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BREXIT

Brexit: What are the main differences between a deal and a no deal for Brits in the EU?

Do you know how a no-deal Brexit would affect your lives in the EU differently to a divorce based on an amicable agreement? Here the British in Europe campaign group spells out the main distinction.

Brexit: What are the main differences between a deal and a no deal for Brits in the EU?
Photo: Depositphotos

Deal

The Withdrawal Agreement (“WA”) sets out our rights fairly fully, though there remains considerable uncertainty as to the implementation of those rights if the agreement is ever ratified. 

There is, for example, still no final list of which countries are opting for a constitutive system of re-registration (Britons would have to re-register for a new residence status after Brexit) under Art. 18.1 of the WA as opposed to the declaratory option under Art. 18.4 (re-registration would not be obligatory).

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No Deal

Grace period: Most EU27 countries have opted for a “grace period” immediately following Brexit, during which most of our EU rights within each host country (i.e. excluding free movement) are said to continue.  The length of the period and the clarity over what these rights will be varies enormously.   

Not all countries have provided details, let alone legislation, on our status and rights following the grace period for example Germany has not. (The German government did announce this week it was adopting a new law on a no-deal Brexit that still needs to pass the parliament).

Those resident in their present host country for less than 5 years:  Here the Commission has not recommended any particular approach, so each country has to formulate its own approach, usually based on its national immigration law for those resident less than 5 years.  There are great variations as between the countries, and a considerable degree of uncertainty even where legislation has been promulgated.

READ ALSO: The ultimate Brexit no-deal checklist for Brits in Spain

Those resident in their host country for 5 or more years:  Here, in addition to national immigration law, the situation is covered by the EU Long Term Residence Directive (“LTR Directive”), which the Commission has encouraged Member States to apply to UKinEU on the basis that their past residence whilst EU citizens should count towards the necessary 5 years.  The main differences between this EU Directive and the WA are:

  • Pre-Brexit absences permitted when applying for long-term residence: before Brexit anyone who has resided in their host state for 5 years is entitled to ‘permanent residence’, a status with enhanced rights: they can be absent for up to 2 yearswithout losing it.  Under the LTR Directive the same person will be denied the enhanced LTR status if they have been absent for a total of 10 months in the previous 5 years.  So permanent residents who have exercised their legal right to be away for up to 2 years pre-Brexit will, by a retrospective rule change, be denied the equivalent long-term status post-Brexit.
  • Absences once you have acquired LTR status: an absence of 1 year from the EU (which of course will include any period in the UK) will be enough to deprive you of any right to remain under the EU’s No Deal contingency plans.  This contrasts with 5 years absence for those with permanent residence under the WA.
  • Conditions for acquiring the new status: the LTR Directive requires States to impose conditions as to available resources and sickness insurance, and they can also require tests of language and knowledge of the country.  The latter tests cannot be required under the WA and the other conditions are more onerous under the LTR  than their equivalents under the WA.
  • Employment: Under the WA UKinEU have equal treatment rights with nationals of the host state.  Under the LTR Directive States may exclude UKinEU from jobs which are reserved to nationals of the State or EU/EEA citizens.  Such jobs include many presently held by British citizens in the public sector, such as teaching.
  • Recognition of qualifications: post-Brexit, UKinEU LTRs will only have the right to equal treatment with nationals under any national scheme for the recognition of qualifications, not under the EU scheme (though pre-Brexit recognitions will continue to be valid in most sectors).  Under the WA the EU scheme would continue to apply to those whose qualifications were recognised, or in the process of being so, by the end of the transition period.
  • Education and training: in contrast to the WA, access to education and training for LTRs may be made subject to language tests, and study grants will only be available in accordance with national law, not EU law.
  • Social security and health care: under the WA the existing systems for reciprocal health care and for social security coordination (including aggregation of pension contributions made in different States) continues.  In a No Deal scenario these come to an end, though some minimal bridging arrangements are proposed.  For UK pensioners this means that their pensions will be frozen at their present value (the WA would prevent this), and vital S1 healthcare (also protected by the WA) comes to an end for all those who are not receiving “or have applied for” treatment at Brexit.
  • Family reunification: the range of people with whom reunification is possible is more limited under the LTR Directive than under the WA (close family).

In addition, and most worryingly, the implementation of the EU LTR Directive in many countries was criticised as “deplorable” in 2011 by the Commission itself, and reform is still under consideration.

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BREXIT

Is new court ruling the end for Britons fighting to remain EU citizens?

The Court of Justice of the European Union confirmed on Thursday that Brexit really does mean that Britons are no longer EU citizens. Claudia Delpero looks at whether there's any other way they can keep their rights.

Is new court ruling the end for Britons fighting to remain EU citizens?

The Court of Justice of the European Union confirmed on Thursday that Britons lost EU citizenship when the UK left the EU, on 1st February 2020. 

