passed. In this regard the joint report issued by the EU and UK Government negotiators on 8th December 2017 states that the UK Government will bring forward a Bill, the Withdrawal Agreement and Implementation Bill, which will make express reference to the agreement reached and will fully incorporate the citizens' rights part into UK law. Once this Bill has been adopted, the provisions of the citizens' rights part will have effect in primary legislation and will prevail over inconsistent or incompatible legislation, unless Parliament expressly repeals this Act in future. The Withdrawal Agreement will also be binding upon the institutions of the EU and on its Member States.

The joint report also states that it has agreed by the UK Government on the condition of an overall agreement under Article 50 on the UK's withdrawal, taking into account the framework for the future relationship, including an agreement as early as possible in 2018 on transitional arrangements.

As far as UK citizens working in the EU are concerned, the joint report states that the overall objective of the Withdrawal Agreement, with respect to citizens' rights, is to provide reciprocal protection for EU and UK citizens, to enable the effective exercise of rights derived from EU law and based on past life choices, where those citizens have exercised free movement rights by the specified date. In its updated guidance the Government has stated that UK nationals, as well as their family members covered by the agreement reached on 8 December 2017, who are lawfully residing in an EU27 Member State by 29 March 2019, will be able to continue to reside in that Member State. The position in respect of those who may wish to move to different EU countries after that date has not been agreed and, as with the detail of several provisions, is to be discussed further.  

Employment law after Brexit?

The announcement outlined above does not address UK employment law, as opposed to citizens’ rights, after Brexit. However, the EU Council meeting later this week might provide further information as to the terms of any two year transition period, including whether the UK would be expected to apply existing and new EU employment law during that period.

The Education team at Eversheds Sutherland has substantial experience in helping institutions plan for the immigration consequences of Brexit. We have conducted numerous meetings at institutions in the past sixteen months including advice to large groups of employees and workshops to help them prepare immigration applications. On the basis of such meetings, we have helped several institutions to provide advice and support to staff by collating answers to frequently asked questions, providing materials and assisting HR teams in formulating policy. In view of these clear indications of the Government’s likely approach to citizens’ rights, institutions may consider this a suitable time to assess the provision of such support to employees.

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