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Crucial that Brexit talks resolve issue of UK/EU citizens’ rights, expert says

(21 June 2017)

As Brexit negotiations between the UK and EU continue, one of the key areas for discussion will be citizens’ rights.

Professor Eleanor Spaventa, at Durham Law School, addressed the European Parliament’s Committee on Petitions about the potential impact of Brexit on the rights of UK and EU citizens to live and work in each area.

Her report to the Committee, written for Policy Department C of the European Parliament, can be read here.

In the Q&A below, Professor Spaventa, who is Director of the Durham European Law Institute, explains the key issues.

Q: What does your report look at?

A: The report looks at the changes that will occur post-Brexit for EU and UK citizens. In particular it focusses on the right to reside for UK citizens in the rest of the EU, and for EU citizens in the UK. It identifies risks in the absence of an agreement and it makes policy suggestions to address those risks.

Q: What rights do people currently have under EU membership?

A: EU citizens have a right to move and reside anywhere in the EU; they also have a right to work and/or exercise an economic activity in a self-employed capacity. Family members of EU citizens are also protected, even when they are not EU citizens.

For residence longer than three months this right is conditional upon either being economically active (ie being a worker or self-employed) or on the citizen having sufficient resources and comprehensive health insurance so as not to become a burden on the host welfare society.

Lawfully resident EU citizens (including UK citizens in the EU) also have a right to equal treatment and after five years they obtain a right to permanent residence. Permanent residents no longer have to satisfy any condition, ie do not need to be economically active or have sufficient resources and comprehensive health insurance, and are treated for most issues as own nationals.

Q: What impact could Brexit have on people’s rights?

A: Without an agreement UK citizens might be subjected to immigration rules, including visa requirements. They might need work permits in order to work in another EU country. The same is true for EU citizens wishing to come and live in the UK post-Brexit.

Q: What could be the impact of Brexit on the rights of UK citizens living in the EU and vice-versa?

A: If no deal is reached, then EU citizens in the UK are particularly at risk. We could see the imposition of visa requirements and minimum income/investment requirements, including for pensioners and even for EU citizens already in the UK at the time of Brexit.

UK citizens in the EU might face similar issues unless they are treated in a special way due to their former status as EU citizens (the route advocated in the report). Family members would also be at risk.

Q: How important is it that these issues are resolved as part of the wider Brexit negotiations?

A: It is crucial that the Brexit negotiations settle those matters as soon as possible.

This is the case for three reasons: First of all, UK citizens in the EU and EU citizens in the UK have moved in good faith, exercising rights conferred directly by EU law. They should therefore be fully protected, and more vulnerable citizens, like pensioners and part-time workers, should also be protected by the deal.

Secondly, in the UK, the uncertainty as to the immigration status of existing and new EU migrants has a detrimental effect on employers who, at present, do not know what will happen to their EU workforce.

Finally, in the UK this might also cause problems recruiting pre-Brexit, and a reverse brain drain, where highly skilled EU workers decide to leave because of the uncertainty as to their future status. Universities and the NHS are particularly at risk.

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