Theresa May has chosen Firenze as the location for her next BREXIT speech on Friday 22nd September. British in Italy are organising members to make their voices heard at the venue on Friday 22nd September.

Their message is clear: “We want to show solidarity to our friends, the EU citizens in the UK, and have our own EU rights protected.”

British in Italy members have made Italy their home in most cases, and many of them feel strongly that being present on Friday 22nd September 2017 in Firenze is an important step to letting the UK Government know how strongly they feel about being left in limbo and used as bargaining chips in the BREXIT negotiations.

If you are interested in coming along, you can find out up to date details on their Facebook page HERE

They look forward to seeing you there!

Response of British in Europe and the3million to the third round of negotiations (week of August 28 2017)

Executive Summary

•  the3million and British in Europe welcome, as before, the immediate post- negotiation round briefing on the outcome with us.

•  We welcome the progress that has been made over matters such as the inclusion of frontier workers in the agenda, the aggregation of future social security contributions and the agreement on healthcare.

•  However, besides these elements of progress, almost all the concerns expressed earlier remain including, in particular, as regards the UK’s proposal of settled status and the EU’s position not to grant free movement rights to UK citizens in the EU.

Moreover, real additional concerns have arisen over:

1. The increasing and unnecessary complexity of the issue of Citizens’ Rights, which could be solved by a very much simpler approach doing justice to the position of the people this chapter seeks to protect, namely by agreeing that all EU27inUK and UKinEU27 should continue to enjoy all their existing rights.

2. The EU’s proposal that children and other family members should only be protected by the Withdrawal Agreement as long as they are dependents: the promise of lifetime protection has vanished into thin air.

3. The very narrow approach the EU continues to adopt as to the territorial extent of the rights being discussed, an approach which extends throughout the subjects under discussion in Round 3. As a result, the agreements on recognition of qualifications and economic rights do not go nearly far enough. This is linked to the issue of free movement and the points we made about this in our response to the second round.

4. The lack of clarity on what is being discussed in relation to frontier workers and healthcare.

• In addition, the recent erroneous sending of deportation letters by the Home Office to EU citizens in the UK has further increased anxiety among EU citizens and confirmed the absolute need to protect citizens’ rights exhaustively in the Withdrawal Agreement, under protection of the jurisdiction of the CJEU

• Finally, due to the overall limited progress in the Brexit negotiations, we remain particularly concerned that the issue of ring-fencing the agreement on citizens’ rights does not appear to have been discussed or to be tabled for future discussion.

 

Introduction

British in Europe and the3million welcome the consultation which has taken place with us, as representatives of the groups of citizens in both the UK and the EU27 directly affected, following this third round of the negotiations.

However, whilst David Davis says that the talks have been “productive” the view on the other side of the table is less optimistic. Michel Barnier says that whilst there have been some “useful clarifications” on a lot of points, there has been no decisive progress on the main subjects. He was very concerned that he was far from being able to recommend to the EU Council that sufficient progress had been made for the talks to be able to proceed to the next stage. This is especially worrying for us partly because it highlights the risk of there being no agreement on citizens’ rights and partly because, even if the parties can reach agreement on that, there is a real danger of no overall agreement. In spite of this, neither party has yet even begun to consider the ring-fencing of an agreement on citizens’ rights.

In this response, we follow the pattern of our response to Round 2. We will not repeat our general position or the comments in that earlier response, but instead will focus on the issues which we are told have arisen during the second substantive round of discussions. In that respect, the table of the positions adopted by each side on a list of issues (“the Table”) remains helpful but not always entirely clear1.

We do also make a series of detailed points at the end of this response concerning administrative procedures in relation to the UK’s proposal on settled status, which we would like to see taken into account during the next round.

 

A simpler, fairer solution

This round of the negotiations, whilst rightly described as technical, has concerned some issues of major importance to all those whom the3million and British in Europe represent. The Table now runs to 16 pages of detail, even though these pages incorporate by reference hundreds of pages of text of EU legislation and, in its latest revision, even case law. All this whilst each side is claiming to be concerned to protect the rights of affected citizens, with M. Barnier for the EU having said, “Brexit should not alter the nature of people’s daily lives”.

Quite apart from the sheer injustice of any other approach, would it not be so much more straightforward for everyone simply to adopt M. Barnier’s statement and resolve the transitional problem created by Brexit by agreeing that all EU27inUK and UKinEU27 should continue to enjoy all their existing rights, and that their entitlement to this status should be evidenced by a simple card acknowledging these rights?

Preserving the existing rights of EU citizens in the UK and UK citizens in the EU should not be regarded as an immigration matter. We are a finite group of mortal people who are already integrated in and contributing to the countries in which we live. It is also worth recalling that the course we advocate was that adopted on the only other occasion when a territory left the EU (or rather its predecessor) – the case of Greenland. Moreover, by virtue of rights associated with the Common Travel Area, UK and Irish citizens have reciprocal rights almost identical to their EU rights and residents of the North have the right to Irish, and thus EU, citizenship even if they have never set foot south of the border. The historic links of the UK with Eire are, of course, fully appreciated, but the UK also has a strong historic link, now 44 years old, with the European Union and its citizens. If Irish Citizens have such rights within the UK as a whole in perpetuity, then there is no reason why that finite group of EU Citizens from the other EU26 in the UK at Brexit should not be allowed to have the same rights, in exactly the same way, for the rest of their lives.

For all of us, then, both EUinUK and UKinEU, rather than turning our lives into bargaining chips of future trade negotiations, the easiest, fairest and economically most sound solution is to guarantee all our existing rights in the Withdrawal Agreement and ensure protection by the CJEU on its implementation.

1 Indeed one of the major concerns in this paper, the EU position on children and family members, a Round 2 issue which we flagged up at the time as obscure but has now been explained.

 

EU proposal in relation to children and other family members2

In our joint response to the UK proposal, we noted that we were seeking clarification of how the two proposals differed as regards the rights of children and family members. Having clarified this, the EU’s proposal for children and other family members is a radical departure not only from Michel Barnier’s statement about not altering the nature of people’s daily lives but also, in our view, from the Negotiating Directives. It has very worrying implications for UK families living in the EU27 and, because of reciprocity, for EU families in the UK.

Whilst the UK fairly proposes that children and other family members should have post-Brexit rights as an independent right holder, the EU says this should be as a family member. Clarification of this EU position has revealed the full impact of the EU’s stance. Take the example of a child born to UK parents in Spain, raised there, at school there, completely fluent in Spanish, with Spanish friends and who has never lived in the UK. Once this child, who might attain the age of 18 only a few months after Brexit, ceases to be a dependent, s/he will have no protection whatsoever under the Withdrawal Agreement. Contrast this with the Negotiating Directives’ promise that affected citizens’ “rights should be protected as directly enforceable vested rights for the life time of those concerned.”

So the EU appears to be proposing to take away the rights of a fully integrated young person whilst an adult who moves to Spain on the last flight out of the UK pre-Brexit would have fully protected rights for life. For those who say dual citizenship is the answer, this is not possible in Spain, Austria or the Netherlands. There urgently needs to be further clarity on each party’s position on this critical issue and what the consequences for young people resident in another country in the EU 28 at the date of exit will be if this position is maintained.

 2 This is a Round 2 point which we flagged in our Response at that stage but did not comment as we wanted clarification. In the light of the clarification that has been provided we have to take very serious issue with it.

 

Overview of round 3

It is clear that politics have played a very important part in this, the most technical, round of the negotiations. The EU is concerned to prevent the UK from maintaining, at this stage of the negotiations at least, access to the same benefits as it enjoyed while still a member.

We suggest, with respect, that this concern is misplaced, and the EU has drawn an inappropriately early dividing line between present rights and future relationship. This part of the negotiation is about the rights enjoyed by individual UK citizens in the EU and individual EU citizens in the UK at Brexit. The litmus test for the relevance of any issue at this stage of the negotiation should be whether it affects these rights. If so, it should be discussed now. If not, it is a matter for future discussion.

The EU’s and UK’S approach is, we assume, informed by the same thinking as that which led them in Round 2 to deny freedom of movement after Brexit to UK citizens in the EU and similar rights to EU citizens in the UK to circulate and return to the UK. In August British in Europe made detailed written representations on the topic by way of addendum to our second-round response, together with case studies which bring into clear focus the human dimension of what might appear a dry legal problem3.

This approach to freedom of movement is intrinsically linked with the current deadlock on the two-year rule which relates to the way in which the primary right to move and reside freely across the territory of the EU Member States has been implemented in Directive 38/2004 to provide for a right of permanent residence attaching to a specific Member State where an EU citizen has resided continuously for five years. The primary right to move and reside freely across territory of Member States is a direct and individual right that all EU citizens have by virtue of Article 21 TFEU while the right of permanent residence is the implementation of that primary right insecondary legislation, the 2004 Directive, which attaches to one country. The current EU approach appears to be to guarantee simply those secondary rights of residence derived from the primary right to move and reside freely, and not the primary right they derive from, which cannot be legally correct. Also, the primary right is a composite right of freedom to move and reside, while the EU position is currently only to protect rights of residence under the 2004 Directive.

As we stated in our response to round 2, the logical way for both sides to deal with this issue is to say that those who have established and retain permanent residence at any time before Brexit (including those resident before Brexit but who only achieve 5 years’ residence afterwards) should have a life-long right toreturn or that those who have exercised a right of free movement should continue to have that right. This would mean that EU citizens who have acquired, or are in the process of acquiring permanent residence pre-exit, can continue to have the right to circulate in the EU 27 or move outside the EU 27, even for more than two years, and still have a life-long right to return to the UK. UK citizens in the EU pre-exit would have similar rights to circulate freely across the EU 27 or elsewhere outside the EU 27, even for more than two years, and either return to the country of residence in the EU 27 or move and build up rights of permanent residence in another EU 27 country.

