BREXIT vs. (Employee) Freedom of Movement
I. Background and status of negotiations
It has now been over one and a half years since the United Kingdom resolved, in a referendum held on 23 June 2016, with the slimmest majority thinkable (51.9% / 48.1%), to leave the EU. A period of “shock” and paralysis on both sides was followed by highly controversial political and legal discussions regarding the resulting consequences. As the result of these discussions, Prime Minister Theresa May submitted a written notification to the European Council on 29 March 2017, declaring the exit which, however, would not come into effect until after the expiry of two years. Unless the Council agrees otherwise with the exiting nation, European contracts will therefore no longer apply two years from the date of the formal application, i.e. after 28 March 2019, according to Art. 50 para. 3 TEU, provided that this extension is granted in mutual agreement of all member states.
Negotiations on the conditions of the exit have been ongoing between the United Kingdom and the EU for several months. Initially, the negotiations on the United Kingdom’s exit from the EU were conducted without many details becoming public. For a long period of time, it was not even clear whether and to what extent the negotiations could be promptly concluded by the deadline which was set when the exit declaration was submitted. The question of maintaining freedom of mobility for employees is an important one. The EU, in particular, has always indicated that it is not prepared to maintain the privileges of visa waivers and employee freedom of movement independent of other freedoms (movement of goods; services; capital). The idea of establishing quotas, i.e. numerical caps, was also rejected. The negotiators for the United Kingdom have always rejected separate solutions of individual questions, in contrast demanding further concessions on their part regarding financial compensation and the question of borders with Ireland in return for the more or less unrestricted continuation of the aforementioned freedoms, at least with respect to the free movement of goods and employees.
The United Kingdom’s exit from the EU would affect approximately 3 million EU citizens who are currently living temporarily or permanently in the United Kingdom, as well as approximately 1 million British citizens who live outside of the United Kingdom in EU member states. These are estimates; due to the current regulations on free movement, citizens were not obligated to register apart from generally applicable registration requirements for everyone in some countries, such as in Germany. Apart from this, even the estimated figures indicate how explosive this issue is.
Now, negotiators have apparently come to their first breakthrough in negotiations a few weeks before Christmas and after countless tenacious rounds of negotiations (lasting over 6 months), most of which ended in mutual finger-pointing. In the early morning on 7 December 2017, President of the European Commission Jean-Claude Juncker and British Prime Minister Theresa May held a press conference to announce an “initial breakthrough” in negotiations. The European Commission recommended to the European Council (Article 50) that it determine sufficient progress had been made in the first phase of Article 50 negotiations with the United Kingdom. It must now decide by 15 December 2017 whether sufficient progress actually has been made so that the second phase of negotiations may begin.
II. Content of the agreement
Following tenacious negotiations, negotiators have now agreed on the following basic points in the first round of negotiations related to the rights of their citizens:
- Freedom of mobility
EU citizens who are legally living either permanently or temporarily in the United Kingdom at the time it leaves the EU may continue to live, work, and study there. The same applies to British citizens who live in an EU member state.
Persons living temporarily or permanently in the United Kingdom at the time of the exit or the exit agreement can also remain in the country. The same applies to British citizens who are legally living in an EU member state. This also applies to persons living with them in non-marital relationships. EU negotiators rejected a request by negotiators from the United Kingdom that a regulation be concluded regarding British citizens who move to an EU member state after the date of record, stating that they had no mandate to conclude such a regulation and that such matters would be decided by later agreement.
- Family members
EU citizens who are already permanently or temporarily living in the United Kingdom at the time of its exit from the EU have a claim for family unification, including with family members who do not yet live with them.
In addition to spouses (or persons with equivalent status), this also affects parents and children (including children born after the date of record). The applicable regulations of national law will apply to all other family members.
- Social security
EU citizens who are already living in the United Kingdom at the time it exits the EU, as well as British citizens who live in an EU member state, will retain their claims to health and pension insurance as well as other social security benefits and/or these benefits shall be mutually taken into account.
- Administrative procedures
The United Kingdom promises EU citizens in its country a special residential status that ensures their rights and that they shall be able to apply for easily and at low cost.
EU citizens living permanently or temporarily in the United Kingdom can have their status clarified before the responsible administrative agencies up to two years after the date of record. Decisions shall be made exclusively according to the exit agreement, without any further discretionary powers. The procedure shall be designed to be fast, simple, and citizen-friendly, and shall be free of charge.
- Case law
EU citizens can only make claims for the aforementioned rights before British courts; however, these courts will consult the case law of the European Court for a transitional period of 8 years, and can also submit questions to the European Court.
- Right to permanent residency
The right of EU citizens to permanent residency after they have been in the United Kingdoms for 5 years will be retained, whereby the requirements for having a claim will still be regulated under European law. Time spent in the country before the exit will be taken into consideration, and temporary stays outside of the United Kingdom for good cause (of up to 6 months within a period of 12 months) will be neglected. Only after 5 years will an EU citizen living outside of the United Kingdom lose their claim for permanent residency. Existing permanent residency documents should be converted free of charge, conditional upon an identity check, a criminal background and security check, and the assurance and confirmation of ongoing residency.
We will have to wait and see how these negotiated framework conditions will be filled out in detail now as negotiations continue.
All that has been achieved is an “initial breakthrough”. If the Council takes the Commission’s suggestion and initiates the second round of negotiations, further very difficult negotiations regarding detailed questions will follow. These will show whether the negotiators’ positions, ostentatiously listed in the final report in two columns bearing identical text, all highlighted in “green” in the third column, are indeed mutually agreed positions. If these negotiations are also concluded successfully, the path to an exit agreement remains nevertheless full of obstacles and indeed almost impossible to tread – a political mine field throughout. This is all the more true because of the time pressure caused by the fact that the exit agreement still needs to be ratified by member states. Any extension of the two year negotiation window, which would only be possible by mutual agreement, seems highly unlikely and would always be bound up with a risk that a member state could “throw a wrench into things” or demand significant concessions in other areas before agreeing to such an extension. At the end of the negotiations, nevertheless, we must expect a compromise which is bearable for both sides – even though we cannot predict its content. It’s going to be exciting – stay tuned!