On 29 May 2017, the European Commission published a draft position paper setting out its main principles for the Brexit negotiations on the rights of EU citizens. David Davis MP has described the EU demands as "ridiculously high" but, while there are clearly some highly contentious areas, there may also be some potential for common ground.
The paper highlights the challenge facing the UK Government, which has made it clear it wants to secure the status of EU citizens in the UK, and that of UK citizens in other member states, as early as possible in negotiations.
The European Commission has acknowledged that the rights of UK citizens living in other EU countries should mirror those of EU nationals in the UK. This will be of comfort to the estimated one million UK citizens living in other member states. However, it also presents a real dilemma for the UK Government, as any watering down of the rights of EU citizens in the UK will also adversely affect UK citizens living across Europe.
The European Commission is pushing for EU nationals who have resided in the UK at any point before the UK's withdrawal to keep their full rights for their lifetime, even after the UK has exited the union. This means an EU national coming to live in the UK at any time prior to March 2019 could stay beyond the withdrawal date and acquire permanent residence rights after they have lived in the UK for five years. The UK Government recognises the need for continuing rights for at least some EU nationals who arrive in the UK prior to Brexit but has not yet identified its preferred cut-off date.
One particular challenge for negotiations will be dealing with the rights of family members of EU and UK citizens. The EU paper says the rights of "current and future" family members should also be protected for life. Under EU law, family members include spouses and civil partners, as well as children and grandchildren under the age of 21 years, and dependent parents and grandparents. This would therefore protect children and grandchildren of EU nationals born after the withdrawal date but it would also mean EU nationals could bring dependent parents or grandparents to the UK to reside permanently after Brexit. Casting the net this widely is unlikely to be appealing to the UK Government.
Inconsistencies already exist between the rights of UK citizens and EU nationals to bring family members to the UK. Due to restrictions introduced by the UK Government on its own citizens, UK nationals cannot generally obtain UK visas for their non-EU dependent parents or grandparents except in exceptional circumstances. In contrast, EU law allows EU nationals from other member states to bring non-EU dependent parents and grandparents to the UK to live with them. The UK Government will likely want to put an end to this anomaly.
The European Commission paper helpfully proposes continued mutual recognition of professional qualifications obtained in the UK and other member states after the UK's withdrawal from the union. This will be welcomed by UK nationals wishing to work in the EU, and EU citizens looking to work in the UK, post-Brexit. It will also be important economically in terms of maintaining UK-EU trade after Brexit, particularly in relation to professional services.
Much more controversial are the European Commission's suggestions that it should continue to have full powers to monitor the rights of EU citizens post-Brexit, and that EU citizens should continue to be able to enforce their rights in the Court of Justice of the European Union (CJEU). The UK Government will resist any ongoing role for the Commission and has previously flagged its intention to end the jurisdiction of the CJEU in the UK. The outcome of the negotiations on this issue may provide a pointer as to the UK Government's possible approach in other areas where the ongoing involvement of EU institutions is likely to be a key demand of the EU, such as the UK's continued participation in existing EU regulatory regimes after Brexit (for more discussion of this, see our response to the Government's Brexit White Paper). The UK Government is also likely to resist the Commission's suggestion that Britain should continue to be bound by any "future amendments" to the EU rules on the coordination of social security systems for EU citizens.
The full draft position paper "Essential Principles on Citizens' Rights" can be found here: https://ec.europa.eu/commission/publications/draft-eu-position-papers-article-50-negotiations_en?cmpid=BBBXT053017_BIZ&utm_medium=email&utm_source=newsletter&utm_term=170530&utm_campaign=brexit
We will keep you posted as the negotiation progresses.