To avoid implementation issues and misunderstanding, it should also be specified in the Withdrawal Agreement that this means a life-long right to return is guaranteed to this finite group. Particularly for EU citizens in the UK it is important that such an unequivocal right to return is set out in the Withdrawal Agreement because the mere application of EU free movement law on future re- entry in the UK is likely to face implementation issues once the UK is out of the EU. A clear-cut commitment in the Withdrawal Agreement that citizens do not lose their right to return after any period of absence is therefore required in addition.

These are issues that flow from the discussions during Round 3 and which are related to issues like frontier workers, mutual recognition of qualifications and economic rights referred to below. These are important issues which affect both EUinUK and UKinEU. They will be key in the next round and we urge both sides to take a pragmatic and flexible approach to them to ensure that all citizens who have exercised their rights to move and reside freely in another EU country are not penalised for this in the final deal on citizens’ rights.

3 http://www.bremaininspain.com/wp-content/uploads/2017/08/BiE_Round-2-response_free-movement-cross-border_PUBLICATION-.pdf

http://www.bremaininspain.com/wp-content/uploads/2017/08/British-in-Europe_Free-Movement_Master-Case-Studies_EC.pdf

 

General Problems with the Table

The first issue is one of definition. There are a number of points where concepts are defined in terms of EU Treaty provisions or secondary legislation or the relevant case law to these. This is not a helpful way of defining concepts in the Table. These concepts should be stated in terms that can be readily understood not only by lawyers specialising in EU law, but also the layperson who is entitled to know how s/he is affected so as to comply with the concept of transparency in the negotiations. In addition to this, there is potential for misunderstanding between the negotiating teams.

Related to this, there are also points where the UK has made precise lists while in others, the onus is on the EU to make a proposal. Again this leads to a lack of clarity and transparency. At the same time, the onus is on the UK to commit to a clear procedural solution to ensure that rights are properly protected. It is of little value to be more precise on the list of entitlements that are included if their implementation is lost in ambiguity about a mix of third country immigration status under UK law and vague commitments to setting out some elements in the Withdrawal Agreement.

A second issue is the areas which are listed in the table as green. Although there appears to be consensus in some of the green areas, the wording is very different (e.g. family members as laid down in Dir2004/38 /rights of EU child vs ‘independent rights holder’, Conditions for acquiring PR vs ‘Minimum’ conditions etc.) These concepts and definitions need to be revisited and clarified, as they may be hiding different legal concepts, based on EU law in one case and UK immigration law in the other.

Finally, and of the utmost importance for transparency, we ask the negotiators to make it absolutely clear in the Table or otherwise whenever the position they are adopting is a departure from that put forward in, for the EU, the Negotiating Directives of May 22nd and, for the UK, in their June proposals (Cm 9464). Otherwise there is a real risk that the public will fail to understand that an important change is hidden behind an obscure or legalistic reference in the Table. We therefore call on both sides to publish now, before the “crunch” September and October rounds of discussion, a list of all departures from their original proposals.

To give a concrete example, para. 31 of the UK’s proposals said that children of EU citizens eligible for settled status would be eligible for that status whether born in the UK or overseas and whether they are born or arrive in the UK before or after the specified date. This is not repeated in the Table. We have assumed that children for whom settled status is proposed would have this regardless, but it would be helpful to have confirmation that proposals not mentioned in the table are unchanged.

 

Frontier workers

The position of frontier workers is very important to both our groups, but particularly to British in Europe, more of whose members are affected simply for reasons of geography. In an effort to assist on this question, which we were aware was due to be discussed in this round, British in Europe included a section on frontier workers in its August addendum and case studies (see link above).

As mentioned above in our section on general problems in the Table, the first issue is one of definition. In our addendum, we identified five categories of people who, on any common sense view, count as frontier workers but may not fall within the definition of Regulation 883/2004. The EU proposes that frontier workers should be those “as defined in case law concerning Articles 45 and 49 TFEU and Reg. 492/2011”. This is not a helpful way of defining an important category of person covered by the Withdrawal Agreement, and we look forward to clarification. In particular, are our five categories to be covered? As we said above, if so this should be stated in terms that can be readily understood not only by lawyers specialising in EU law, but also the layperson who is entitled to know how s/he is affected.

Furthermore, to adopt in a negotiation a “definition” as vague as that in the Table is to give rise potentially to enormous misunderstanding. For example, one of the negotiating teams might understand it in one sense and the opposing team in quite another and their apparent agreement might be wholly wrong. It really is essential that any definition on which an agreement might be based is clearly set out so that there is no possibility of misunderstanding, and so that the people affected can begin to move from their present limbo with a clear idea of where they are going.

The second issue is the extent of the rights which are proposed. Our reading of the EU position, which the UK says it will reciprocate, is that a frontier worker’s right to reside in their country of residence will be protected but this will be confined to the country in which they are residing at “the specified date”4. Similarly, the right to work away from home will be confined to working in the country where they are working at “the specified date”. For the reasons set out in our addendum document and apparent from our case studies, such an approach would be too narrow. If the rights of existing frontier workers to live as though Brexit had never happened are to be preserved, then they should continue to enjoy the freedom to work and to reside throughout the EU27 and, if they were working or residing in the UK, in that country too.

 

Posted workers

We understand that there was further discussion about posted workers, but that the EU continues to regard them as outside the scope of this negotiation. Once again this is an inappropriately narrow view of the proper subject of the discussions, and we regret that posted workers, who are as human as any other citizen whose rights are under discussion, continue to be excluded.

 

Social security and healthcare

We were of course very pleased to see that future as well as past social security contributions are now to be included, a point which we raised in our response to the UK’s original proposal document.

On healthcare, we are similarly glad to see that both sides support the continuation of the arrangements under Regulations 883/2004 and 987/2009. As an aside, but a very important one, we feel compelled to point out that this is an example of the UK being prepared to continue to accept the application of EU law post-Brexit, which is of course perfectly sensible. It does not, however, stand well with their position that the continued application of the EU law of permanent residence for those who already have that status is somehow quite impossible.

We believe that negotiation on the healthcare issues, or at least the explanation of the result of that negotiation, has been bedevilled by a failure to distinguish between two quite distinct EU healthcare schemes, the S1 scheme and the EHIC scheme. Whilst the two schemes have in common that the country of the “competent institution” pays for the healthcare provided, the conditions of entitlement and the content of what is provided are quite distinct. In particular, the S1 scheme is an enduring5 scheme which entitles a defined group of people to healthcare in their country of residence at the ultimate expense of the country which pays or will pay their pension, whilst the EHIC scheme is a scheme for temporary health care available to all EU citizens at present even if they have never before ventured beyond the boundary of their country of birth.

It seems from the remarks of David Davis in the closing press conference that UK pensioners in the EU will continue to be covered by the S1 scheme but will also, whilst travelling in other EU27 countries, be able to use an EHIC card for temporary health care6. As this right is reciprocal, both British in Europe and the3million welcome the continuation of both existing schemes for these people.

We do, though, need clarification from both sides on the issue of the personal scope proposed for both schemes and, so that we may pass on this explanation to those we represent, we ask that such clarification be in writing well before the September round of negotiations which we understand will be where the hard decisions on what is to be conceded and what not will be taken.

 4 We assume that this British term, appearing in a column of EU proposals, is simply a typo and should read “date of withdrawal”. Otherwise it would be inconsistent with the general EU approach in these negotiations.

5 At least in the case of the great majority of those covered – pensioners and those in receipt of exportable benefits.

 

Our queries are as follows:

1. The language of the Table “on exit day” is very specific and, on a literal interpretation, could mean that a UK pensioner who resides in, say France, but is in England on exit day is no longer covered by the S1 scheme. We are sure that this is not the intention, but would welcome clarification as to precisely how this works.

2. Is it intended that entitlement to benefit or continue to benefit from the S1 scheme is unchanged for all those resident at Brexit away from the country of their competent authority?

3. The UK’s position paper of June 2017 said that it intended to seek to protect the current EU healthcare arrangements “for UK nationals and EU citizens who benefit from these arrangements before the specified date” (para. 49). In our response, we pointed out that this potentially excluded those who have not yet retired before the cut-off date and those who currently depend on a retired spouse’s S1 form and will only receive their own on retirement. We see no reference in the Table to the limitation proposed earlier and we assume that it has been dropped, precisely for the reasons we gave. In other words, a person who is at Brexit resident away from the country of the “competent authority” for their future pension will be entitled to benefit from these arrangements when their pension becomes payable. In view of the importance of this issue to many of those we represent we need confirmation that our understanding is correct.

4. The Table says that those who are protected “continue to be eligible for healthcare reimbursement, including under the EHIC scheme.” Does that mean that only those who are covered by the S1 scheme are eligible for EHIC, or is there one group entitled to S1+EHIC and another entitled to only EHIC?

5. If the latter, who is entitled to only EHIC?

6. In particular, are all UKinEU and EUinUK at Brexit going to continue to be entitled to EHIC?

7. What is the position of a person who frequently works abroad, possibly falling outside the narrow definition of frontier worker, who happens to be in their home country, and thus not in a “cross-border situation” on Brexit day?

8. Is the intention that those entitled under these rules to the benefits of the EHIC scheme (which is clearly not the most important aspect of healthcare under the existing EU system) should continue to enjoy those benefits throughout the territory comprising the EU27 plus the UK?