It is the first time the EU’s top court has rules on the matter, after a number of legal cases challenged this specific Brexit outcome. The decision also sets a precedent should other countries decide to leave the bloc in the future. 

What has the EU Court decided?

The Court of Justice decided on a case brought by a British woman living in France.

Before Brexit, she could vote and stand as a candidate in her town of residence, Thoux. But after the UK withdrawal from the EU, she was removed from the electoral roll and excluded from the municipal elections that took place in March 2020, during the transition period.  

As the mayor refused her appeal to restore the registration, she took the case to the regional court in Auch, which agreed to request an interpretation of the rules to the EU top court. 

Julien Fouchet, the barrister supporting her and several other cases on the EU citizenship of British nationals, argued that the loss of EU citizenship and voting rights was disproportionate. It would also be contrary to the EU Charter of Fundamental Rights, given that the woman also lost her voting rights in the UK, having lived abroad for more than 15 years.

Alice Bouillez, who has lived in France since 1984 and is married to a French national, could have applied for French citizenship, but did not do so because she said “this was not necessary” before Brexit and, as a former UK official, she had taken an oath of allegiance to the Queen.

On Thursday the Court of Justice announced the decision about her case. The court ruled that the “possession of the nationality of a member state is an essential condition for a person to be able to acquire and retain the status of citizen of the Union and to benefit fully from the rights attaching to that status.”

The court therefore confirmed that British nationals automatically lost their EU citizenship as a result of Brexit and, as a consequence, Britons also lost their voting and electoral rights in municipal elections in the EU (unless the country where they live set different rules). 

What is EU citizenship?

EU citizenship was introduced by the Treaty of Maastricht of 1992, when borders were opening and the bloc was integrating economically after the end of the Cold War. 

Under the treaty, every person holding the nationality of an EU member state is a citizen of the Union. EU citizenship is additional and does not replace nationality, the treaty specifies. But this creates the first form of a transnational citizenship that grants rights across borders.

EU citizens have the right to access each other’s territory, job market and services under the principle of non-discrimination. If they are economically active, they have the right to reside in other EU states and be joined by family members, access healthcare at the same conditions of nationals (for emergency treatment also when travelling temporarily), obtain social security benefits and see their professional qualifications recognised.

Beyond free movement, at the core of EU citizenship there are also political rights, such as participating in the European Parliament election, voting and standing as candidates in municipal elections when living in other EU countries, receiving consular protection from other EU states outside the EU, and taking part in European Citizens’ Initiatives asking to the EU to legislate on certain matters. 

Which EU citizenship rights have Britons lost with Brexit? 

For British citizens who were living in the EU before Brexit, the Withdrawal Agreement protects some of these rights. Britons covered by deal have their residence, access to work and education, healthcare, social security and qualifications secured, but only in the country where they were living before Brexit.

But the right to free movement in other EU states, consular protection in third countries, and the political rights attached to EU citizenship were lost, the Court confirmed. 

For British citizens in the UK, the trade and cooperation agreement has preserved some social security rights and, in theory, the possibility to have professional qualifications recognized when moving to an EU country. These provisions however lack details and may take a long time before they work in practice. 

As the “European Union” no longer features on British passports, the possibility to access EU lanes at airports to skip passport control queues has also vanished. 

“The loss of those treasured rights has been clear to those of us living in the EU from the early days of Brexit. But for Brits in the UK, the realities of life outside the EU, and the consequences of Brexit, are only just dawning. Long queues at the borders, roaming charges, obstacles to working abroad, etc. are the new reality,” said Sue Wilson, Chair of the group Remain in Spain. 

While she said the court’s decision was “no real surprise,” she argued that “this is not the Brexit the public were promised, or that the majority voted for.”

Can British citizens get some of these rights back?

Julien Fouchet was disappointed at the Court decision and promised to continue the legal fight, bringing the case at the European Court of Human Rights (which is not an EU institution). 

Other two cases on the matter of EU citizenship for British nationals are still pending at the Court of Justice of the EU. One of them aims to determine whether EU citizenship is a “fundamental status” that cannot be removed but Thursday’s decision could have already provided the answer.

Another option to reconsider some of the rights is the renegotiation of EU-UK trade agreement, when it will be reviewed in 2025. 

Meanwhile, the EU is revising the rules for non-EU citizens living in EU countries on a long-term basis, making it easier to move across borders. 

Applying for citizenship is so far the only option to regain voting rights, although not all EU countries allow dual nationality. 

Sue Wilson, who has long campaigned for the UK to stay in the EU, said: “There is only one way to restore the loss of our rights, and that’s to rejoin the single market, rejoin the customs union, and eventually, rejoin the European Union… Until that day, we will continue to be second class citizens whose rights have been diminished for the sake of an ideology.”

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