Citizens' rights

What are the two sides’ opening positions and how do they disagree?

Issue

EU position

UK position

How do they disagree?

Who does the offer apply to?

UK citizens who are or have been resident in the EU.

EU citizens who are or have been resident in the UK.

EU citizens resident in the UK. But asks for reciprocity. 

Both offers are intended to apply to both EU citizens in the UK and UK citizens living in the EU.

The UK offer does not cover EU citizens who lived in the UK previously, but the EU offer would.

What rights would individuals be entitled to?

Continuation of current rights of EU citizenship – including the associated rights detailed in EU law.

EU citizens living in the UK would be entitled to the same rights as UK citizens.

Rights would expire for those who move outside the UK for more than two years.

The EU says it wants its citizens to be entitled to the same rights as UK citizens, with no mention of expiration.

Are family members covered?

Yes.

Any current or future family member of the individual, regardless of their nationality.

Family members retain rights in divorce, death or if the individual leaves the country.

Yes, but only if they arrive before the ‘cut-off’ date.

Family members arriving after the UK’s exit from the EU will be subject to more stringent rules for family members who join British citizens, who have to satisfy income requirements.

Wording suggests there could even be a separate regime for EU nationals, with fewer rights than British citizens.

If EU nationals are subject to the UK’s more stringent rules on family members, they will be losing rights. This is something the EU will want to avoid.

But the UK position will be difficult to change – it requires either EU nationals having more rights than UK citizens or changing the rules for UK citizens.

What is the ‘cut-off’ date? *

The date the Withdrawal Agreement comes into force. This is currently 29 March 2019.

No sooner than 29 March 2017 (the day Article 50 was triggered) and no later than 29 March 2019 (the current date for the UK’s withdrawal).

The UK may try to make the ‘cut off’ date sooner than the EU’s proposal, but it appears open to compromise.

Is there a qualifying period?

No.

This applies to those who are resident or have been resident on the cut-off date, however long they have been a resident.

Yes – five years of ‘continuous residence’.

Those resident before the ‘cut-off’ date but yet to accrue five years’ residence will be given ‘temporary status’ until they reach the five-year point.

The EU’s offer is more generous, with no qualifying period required. The UK wants to retain the five-year period, but their offer of temporary status ensures it does not become too obstructive.

The EU will be nervous about the interpretation of ‘continuous residence’ and the burden of proof placed on applicants.

What about if you only work, not live in the UK/EU?

UK citizens who work or have worked in the EU on cut-off date.

EU citizens who work or have worked in the UK on the ‘cut-off’ date.

No reference.

Not clear. No reference in the UK proposal of 'frontier workers'.

What about students?

Students resident at the ‘cut-off’ date can become a ‘worker’ without having to apply for new status, and the years spent as a student count towards the five years’ residence.

Students will continue to be eligible for ‘home fee’ status, PhD studentships and will have right to remain for the duration of their course.

It is not clear whether they are entitled to stay in the country to work after completing their course.

The UK needs to clarify the status of EU nationals who finish their course after the ‘cut-off’ date.

What about the export of benefits?

This is also covered.

Citizens retain entitlement to any pension or benefits if they live abroad.

This is also covered.

Recipients living abroad at the point of Brexit will be allowed to ‘export’ their benefits, and pensions will be uprated.

It was touted as a possible flashpoint, but the UK proposal instead includes the right to export benefits.

What documentation will be required?

 

None required to be considered legally resident.

Any documents issued should be free or no more expensive than the cost of a similar service for nationals.

‘Settled status’ documentation will be required to carry on living in the UK lawfully.

Those with permanent residence will be expected to apply for the new scheme, but there is no need to apply before the UK’s formal exit from the EU.

The EU’s desire for no documentation is difficult to administer and enforce, so it is unlikely to be a major sticking point.

Streamlined process shows the UK coming closer to the EU’s position, but the EU may seek further concession.

The UK requires application for status, whereas the EU want something declaratory.​

What is the legal status on offer?

Permanent residence would be available after five years’ residence, as per current rules.

A new legal status of ‘settled status’ will be created, with less burdensome eligibility criteria. For example, Comprehensive Sickness Insurance will no longer be required.

A temporary status will be created for those who arrive before the ‘cut-off’ date but have not acquired five years' continuous residence by the time the UK’s ‘grace period’ ends.

The EU is unlikely to be opposed the new status in principle, but negotiations will depend on the detail of what is covered in the new status.

How long will the rights last?

The rights are passed on to future family members in perpetuity.

Rights will be part of a new ‘settled status’, created in UK law.

Children of those eligible for ‘settled status’ will also be eligible for the status, but children of nationals not yet eligible would also need to apply for temporary status.

The UK will want a more restrictive approach than the EU’s proposal.

The EU will be nervous of rights being enshrined in UK law, making it possible for a future UK government to unilaterally change the rights of EU citizens resident in the UK. ​

Who enforces it?

European Court of Justice, monitored by the European Commission.

The withdrawal agreement has direct effect in domestic courts of the EU-27 and UK.

UK legal system, up to and including the Supreme Court. Commission monitors in EU and UK sets up its own body to monitor.

The withdrawal agreement does not have direct effect, UK courts can ‘have regard’ to it.

Enforcement will be a key flashpoint.

The Brexit Secretary David Davis mentioned a possible compromise in the shape of an ‘arbitration arrangement’.

Whether the withdrawal agreement has  ‘direct effect’ is also likely to be contentious in other areas.​

*The date on which you must be resident to be eligible for the offer. Cut-off dates may also require qualifying periods.

 

Update date: 
Thursday, August 10, 2017 - 12:15