6  D. Davis – remarks on conclusion of Round 3.

 

Recognition of qualifications

The EU is proposing a very narrow approach here, no doubt for the political reasons to which we referred at the outset. In general, we agree with the broader approach of the UK. Having regard to the “litmus test” referred to above, it is our strong contention that the UK’s approach does not step outside the proper boundaries for discussion of qualifications. Both sides are agreed that the personal scope of this section is “The rights of EU27 persons resident in the UK before the withdrawal date and vice versa as well as frontier workers”. Thus the UK’s proposal relates to the rights of individuals caught in the middle of Brexit.

We also support the UK’s positions that the right to have a qualification recognised should not be tied to residency, that the right should not be limited to the recognising state but should apply across the UK and all 27 EU states, and that equal treatment with national professionals should not be confined to residents and frontier workers.

It is interesting to note that the EU’s position on territorial scope is incomplete and inconsistent as it is stated that “the effects of grandfathered recognition decision limited to the issuing State…and not grandfathering of recognition decisions in States other than the State where the UK national is residing or working as a frontier worker”. There is no mention of how this will apply to UK qualified EU citizens in the UK before exit (of which there will no doubt be many). It is thus not clear whether EU citizens who hold UK qualifications will have them recognised across the EU or whether the same limitation of territorial scope will apply to their qualifications, although they remain EU citizens post exit. This again goes back to our general point made above that this part of the negotiation is about the rights enjoyed by individual UK citizens in the EU and individual EU citizens in the UK at Brexit. It also picks up a point that we made in our very first joint response to the draft negotiating directives in May as to whether para. 22, dealing with continued recognition of qualifications, operated in personam or in rem. We were told the former – and yet this position seems to imply the latter.

As to the qualifications to be covered, we believe that the approach of both sides is too narrow. Briefly the EU is proposing to safeguard qualifications obtained in EU28 and either already recognised in another EU28 country or subject to application for such recognition at the date of Brexit. The UK proposes additionally that qualifications which are in the course of being acquired at Brexit should be safeguarded.

The basis for the UK’s broader approach is that it is unfair that a person who, pre-Brexit, has started a course with a view to becoming, a doctor, for example, should not have that qualification recognised. But it is just as unfair to draw the line at the course leading to the qualification in question. For example, a student who has started a course for a law degree will not be a qualified lawyer at the end of it. They will have to undertake further courses before achieving a professional qualification.

 

Economic rights

As we understand the position, both sides propose that the same rights are safeguarded for the same groups of people but, whilst the EU proposes that these rights are safeguarded only in the country of residence or frontier working at Brexit, the UK argues that safeguarding should be available for UK nationals across all the EU27. Of course, EU citizens in the UK would have such rights by virtue of their continued EU citizenship.

Once again, we strongly support the UK’s position. The argument here is very closely related to the difference of opinion over the continued right of freedom of movement for UK citizens in the EU. British in Europe’s detailed representations on that topic, together with our case studies7, show very clearly why this is both important and the UK is correct in law.

But there is a further argument related to lack of reciprocity. In concrete terms, this would mean that a French or German qualified lawyer permanently resident in the UK before Brexit and working out of the UK would continue to be able to enjoy economic rights across the EU 28, potentially even where that lawyer has set up a UK firm, whereas a UK lawyer based in an EU 27 country and working self-employed or with her/his own firm in that country would not.

 

Students

We understand that all topics which are to be discussed have now at least been touched on, but that there has been no discussion of the position of students in the Citizens’ Rights negotiations. We have been told that the Erasmus+ scheme has been the subject of discussion elsewhere in the negotiations but we have not been told anything about progress on that subject, and it seems that there has been no discussion of fees and funding beyond the very short-term. Young people form an important group of the citizens whose rights are under discussion in this part of the negotiation, and we urge the parties both to press ahead with negotiations on the position of students beyond the right of those already studying to continue to do so. Thousands of EU27 pupils in the UK and UK pupils in the EU27 have to make decisions on future study by the end of 2017. Clarity on their rights is urgently required.

7 See link referred to above.

 

Detailed Issues for September Round – Settled Status – administrative procedures

Given the points that we have made in our previous submissions – our joint responses to the UK proposal of 26 June and to round 2 – it remains our clear view that holders of PR

Preferably, no fees should be required for any relevant EU citizen, and if applied, should be in line with average current fees for similar documents across the EU 27, not those imposed on nationals for issuing similar documents, given that nationals will not be issued with similar documents. In short, the position should be that advocated by the EU – that documents are declaratory of rights, and a cheap, accessible local procedure should be instituted, in line with similar procedures in other EU countries (e.g. Germany). We also remain strongly opposed to systematic criminal checks based on UK immigration law and we reiterate the points that we made about deportations in our response to the UK proposal and in our letter of 28 August concerning 100 erroneous deportation letters sent recently to EU citizens. Finally, we hope to see clarity from the negotiating parties that CSI is covered by the NHS in the UK and that neither the CSI or the minimum income threshold requirement is valid.

 

6 September 2017

The Full Response Document can be downloaded HERE

Addendum to Response of British in Europe and the3million to the second round of negotiations (week of July 17 2017)

 

Executive summary

• British in Europe (BiE) has already submitted a joint response with the3million to the second round of negotiations, in which real concerns were raised in regard to, among other issues, the EU position on freedom of movement for UK citizens in the EU (UKinEU).
• British in Europe now wishes to provide some follow-up on this issue, as well as the related issue of cross-border working, which it has set out in this addendum.
• In particular, we are concerned that:
  • The EU position would only safeguard the residence rights but not those of free movement acquired under Article 21 TFEU by UKinEU.
  • Those residence rights would be protected only in relation to the current EU Member State of residence.
  • The potential impact of this, inter alia, on cross-border working.
  • The limitations of the current definition of “frontier worker” under EU law in addressing this issue.

 

Introduction

As we noted in our joint response to the second round of negotiations, it is clear from the item “Further movement rights” in the joint technical note1 that the EU proposes that UKinEU should only have protected rights in the state in which they have residence rights on Brexit day. As we also noted, what is surprising about this is that in paragraph 21(b)(i) of the final Negotiating Directives approved by the European Council on 22nd May, the rights of free movement are expressly mentioned as among the minimum rights to be preserved, in addition to rights of residence, and that this was by way of amendment to the earlier draft Directives.

Given this and Michel Barnier’s statement in his Speech in Florence on 5 May that “Brexit should not alter the nature of people’s daily lives”, we would like to make some further comments on the issues of free movement rights and cross-border working. In addition, as an annex to this document, we have provided a series of case studies to show how important the right of free movement, and linked to this, the ability to work cross-border, is to UKinEU in particular. It goes without saying that these issues are also of great importance to EUinUK as well, although their rights of free movement will of course only be curtailed as regards the UK, and thus the specific problems related to loss of free movement across the EU 27 that we raise below in relation to cross-border working will not affect them, while other issues we raise will.

1 https://www.gov.uk/government/publications/joint-technical-note-on-the-comparison-of-eu-uk-positions-on-citizens-rights

 

1. Free movement

It is clear from the joint technical note that the EU’s current position is that what are referred to as “further movement rights” would not be protected.

It is, however, not clear that this is a concept actually grounded in EU law.

The right to move and reside freely across the territory of the Member States – two interlinked acquired rights

Article 21(1) TFEU states:

“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.”

In other words, there are two fundamental elements to the right (singular) of EU citizenship set out in this article: it is a composite right to move and to reside freely. The EU’s offer only protects the latter aspect of this right of EU citizenship acquired by UK citizens in the EU, presumably on the basis that the right to move has already been exercised at the point of entry to another EU Member State and the EU proposal would not protect further movement rights.

However, this position cannot be correct. An argument might be made that rights of free movement are only relevant where citizens remain EU citizens since one of the aims of EU citizenship is to facilitate integration of EU citizens across the EU. This argument does not carry any weight – as we have seen, free movement is provided for in the same treaty article as free residence and forms part of the same composite legal right. Both elements are integral parts of EU citizenship, and the right of residence is linked as closely to the aim of integration as the right of free movement. Both are necessary to facilitate integration by assimilating the positions of all affected citizens. Further, long term third country nationals (TCNs), who are not EU citizens, are able to acquire both rights of long term residence and of free movement after five years in the EU under Directive 109/20032, (hereinafter “the Long Term Residence Directive”). Thus, how could it be argued that the residence rights of UKinEU should be protected while free movement rights should not, not least since both have been exercised and acquired?

Further, it cannot be argued that UKinEU will no longer be exercising rights of free movement at the point of Brexit. The free movement of persons takes the form of the departure of nationals of a Member State, who are therefore citizens of the Union, from their own Member State and their movement to another or multiple other Member States. UK citizens who moved from the UK and currently live in EU 27 countries have exercised their right of free movement as citizens of the Union at the point at which they went to live in another EU country, or multiple other EU countries, and they continue to do so as EU citizens pre-exit, in the same way as they have exercised and continue to exercise rights of residence in the EU 27 country where they live. This is also clear from case law: for example, Case C- 359/13 Martens §30, where a Dutch national was considered to have exercised her rights to move freely by moving from the Netherlands to Belgium and to have continued to exercise those rights throughout the period during which she lived in Belgium.

2 Directive 2003/109/EC concerning the status of third country nationals who are long term residents.

 

Territorial scope of the right of free movement: one continuous right exercised across the territory of the Member States

Moreover, the right to move and reside freely is exercised “within the territory of the Member States”. In other words, the territorial scope of the right is the EU and the Member States constitute one territory, within which EU citizens can move freely, as if there were no borders. This also implies that any exercise of rights of free movement, even if in relation to multiple EU countries, would be the exercise of one continuous right of free movement, rather than a series of rights or further rights of free movement, across that territory.

The wording set out in the directives and regulations relating to free movement support this interpretation. Directive 38/20043 (“the Directive”) states:

(1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.

(2) The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty.

In other words, it seems clear that the right of free movement is one continuous right exercised across an area without internal frontiers, not a series of exercises of the rights in relation to individual Member States.

Indeed, it is clear from the wording of Article 1 of the Directive that this is the intention:

“This Directive lays down:

1. (a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;”

In both cases (free movement and residence), the Directive, like the Treaty, refers to a “right” in the singular, and to the “territory of the Member States”, territory being in singular and Member States in the plural.

It is also relevant to note that it is established case law that “Directive 2004/38 aims to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on Union citizens by the Treaty” (see Cases C-127/08 Metock and others, and Case C-456/12 O. and B). In addition, “having regard to the context and objectives of Directive 2004/38, the provisions of that directive cannot be interpreted restrictively, and must not in any event be deprived of their effectiveness” 4.

As regards the territorial scope of the right of free movement, case law has confirmed that, even in the case of derived rights of non-EU citizen spouses of EU citizens under the Directive to move freely within the EU, these apply across the territory of the Member States as if it were one territory. For example, in the recent Case C-202/13 McCarthy §41, the CJEU held that Article 5 of the Directive refers to “Member States” and does not draw a distinction as regards the state of entry to argue that such a third country spouse would have a right of entry across the EU, including in the country of which her/his spouse was a national, and, without an entry visa where that person holds the valid residence card referred to in Article 10 of the Directive.

3 Directive 2004/38/EC, on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States

 

Changes in circumstances: comparison with third country family members under the Directive

Not only is this case relevant to the issue of the territorial scope of the right of free movement as implemented in the Directive and whether it is one continuous right exercised across the territory of the Member States but it is also relevant to a comparison of the position of UKinEU with that of third country family members under the Directive.

Professor Eleanor Spaventa has argued 5 in relation to the rights of UK citizens in EU 27 countries post Brexit that it is important to look at how EU law treats those whose circumstances have changed and refers in particular to the case of family members of migrant workers, who are protected under the Directive in the event of a change of family circumstances even if they are third country nationals. She notes that under the Directive, “changes in circumstances might not be determinative of enjoyment of rights, even for individuals who are not Union citizens”. She goes on to add, referring to third country national or “TCN” family members:

“In the same way as a change in personal circumstances is not determinative of TCN family members’ rights, it cannot be determinative of the rights of British citizens in the EU. Furthermore, if Union citizenship means anything at all, it is unthinkable that a TCN with derived rights would be treated better than a Union citizen who has exercised Treaty conferred rights, which are then lost by virtue of withdrawal from the EU. “

Given that, in the case of a change in family circumstances of a third country spouse of an EU citizen, that spouse would under the Directive and the above case law maintain the right of free movement and entry throughout the EU referred to under Article 5 of the Directive (and that this would be visa-free if in possession of the residence card referred to in Article 10), it does seem inconceivable that UK citizens, as former EU citizens, would lose their rights of free movement by virtue of withdrawal from the EU, an event over which they had little control, and in the majority of cases, no say.

4 see for example Cases C-127/08 Metock and others, and Case C-456/12 O. and B

5 Study for the PETI Committee “The impact of Brexit in relation to the right to petition and on the competences, responsibilities and activities of the Committee on Petitions” 2017 at: http://www.europarl.europa.eu/RegData/etudes/STUD/2017/583154/IPOL_STU(2017)583154_EN.pdfs_2014_2019_plmrep_COMMITTEES_PETI_DV_2017_06-21_Brexit_Study2_EN.pdf

 

The Long Term Residence Directive

It has been argued that at least those UKinEU who have acquired the right to permanent residence would potentially maintain their rights of free movement in accordance with the Long Term Residence Directive, which applies to third country nationals who are long-term resident in the EU. In response, similar arguments to those in the paragraph above might then be made, as to why it would be inconceivable that UKinEU should default to this third country citizen’s status and lose the rights of free movement that they currently enjoy both before and once they have acquired five years’ residence. In addition, it should be noted that the rights of free movement granted under the Long Term Residence Directive are inferior to those of EU citizens and apply subject to conditions, not least five years’ residence and very much more limited rights of absence during these five years, the effect of which are such that many who have acquired five years’ residence within Directive 38/2004 would lose it if the Long Term Residence Directive applied. Other conditions to which the acquisition of long-term residence is subject, unlike that of permanent residence, include in particular, the requirement to have “stable and regular resources” without recourse to social assistance in the Member State of residence and health insurance.

In relation to the Long Term Residence Directive, we note with concern the 2011 EU Commission report into the transposition and implementation of the Directive which described the situation, five years after it entered into force, as “deplorable.” Several of the Member States that are home to the largest communities of UKinEU27 (France, Germany, Italy) were found to be in contravention of key provisions of the directive, including definition of status, refusal of status, giving LTRs the right to choose between a permit under national immigration law or EU law, the cost of applying for a permit, higher fees for tertiary education than are charged to EEA nationals and quotas on work permits for LTRs moving from one EU member state to another6.

We are aware of the REFIT procedure under way with respect to all the existing Directives on third country national legal migration, including the 2003 LTR Directive, and would welcome further information from the Commission on the timetable and likely content of any new proposal to amend this body of legislation that may impact on the default residual position as regards continued free movement rights of UKinEU27 across the territory of the EU post-Brexit 7.

 

Conclusions

In summary, and given all of the above case law, it can be concluded that UK nationals are currently exercising a single composite right of residence and free movement as regards their move to another or, over time, to multiple different Member States, and have thus acquired that right in relation to the “territory of the Member States” and not to one specific Member State. Since the right to move and reside freely contains two inextricably linked elements forming part of the fundamental EU citizenship rights set out in Article 21 TFEU, it is difficult to understand why the EU’s proposal aims simply to guarantee one half – residence rights in the country of residence – and not the other, the right to free movement.

Ultimately, these issues go back to the fundamental nature of EU citizenship, which is confirmed in the Directive in its third preamble:

“Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence.”

As Spaventa notes in her study 8 “Union citizenship has been construed as imposing limits on Member States’ discretion in areas that are, otherwise, of exclusive national competence” and notes that this approach reflects the fact that Union citizenship is “the fundamental status of Union citizens”. Following the conclusions in the judgment in Case C-135/08 Rottmann to their ultimate conclusion, one might even go so far as to query whether it is possible for the actions of a Member State (the UK), by withdrawing from the EU, to result in the withdrawal of EU citizenship from its citizens, given its fundamental nature and that it is a status that has been acquired – but that argument is for another day. Finally, as regards free movement specifically, settled case law of the CJEU has held that EU citizens should not be penalised for having exercised their rights of free movement. It would be ironic indeed if the very citizens who had made use of their rights to move as EU citizens were then to have their acquired EU citizenship rights restricted to the territory of one Member State.

6 Report from the Commission to the European Parliament and Council on the Implementation of Directive 2003/109/EC COM (2011) 585 final: https://ec.europa.eu/home-affairs/sites/homeaffairs/files/http%3A//ec.europa.euwhat-we-do/policies/pdf//1_en_act_part1_v62_en.pdf

7 The Legal Migration Fitness Check: http://ec.europa.eu/smart-regulation/roadmaps/docs/2016_home_199_fitnesscheck_legal_migration_en.pdf

8 Study for the PETI Committee referred to above at footnote 3.

 

 

2. Cross-border working

The technical note sets out the EU’s position on cross-border working or frontier workers, stating that “those who are working as a frontier worker at the point of the UK’s withdrawal (or considered within the definition of a frontier worker e.g. jobseeker for six months) fall within the scope of the WA insofar as they retain the status of a frontier worker”. The UK has, as yet, to take a final position but will consider offering reciprocal arrangements.

Frontier workers are EU citizens who are employed cross-border. They reside in one Member State and work in another, and return either daily or at least weekly to their country of residence.

However, there are two remarks that should be made in relation to the acquired rights of EUinUK and UKinEU post Brexit to work cross-border.

It should be borne in mind that frontier workers still face many obstacles in effectively exercising their rights of free movement, as a recent European Commission report notes 9.

And, more specifically, this definition does not cover all forms of cross-border working in which UKinEU and EUinUK are currently engaged. This is of particular significance to UKinEU, given the EU’s current position on free movement rights for UKinEU, and for this reason it is critical to consider carefully all possible variations of cross-border working/careers currently pursued by UKinEU to ensure that the definition of cross-border working used in the Withdrawal Agreement is flexible enough to cover them – otherwise these workers will no longer be able to work cross-border.

 

Categories of cross-border working not covered by the definition of “frontier workers”

If the definition of frontier worker set out in Regulation 883/200410 and cited below were to be used in the context, large numbers of those currently working cross- border would potentially not be covered:

“‘frontier worker’ means any person pursuing an activity as an employed or self- employed person in a Member State and who resides in another Member State to which he/she returns as a rule daily or at least once a week.”

For example, this would affect the following main categories of cases:

(a)  Citizens living in one Member State and working in another MS but less regularly than weekly, or daily, including as an employee, self-employed person or as a director of a company.

(b)  Citizens living in one Member State and working in more than one other MS, including as an employee, self-employed person or as a director of companies in different EU member states.

(c)  Citizens living and working in one Member State and engaged in short term provision of services in one or more others.

(d)  Citizens residing in one Member State and working on a short-term posting in another.

(e)  Citizens providing services from the Member State of residence but collaborating with colleagues in another Member State and thus commuting regularly to discuss work matters with them and for other meetings.

Case (c) covers for example the case of a professional providing services on a temporary and occasional basis under Directive 2005/36/EC on the mutual recognition of qualifications 11. Linked to the questions that we have raised in previous submissions concerning the guarantee of the right of establishment for UKinEU and EUinUK, it is not clear whether this form of cross-border working would be covered for these groups post Brexit.

Case (d) is likely to fall within the scope of the discussions between the UK and EU on posted workers and we noted our support for the UK’s position on posted workers in our main response to the second round. There are however a number of questions here: would all currently posted workers be covered by the agreement reached on citizens’ rights in the Withdrawal Agreement? Would UKinEU habitually resident in one EU27 country and currently posted to another or the UK be covered (presumably yes)? What about EUinUK in a similar situation? And what would be the position on postings for UKinEU who work for employers or clients with multiple offices across the EU going forward (given that the current EU proposal would not maintain rights of free movement?)?

9 European Commission “Comparative Report: Frontier Workers in the EU” January 2015.

10 Article 1(f) of Regulation 2004/883/EC on the coordination of social security systems.

 

 

Problems and Solutions

Since the five categories of workers set out above (a)-(e) would not be covered by the definition of frontier workers, a first problem is what conditions would apply to these workers in particular as regards working conditions, tax and social security post Brexit. The UK would thus need to ensure that EUinUK who work cross-border and are not covered by the definition were treated equally as compared to UK workers. The EU would also need to guarantee equal treatment to UKinEU working cross-border and not covered by the definition, whether in the EU 27 or the UK.

But, more seriously, in the event that UKinEU were not able to benefit from rights of free movement across the “territory of the Member States” post Brexit, it would then become difficult or impossible for those UKinEU not covered by the definition of “frontier workers” to continue their cross-border work and, indeed, their careers, going forward.

There are two possible solutions. One would be a new, wider definition of cross- border working set out in the Withdrawal Agreement for both EUinUK and UKinEU with guaranteed rights of equal treatment attached to ensure that all those working cross-border at the point of exit would be able to continue to work in exactly the same manner as they do currently.

However, the obvious and simpler solution is to maintain the status quo: to confirm ongoing free movement rights for all UKinEU as well as to guarantee the existing general rights of equal treatment from which both groups currently benefit. This would also have the advantage of simply confirming the current situation and would not require changes to EU law or the current regime in the UK. This in turn would limit the scope for uncertainty, argument and litigation over the interpretation of a new definition.

In conclusion, to illustrate the importance of this issue to both UKinEU and EUinUK, and that of free movement to UKinEU, we attach as an Annex to this Addendum a series of case studies, which illustrate the rich and varied cross-border working lives of UKinEU.

11 Currently, depending on the relevant qualification, short-term provision of services in this way would be relatively straightforward, especially where the profession was regulated, and subject to only minimal formalities and compliance with the relevant professional rules in the country to which the professional moves.

 

The Full Response Document can be read HERE

 

Case Studies of UKinEU and free movement/cross-border working: August 2017

 

22 August 2017 British in Europe

Case Studies of UKinEU in support of the British in Europe and the3million – Addendum to Response to Round 2 of Negotiations which can be found HERE

 

France

 

Free movement/Cross-border working

 

 

Sarah, singer/actress, living in France

I studied Linguistic Science in the UK, France and Italy and also theatre, voice and dance in the UK and France. After qualification in both disciplines in the early 90s, I worked in Japan before coming to live and work in France in the mid-90s where I still reside today. However, because of the nature of my profession (singer, actress, vocal coach and voice-over artist), I commute regularly to London for work and also to Belgium, Switzerland and The Netherlands in touring French productions. Without free movement, a career like this will not be possible in future and there are multiple issues that arise: the right to work; recognition of my professional qualifications; whether I may need a work permit each time I commute to Belgium, Switzerland; The Netherlands and other EU countries that may come up on a future tour and whether I could move again if an interesting long show contract came up. For example, I am currently in contact with a theatre in Vienna for a future contract. As I do not commute on a regular daily or weekly basis, I would not fall within the EU definition of “frontier worker”. Without free movement, which is a right that I have enjoyed as a British woman in France for the last 21 years, my professional life will be irremediably hampered.

 

Jacqueline and Adrian, trainer/consultants, living in France

My husband and I are both British citizens and have lived in France since 2004 and run a SARL (limited company) since 2006. Many of our clients are all UK limited companies (some are French, some are Dutch) and my husband provides training and consultancy services to them and their clients wherever in Europe it is required. He has regularly travelled from France to UK, Belgium, Switzerland, Romania, Ireland, Spain, Germany and the Czech Republic to run three or five day training courses or provide consultancy services, usually for up to six weeks at a time. We have provided this service for the last 11 years. We would not fall into the definition of ‘frontier worker’ as our work is done on an ad-hoc rather than a regular basis. Without free movement we would be effectively unable to continue our business.

 

Helen, chef and caterer, lives in France

I started working ski seasons in 1999, met my husband whilst working in France. After a brief period back in the UK we moved back out to do more seasons and to find a place to live in France. We finally bought our house in Les 3 Vallées in December 2007. We now run our own individual catering businesses, my husband as a professional private chef and myself as an outside caterer. During the winter months we work from our home catering for tourists skiing in the area. For the rest of the year there is very little demand for our services so we work at private villas and households throughout Europe. So far we have worked in Switzerland, Italy, Spain, Portugal and now Greece. We are usually away for a couple of months during the summer working where we earn about half of our yearly income. Without freedom of movement we would not be able to do this, losing half our income would leave us probably dependant on unemployment benefit, which we do not wish to do. There is also a concern as to whether our catering/chef qualifications would be recognised.

 

Anne, works and lives between France and Spain

I am a British citizen, married to a Frenchman and resident for 37 years in France where I have two adult children and a young grandchild. I am the only person in the family with British nationality. I speak several languages and my present job involves prospecting the Spanish market and requires frequent but irregular travelling between Paris and Seville. Approximately seven years ago I purchased a property in Seville which is jointly owned with my French family. In all I spend almost six months of the year in Spain. If my freedom of movement is restricted not only would I be unable to do my job but would not have the same access to property already purchased in another EU country and where I may one day decide to retire. My quality of life would also change dramatically. In Seville I organise many international events on a voluntary basis which enable people of many nationalities to meet up and converse in the language of their choice. Many friendships are made. I have never applied for French citizenship as not necessary. With my present lifestyle obtaining this in Paris would be virtually impossible. Continued freedom of movement and not being land locked is essential for me.

 

Justin, consultant at EU Commission in Brussels, lives in France

We (my family and I) moved to France in 2011. My wife is French (and my kids have French nationality too). Since last October I have been working at the European Commission in Brussels as a consultant (employed by a Belgian IT company). I have expat status so my centre of interest is still firmly in France. I travel to France every second weekend, which presumably puts me outside the definition of a frontier worker.

 

Oil and Gas industry workers, living in France

For most of our married lives, my wife and I lived and worked in Aberdeen. We were both employed in the Oil & Gas industry. Life was simple and we happily brought up our two sons in the country of their, and our, birth. We consider that ‘country’ to be the UK and our nationality to be British. My wife is Scottish and I am English.

In the early 2000s, I was offered the opportunity to work in the Middle East, on a rotational basis (four weeks there, four weeks at home). As I worked for the UK affiliate of a French company, I was expatriated under their international assignment terms, continuing to pay my taxes as a UK resident and a modified Class of NICs, due to my foreign assignment. During that assignment, our children left school and began studying at University. My wife wanted me home and I returned to Aberdeen, to work for another company. Transitions from working abroad and between companies were relatively simple.

Later in the same decade, my wife had the opportunity to work in The Netherlands for her employer. She moved to Holland and worked there on a ‘local non-national basis’ for almost five years. So, my wife contributed to The Netherlands social security system. During my wife’s assignment to The Netherlands, I became self-employed and worked as a consultant in both the UK and France. My working arrangements between the two countries were simple to organise due to both being EU countries. Subsequently, I was asked to join the staff of one of the companies I had consulted for. I did this and worked in Paris for three years. There were very few complications in making this transition and my wife and I benefitted from the fact that travel between France and The Netherlands was uncomplicated.

Throughout this period, we had been planning for our future together. We bought a home in France, fully intending that to be our home in retirement. This was a logical choice because of our working circumstances, because my wife has relatives in Spain and because our children now live far apart in the UK. We invested what we could in pensions, to ensure that we could be secure in that retirement. When we were both living and working outside the UK, we sold our house in Aberdeen and used its equity to help our sons get onto the property ladder in the UK. We began saving specifically to protect ourselves from foreseeable exchange rate fluctuations. Essentially, we formulated a responsible plan that would enable us to live happily in our chosen home in the EU and be within reach of different family members.

Two years ago, my wife was relocated to the UK and now lives and works in London. We are fortunate that, currently, she can work flexibly, travel freely and spend roughly equal time in London and our home here. We decided that the timing was right for me to stop work, draw upon my pension and live at home in France. As a result of fixing my working life in France, I have been a French tax payer for five years (2017 will be my fifth year). The plan was that my wife would join me here full-time within a few years. Consequently, she rented an apartment in London, after living for a short while with one of our sons in his flat close to London.

As a result of the EU Referendum vote, we are very carefully considering our options for the future. I am not yet a permanent resident of France and my wife is tied and committed in terms of work, taxation and social security to the UK. There is no certainty that Brexit negotiations will reach agreement. Nor, if they do, what the terms are likely to be on matters related to rights for free movement or residency in either the EU or UK for cross-border workers. If I do become a permanent French resident, I cannot be certain that my wife would be able to move here fully when she retires and we do not know what rights I would have as a ‘returner’ if a move back to the UK became an economic necessity as a result of the terms of whatever Withdrawal Agreement is reached or there being no deal.

 

Free movement/Impact on multiple state pensions

 

 

Susan and Simon, work in tourism, live in France

We both have dual British and Australian citizenship. We began our working lives in Australia inthe early 1980s. We moved to the UK in 1997 and to France in 2009. Like many serial expats we have complicated pension arrangements and the rules in both Australia and Britain have changed since we left those countries. Our desire is to remain in France, which is where all our property and investments now are, but in 10 years’ time, when we are old enough to claim our Australian state pensions, we cannot do so from France, because there is no reciprocal agreement. We will need to establish residency in another EU country that does have reciprocity with Australia. Our current idea is to move to Belgium because we speak French and have quite a few friends there. Other Australians we know did it by relocating to Spain. We cannot solve the problem by returning to Australia to claim. Our pension would not be ‘portable’ and we would not be able to return to France permanently, nor would we get the pension owed to us by France. We would then be ‘trapped’ in Australia. We don’t need to live in Belgium any longer than it takes to start receiving the pension – but we do need to be resident. Once the pension is coming in, we would be free to move back to France and the pension would continue to be paid! But, importantly, we need that option of Free Movement in order to claim.

 

 

Germany

 

Lawyer with intellectual property consultancy. Living in Germany

Moving to Germany for me in the 1990s was simple. My employer didn’t need to request a work permit and I didn’t need to request a resident’s permit. The local health insurance company insured me, and the German pension fund accepted my application for membership based on my previous contributions in the UK. Post Brexit, I am aware that my opportunities to work in the European Union might be severely restricted. Will I continue to be able to work for Austrian, Belgian and Norwegian companies? Will I need a work permit from each European country I work in, or will I be required to request a work permit each time? The uncertainty is hugely unhelpful.

 

Lawyer. Living in Germany

I am a UK national living in Germany, married to a German national, with two dual national German-British children.

I studied English and French Law in the UK and France, then returned to the UK for two years to earn the money to qualify as a barrister. After qualification in the 90s, I left the UK in recession to go to Brussels to do a traineeship at the European Commission, where I met my husband. I initially stayed on as an interim at the Commission and then stayed on in Brussels for a job practising EU law, while my husband (then boyfriend) studied for his Masters in London (with my financial support), and I commuted every weekend to London.

We then got married and moved to Italy together, where I initially had a traineeship in an Italian law firm, but was offered a permanent job the same year, once I had mastered Italian. Our first child was born in Italy before we moved back to Belgium for 11 years when I was offered a new job in private practice. During that time, I changed jobs and moved from being an employed to an independent, self employed lawyer working with another practice, and we had our second child. Finally, we moved to Germany eight years ago, where I continued to work as a self-employed lawyer in private practice, and to collaborate with the same practice in Brussels.

Thus, I currently work cross-border as a self-employed lawyer between Berlin and Brussels, providing services from Berlin, but commuting regularly to Brussels to maintain contacts with colleagues in Brussels with whom I collaborate. I also travel to London regularly for work, and to regular meetings of the Europe-wide lawyers’ network to which I belong, with recent meetings having taken place in Zurich, Copenhagen, Madrid, Barcelona and in the autumn, Paris.

Without free movement, a career like this will not be possible in future and there are multiple issues that arise: the right of establishment; right to work; recognition of professional qualifications, whether I may need a work permit each time I commute to Brussels; whether I could move again if a job opportunity came up, etc. As I do not commute on a regular daily or weekly basis, I would not fall within the EU definition of “frontier worker”. Without free movement, the only effective and complete solution is what I am doing: taking German citizenship, as well as requalifying as a lawyer, in another EU country.

 

Financial Services Professional, Frankfurt, age 29

I started working for an insurance company in Germany in 2015, following seven years in the financial services sector in London. This was to be the start of my international career in financial services. Brexit has undermined my career plans, to put it mildly. A whole range of questions arise: How will this impact on my employment status in Germany? My employer has assured me that they will support me as regards a work permit, but this could mean I am tied to one employer in Germany. This is not a desirable scenario. Any application I might now (before Brexit) make for a job in another EU27 country will be seriously impacted – because any future employer is uncertain of my status post-Brexit. And any application post Brexit will be presumably subject to the future employer not being able to find another suitable candidate from within the EU27.

I am also concerned about my skills and employability in Europe. For example, currently there is a big push to harmonise the rules regulating the banking and insurance industries within the EU. This means that the skills of a professional working for an insurer in London are directly transferable to Frankfurt or Brussels. However, post Brexit, the UK is unlikely to continue to move into the direction of harmonisation – making it harder for people like me to do jobs in other countries, which is not ideal for one’s career growth.

 

Marketing Manager, age 47

I originally moved to Germany in the early 90s shortly after graduating. I then worked in various roles and sectors and in different cities until leaving Germany to go back to the UK for work reasons in 2006. Five years ago, I moved to Sweden for a role with my present employer and then moved within the same company to a different role back to Germany in two years later. My life and work choices have been driven by free movement and open doors.

I am now facing uncertainty on a number of fronts: Will I still be able to move country to new roles both with my current employer or any new employer? If I were made redundant here in Germany would I still be able to search for a new role in Germany whilst receiving unemployment benefit – or would I be forced to move back to the UK? Would I be less interesting for a new employer if I am no longer an EU citizen? Will my pension rights suffer through having paid into three different pension systems? I can’t apply for dual citizenship before the UK leaves the EU as the requirement states eight years’ continuous residency in Germany – and this I do not have. I feel I am now being penalised for exercising my right to free movement and work across the EU.

 

Company owner, Stuttgart, Germany, age 60

I came to Munich in 1986 with my wife after accepting a post with an international company based here. After redundancy in 1992 I invested in setting up my own business. 25 years later I now run a successful international company, employing a local workforce.

From a business perspective, running a German company with many UK customers, my concerns are about the stability of sterling. Already, due to a drop in sterling post- announcement our services and products have become almost 20% more expensive to the UK market due to the weakness of the pound, and of course, potential restrictions on import, export and ease of movement of staff over between UK/EU give me cause for concern in trading with UK partners and customers. I travel throughout Europe on business, and of course I have concerns about restrictions that might be imposed as a UK national travelling in the EU in the future.

 

Business owner, Munich, age 50

I moved to Germany some 16 years ago to set up the German arm of our UK company. We currently employ a mixture of nationalities: German, Swedish, Serbian, American and UK citizens and do business in the UK, continental Europe and the US. Of course, we need to deploy these people on projects across the EU. How will Brexit affect the status and movement of my UK employees in Germany, my ability to hire UK employees in the future, and my ability to do business with the UK in general?

 

Posted worker, Munich

I was born in the UK of British parents and consequently have British nationality. However, I grew up in Germany, completed my education there, have a German school leaving qualification and was married in Germany. I am employed by a German company in another EU27 country, and have a German work contract, so pay social security contributions in Germany. My application for German citizenship is now complicated because of the fact that I was posted abroad by her employer and therefore have a break in residence and this may also impact my permanent residence status.

 

 

Luxembourg

 

Translator, Luxembourg

I am a British citizen employed and living in Luxembourg. I have made use of my EU freedom of movement rights since 1982. After my studies, I lived and worked for six months in Pau, France, for Elf Aquitaine as an English-language teaching assistant, then six months in Stuttgart, Germany, as translator for Daimler-Benz AG. Following this, I worked and travelled in NewZealand for six months as part of an exchange scheme for young people. Upon my return, I was offered another two-year assignment at Daimler-Benz AG in Stuttgart (1984-86). I then took up employment in a small translation company in Schwäbish Gmünd, near Stuttgart, Germany, where I lived and worked until end-1989.In January 1990, I began working for the European Investment Bank in Luxembourg. I initially lived in Luxembourg but after two years I married, and my husband and I bought a property across the border in France. I continued to work in Luxembourg, however, commuting across the Luxembourg-French border on a daily basis.

My husband, a third-country national (Russian) acquired his residence and working rights in Luxembourg and France and EU freedom of movement rights (within the Schengen Area) through his marriage to me, but was unable to travel to the UK without a visa as the UK is not part of the Schengen area. My husband eventually took French nationality to alleviate the problems. Born in France, my three children have British nationality under Part I, 2(1)c the

British Nationality Act (children of British citizen in service under an EU Institution). Although we lived in France, they have always attended nursery and school in Luxembourg.

In 2009, we sold our property in France and bought a house in Luxembourg where we now reside. Over a period of 35 years, I have therefore lived in different EU countries without ever returning to live or work in the UK. And during much if this time, I was actually living in one EU country (France) while I was working in another (Luxembourg) and my children also attended school across the border from their home. Even now, although we live and work in the same country, we still cross borders frequently for medical treatment, study purposes etc. (e.g. I recently had an operation in a German hospital). After many years of using my EU freedom of movement rights, I am therefore extremely concerned by the proposal to limit these rights to one EU state, which would result in my family and I being “landlocked” in a particularly small country.

 

Independent consultant/Public health, aged 52

I am a UK national living in Luxembourg, married to a German and the mother of two UK German children.

I studied languages and law at university and met my husband who was studying in the UK. After graduation we moved to London to work and study. My husband (then my boyfriend) was then offered a post in the European Parliament in Luxembourg. After three years of cross-border traveling between the UK, Luxembourg and the Netherlands (where his mother was living and dying of cancer) we got married and I moved to Luxembourg in 1995. I worked as an intern in the EU Commission before setting up as an independent consultant in public health law in Luxembourg in 1997. In 1999 we moved to Germany where I had two children. I continued to work in Luxembourg on a part-time basis as a consultant during my residence in Germany, travelling between the two countries and working from an office there. In 2002 we moved back to Luxembourg because of the demands placed on me and my husband by the constant commuting and its impact on our work-life balance and young family.

Since 1997 I have worked from my base in Luxembourg for clients based in Belgium, France, Switzerland, Denmark, the UK and the US. My work involves constant cross-border travel within the EU/EEA/EFTA countries and beyond. In the past 18 months I have travelled to Belgium, France, Germany, Norway, Switzerland, Lithuania, Malta, the Netherlands, Spain, Austria, Portugal, Romania, Slovenia, Sweden and the UK for my work. These trips have lasted from as little as 14 hours to a week or more. Some of these have been multiple visits and I sometimes combine visits to more than one country, Schengen and non-Schengen, within the same business trip. I cross the Luxembourgish border to work every week that I am working.

On a personal basis I regularly cross at least one border at the weekend. One of my favourite weekend activities with my family is to take the train to Wasserbillig on the Luxembourgish German border, cycle along the river Sure on the German side and return via the Luxembourgish side. It’s a simple pleasure but it illustrates just how cross-border my professional and personal lives are and how essential it is that I continue to enjoy my current freedom of movement rights beyond the borders of Luxembourg.

 

 

Netherlands, Austria

 

Debbie and Chris. British Housewife and IT Contractor. Living in the Netherlands

We left the UK in 2012, accompanying my husband who is a self employed IT contractor. We moved to Munich in 2012, paid into the German tax system and stayed for 3 years. In 2015 my husband started contracting for NATO, using his UK Limited Company. We moved to Maastricht in the Netherlands, stayed a year at which point his project relocated to Brussels. In 2016 the Brussels project located to The Hague in the Netherlands and this is where we currently live. We have no permanent residency rights in any of the EU 27 countries we have lived in. So what will happen to us? What are the implications on our earnings? Will we still be able to trade? What about our pensions? What about the mutual recognition of qualifications? Will we be required to have a work permit to move between countries like we’ve done since 2012?

 

 

Consultant and Employee, Living in Austria.

We are a British couple who have lived in Austria for 5 years. I still work part time through my small consultancy company, and, as all my work is in the UK, my company pays UK corporation tax, and I pay UK NI and personal tax. My partner moved here on secondment from his company’s UK office which has now closed. He is now on an Austrian contract. We are moving to Romania in October on another secondment contract, but from Austria rather than the UK. We will move under our treaty rights but have no idea what will happen to us after March 2019. Neither of us has the option of citizenship of any EU27 country. Just to add. We own a property in the UK, are members of UK pension schemes, both private and local government, have UK investments such as ISA’s… My partner is now making contributions to the Austrian pension scheme, making contributions to the Austrian social security system, and from November will be contributing to the Romanian system. I’d love for someone to clarify where we stand after Brexit.

 

 

Spain

 

Rebecca – 33 – Works for Easyjet in Italy, home is Spain

I work for EasyJet in Italy having previously worked for them in Spain. I travel continually between European countries. I arrived in Spain when I was 2 years old and was educated in the Spanish system and went to university in Madrid. I have a flat in Madrid and am worried about my situation post Brexit & the difficulties I might face travelling across Europe for my job. My home is Spain but being out of the country so much, I cannot apply for Spanish nationality. In the light of all this uncertainty I am therefore applying for Italian nationality. At least as an Italian national, I will be able to live/work anywhere in EU without any issues, & exercise my right of free movement, which I would hate to lose.

 

John – 56 – Computer Programmer/IT Manager, Living in Spain.

Throughout the 1990’s I worked as a computer contractor, and the freedom of movement allowed me to work in various places across Europe. I worked for Hewlett Packard at the offices in Munich, and then for the United Nations based in Geneva. I then went back to work for a British company, during which time I was required to work for them off-site in locations in Paris and Vienna. Following this, I worked for a company in Gibraltar, before taking up my current work for a Spanish based company that specialises in providing service to British Expats living in Spain and Portugal. Brexit will not only affect my right to live and work in any of these countries, but will also effectively cut off my company’s line of income, so will more than likely render me unemployed at the same time. In terms of ongoing rights of free movement for UK citizens in the EU, I myself rarely visit our offices in Portugal and Cyprus, but other members of staff do, and so this would also affect them and thus our business.

 

Daniel – 33 – IT worker – Living in Spain

I was part of the younger generation to graduate from university as the global crisis started to take hold. Having struggled to move my career and life forward due to poor wages, few career opportunities for my specialism and prohibitively high cost of living for a young professional in the South-East region I made the difficult decision to exercise my right to free movement by moving to Europe and securing work where my skills were in higher demand and I could have a better (i.e. affordable) quality of life. I initially worked in Spain for a UK/Spanish IT company which included regular travel to other European offices and then progressed to an IT contractor role in Belgium within a different multinational company. For 4 months, I would make the weekly commute from Spain to Belgium while my girlfriend lived and worked full time in Spain. Today I currently work for a Swedish/UK company as a permanent IT employee in Spain with regular travel across Europe. My career is heavily reliant on having access to live and work in the EU27 countries. So much so, that I have been forced to give consideration to taking on Spanish citizenship to be able to maintain this moving forward. My issue is that I currently do not have the required residency time in Spain to be able to take citizenship and dual nationality sadly isn’t possible between UK/ES. As a consequence, I find my future life and career prospects in limbo. Without access to the whole European work arena I foresee major issues relating to me for visas, work permits and not to mention the large costs involved that will be passed on to me. Since the referendum I have had countless sleepless nights as my future work opportunities are severely diminished when the UK leaves the EU and I am heartbroken that I may be forced to renounce my UK citizenship with the sole reason to be able to have access to a larger employment pool in Europe… yet I fear that it is my only option. Likewise, I don’t want any future negative changes to my professional status mean that my young family and I are forced to return to the UK and require state support.

 

James. Self employed. Living in Spain

My main concern is freedom of movement, but as the years go by, I am increasingly worried about what will happen with our healthcare? I work as a freelancer for UK businesses while living in Spain. Will I be able to travel back and forth as freely post-Brexit or would I be forced to return to the UK? If I applied and gained Spanish citizenship after Brexit would I need a work permit to travel between the two countries? I moved to Spain as a EU citizen with the freedom to live, work, retire in any of the EU27. I never expected those fundamental freedoms to be taken away from me. And what will happen to my healthcare when I retire? I continue to pay national insurance in the UK, but post-Brexit a reciprocal health care agreement may not be in place any longer in Spain.

 

Robert: former software engineer/IT expert

I worked in UK for part of the Dutch Philips company, where at one time I was working in Paris, then joined an Anglo-French venture between GEC & Alstom. Shortly after I worked in Switzerland, a requirement of the job being able to legally work inside EU without “red tape” (early 90’s before current treaties). Now have retired to Spain early, to care for parents who have been resident almost 15 years, my father would be unlikely to survive the UK winter (medical opinion) has dementia so my residence is our family taking responsibility for care. My career would have been hindered without freedom of movement.

 

Jim – 61 – Data Protection Consultant in Spain

I moved to Spain to work in 1995. My wife and two young children joined me shortly afterwards. We bought a house & set up a business in 1997/8, had our children educated in Spain and established a life, taking full advantage of our rights to freedom of movement. Both my daughter & son have careers & lives now in Madrid. I work as a consultant in data protection. I currently work in the UK and I have worked in the Netherlands. My skills are sought after across Europe and I regularly get offers to work in other EU countries. All this will stop if my right to free movement is taken away, or at best, be made much more difficult. If my right to free movement is taken away, it could seriously impact on my ability to support myself & my family.

 

Margaret Hales MBE. Living in Spain

I am President of the European organisation. the European Union of Women (EUW). EUW is an NGO and was founded in 1953; it currently has 16 (and 3 new applicant) member states within the EU and outside it. The President and General Secretary, both currently British, communicate regularly with all members mostly by email and skype conference calls. However, Board and Council meetings, as well as meetings with committees in each of the member states need travel, generally efficiently organised and over a period of a few days, sometimes a few hours. Typically, these are several times a month. Between September and Christmas 2017 the President will travel to Nice, Basel. London (three times), Berlin and Brussels. Most of these flights are from Alicante and require changes in airports in Rome, Geneva, Madrid and Paris. The General Secretary will undertake similar travel starting from London airports. Ease and quickness of travel is essential, including travel without visas and bureaucracy. In addition, EUW has observer status at the UN in New York, Geneva and Vienna, at the Council of Europe in Strasbourg, at OECD in Paris and the International Democrat Union in venues around the world. As President I must be able to travel freely to these important meetings. With a British passport and with Britain within the European Union this is exactly what I am doing and I am fearful that I will be unable to fulfil my duties after Brexit.

 

 

The Specific issue of EU/Switzerland Frontaliers

France/Switzerland

 

Yvonne, Executive Assistant in multinational company based in Geneva, lives in France

I studied Modern Languages (French and Spanish) in the UK. After graduation in the early 90s, I moved to central France where I taught English to young adults for a year. Following that, I took a business course at the local University to broaden my skills.

I subsequently moved to Lyon, France, where I started working in an international IT company (18 different nationalities). I also met my future (French) husband at this time.

We married and our first child was born. At this time my company closed and we moved to Annecy, in the French Alps, for my husband’s job. Our second child was born two years later. I was working part-time temporary assignments but started working full-time for a major French company in 1999, going on business trips within Europe: Germany, Italy and Spain. My job was cut in 2006 and I decided to seek work in neighbouring Geneva, Switzerland. I have been working in Geneva since late 2006 and commute daily from my home in France. I have been working for the last 7 years for a multinational pharmaceutical company.

Since the beginning of this year, my company has opened a training centre in Barcelona, Spain, and I travel there roughly once a month. I am attached to the EMEA regional office and my team is scattered across the whole region. I have travelled to Poland, Turkey, Czech Republic, Italy and Spain for work.

On a personal level, my children, both dual French-British citizens, are students, one in the UK, the other in Geneva. I still have family in the UK: my mother is 83 and in very poor health. I try to see her often, usually every 1-2 months. My nearest airport is Geneva, close to my office. It’s important for me to go, both to spend time with my mother and to provide support for my sister, who’s caring for her.

Without freedom of movement, my life would be exceedingly complicated. Going to work, meeting my daughter for Sunday lunch… From where we are in Haute-Savoie, in order to go to the neighbouring département of Ain, we have no choice but to go through Switzerland. So I need to cross the border twice each way just when I take my car to be serviced! As a cross- border worker who is an EU citizen, I hold a G permit, and this permit is linked to my employer and not me. If I change jobs, I have to apply for a new permit. A company looking to hire someone would probably shy away from someone with complicated paperwork. I’m an executive assistant, not a nuclear physicist: I am lucid that there are many candidates out there like me. My family relies on my salary and will continue to do so for the coming years. I absolutely need to know that I can continue to enjoy complete freedom to live and work as I do.

 

Steve and Debbie, frontaliers, live in France

Steve & I moved to Switzerland (near Geneva) in 2006 after working several years in Asia. Steve was appointed Deputy Principal of the Geneva International School Chataigneraie Campus. Both our sons were at University in the UK at that point.

We initially rented a house in Switzerland but took the decision to buy in France; we moved in 2008 & became frontaliers, which we were able to do easily as EU citizens. We sold our house in the UK in 2009 to help fund work on our new property.

Steve continues to commute to work in Switzerland on a daily basis. He pays his pension etc. in Switzerland, but income tax & health care charges in France, when he retires (compulsory in 2 year’s time) he will receive his pension from Switzerland & some from his previous years’ employment in the UK. We wish to remain in France.

Unable to find employment in Switzerland in my own field (Radiography) I began designing & making jewellery. While living in France a friend & I registered a business (SARL) in Switzerland & had a shop there for 4 years. We no longer have the shop, but I still participate in artisan markets in Switzerland under this registration, although as this is ad hoc rather than regular I would not come under the EU’s definition of a frontier worker. After giving up the physical shop in Switzerland about 3 years ago I registered as a microentrepreneur in France. Without the freedom of movement that as EU citizens allows us to work and run a business in the way we do, our only option would be to look at applying for French citizenship.

 

Katherine, frontalier, lives in France

We live in the Pays de Gex next to the French/Swiss border. We own a house in France, our sole residence, and both my husband and I work in Switzerland. We cross the border 4 and 5 days a week, respectively (I work remotely from home one day per week).

The issue we are most concerned about is our Swiss work permits: currently we hold Swiss G permits (autorisation frontalière valable pour toute la Suisse) which is applicable for EU/AELE citizens. Our permits are applied for on our behalf by our employers, although they then travel with us in the case that we change jobs, as long as they remain valid. They are valid for five years at a time and have to be reapplied for by our employers once they are coming to an end.

Once we are no longer EU citizens we have no idea what our situation in Switzerland will be. We are aware there are “quotas”, albeit not necessarily official ones but they certainly exist, on the numbers of foreigners the Swiss wish to allow through their borders. Will we need to apply for a different type of permit, and if so, what? Will we be allowed to use our current permits until their expiry dates (in my case currently 2021, for my husband 2022)? How will our loss of EU citizenship affect our right to work in Switzerland? Are we going to lose our jobs (and, by association, possibly our home)? These are questions to which we have absolutely no idea of the answers, which is why we are currently in the process of applying for French nationality by naturalisation.

 

 

Italy/Switzerland

 

Language teacher/translator. Living in Italy

I live on the border between Italy and Switzerland, on Lago Maggiore. As such, I benefit from the 20-km rule, giving special treatment to EU citizens in this belt around Switzerland. When I first came to Italy it was as a housewife. I continued to work as an editor and writer as I had done in London, but soon I had a family with my German husband and became a ‘housewife’. We are now divorced and I have been here 14 years. I consider myself a ‘stuck mum’ in that I am convinced that my husband would not allow me to remove my children from Italy (or even this town), and International Law is on his side in that the children must stay in their place of habitual residence. Returning to the UK, therefore, even in a seriously impoverished domestic situation, would not be possible. In fact, if he could prove that I am not providing a suitable home for the children, he could take full custody (at present we have joint custody).

When I separated from my husband, I found that I had to return to work because he did not provide for me to continue to be a stay at home mother. I therefore qualified as a teacher and found a job in Switzerland working as many hours as the language school (a national organisation) can find for me. It comes to about 20 hours a week in full flight. I also work as a freelance translator, editor and writer, paying taxes in Italy. My Swiss income, however, is absolutely vital. I could not survive without it. For each hour I work, I earn significantly more in Switzerland than I would in Italy, or, for that matter, in the UK, partly because incomes are high in relation to Italy, but also because taxes are low. This means I can work part-time and have a reasonable standard of living for me and the (2) children. I have a work permit that allows me to cross the border daily, on the proviso that I return to Italy each night.

It’s my understanding that the permit is for EU citizens only (and of course, residents of the 20- km belt). My nightmare would be to lose my work permit should I cease to be an EU citizen and have to rely solely on Italy’s economy for my income. This means that I would have to work more than full time. If I failed to find sufficient work in Italy, and this is entirely possible, it is also conceivable that my ex would ask the court to change the custody ruling and I would lose the children. I can’t see that it’s possible to stop Brexit, but I simply cannot understand why it’s such a problem to maintain the acquired rights of all those affected, all those who have made the big decisions in their lives and for their futures based on the continued existence of these rights.

 

The Full Document can be downloaded HERE

 

In response to the recent news that 100 deportation letters had been issued, by the Home Office in error, to EU citizens in the UK, British in Europe & the 3Million issued this response. Bremain in Spain is one of the UK Citizens groups that make up the British in Europe coalition.

In the Guardian – 28th August 2017

UK Home Office ‘cannot be trusted’, say EU citizens’ rights groups

 

Campaigners says they will reject any deal giving the Home Office a say in their future after last week’s deportation notice debacle

Campaign groups representing EU citizens seeking to protect their right to remain in the UK after Brexit have warned they will reject any deal that gives the Home Office a say in their future.

Grassroots campaign groups across the UK and Europe wrote to EU negotiators on Monday to say the Home Office “cannot be trusted” following last week’s debacle when the department mistakenly sent up to 100 letters to EU nationals living in the UK ordering them to leave the country or face deportation.

“If serious errors like this can be made whilst the UK is still administering a system based on EU freedom of movement rights, what is likely to happen when it is running its own system, having ‘taken control again’?” asked British in Europe, a coalition of 11 citizen campaign groups across the EU and the UK.

The3million, which campaigns for the rights of EU citizens settled in the UK, said it was also informing the government it was officially opposing the offer of a new immigration category of “settled status” post-Brexit.

This had been described as a “fair and generous” offer by the prime minister in June.

Nicolas Hatton, the co-founder of the3million, said: “We talked to some of the EU citizens who received these letters. It was a terrifying experience for them. We have tightened up our policy over the summer and we have decided we have no option but to oppose the settled status on offer.

“We are saying settled status will put people under the direct rule of the Home Office and that would be fine if the Home Office could be trusted, but we have no confidence in the Home Office. They cannot be trusted.”

As the third round of Brexit talks got under way in Brussels, British in Europe told EU officials that the purpose of the letter was not simply to complain about UK maladministration, but to ask the commission to “focus very closely on this issue in negotiations”.

The Home Office apologised for its error, but British in Europe says the blunder highlights the risks of being at the mercy of the department after Brexit.

The group says it wants the government and the EU to agree that EU citizens can continue to have permanent residency rights that flowed from the EU treaty that also allows British citizens in Europe to live in other member states.

It is also opposed to the application process for settled status and want their rights to be automatically rolled over to the post-Brexit era.

“The British government have pretended for a long time now that they care about EU citizens. We are seeking guarantees for our lifetime, not one, two or five years.

“The ‘settled status’ on offer would give the Home Office extraordinary powers and after last week’s maladministration it is plain to see they cannot have a role here because there is no way the Home Office can guarantee those rights,” said Hatton.

British in Europe, which includes groups representing Britons living in France, Spain, Germany, Belgium and Holland as well as the UK, told EU negotiators in its letter that while it recognised that the Home Office needed to make preparations for withdrawal from the bloc, it did not see why they had to be treated as fresh immigrants under immigration law.

It has suggested that local councils can simply certify EU citizens who are already settled, doing away with a need to apply for immigration status under the Home Office, which runs a “hostile environment” approach to non-EU nationals wishing to enter the UK.

“Clearly, there is a vast difference between designing a system which is applying for a status under UK immigration law (including criminality checks) on the one hand, and a simplified process which could be rolled out to local council level allowing people to ‘certify’ their declaratory rights (RC and PR) on the other hand,” said the letter to the EU.

The British proposal, it says, would also mean EU citizens, who currently have the right to enter and work in the UK, would have a limited right to appeal against Home Office decisions.

“Recently, the UK drastically reduced the appeal rights of those affected by adverse immigration decisions (s.15 Immigration Act 2014), save in the case of EU citizens whose appeal rights were protected by European law,” said the letter.

“Settled status would mean the application of complex UK immigration law procedures to all 3 million, the loss of their existing rights and no guarantees that serious errors, similar to the letters sent last week, won’t happen again.

“There is nothing preventing the British government and the European Unionagreeing to continue the current permanent residence system, albeit with a fairer and simplified application system so that all 3 million EU citizens can apply in confidence with the guarantee they will be able to continue to live their lives as now over their lifetimes,” said British in Europe.

 

Read the Article in the Guardian HERE