Brexit. A small word with a potentially big consequence: the end of Free Movement for UK citizens. Free movement gives EU citizens the opportunity to live, work, and enjoy equal rights, regardless of which Member State they are in. These rights are not unconditional – EU law gives Member States the right to require that EU citizens register with public authorities and provide evidence that they have a job or other means to support themselves (the UK has, as a Member State of the EU, not chosen to exercise this right). On the 29th of March the United Kingdom will (likely) leave the EU. When it does, UK citizens will lose their EU citizenship, and with it their free movement rights. EU citizenship is a status conferred upon individuals by virtue of their nationality of a Member State of the EU. It signals that they belong to a community of nations and of peoples, and can therefore enjoy privileges in any part of that community. When the UK leaves the EU, it leaves that community, and forfeits those privileges.
This could have significant consequences for UK citizens who have built their lives in the EU, and are now experiencing uncertainty regarding their ability to continue those lives as before.
Scope of the Withdrawal agreement
In the Withdrawal Agreement (WA), agreed in November, the UK and EU negotiating teams attempt to ease the worst of those anxieties by shedding light on the ways in which individuals can secure the continued enjoyment of their rights in the UK and EU. The WA is yet to be approved by the UK Parliament, but it seems unlikely that substantial changes will be made to the rights of residence of individuals – though nothing is certain in the current political climate. This brief summarises the main take-aways for UK citizens in a EU Member State. It cannot, and should not, be used as definite legal advice, as the WA will still be subject to interpretation. It may even undergo changes if UK Parliament fails to approve it.
The WA sets rights of UK citizens in the EU, and EU citizens in the UK, but only covers individuals who have moved before the end of transition (2021, as it now stands). What happens to individuals moving after that date is yet to be resolved, and will probably remain unclear until a Deal on the Future Relationship has been agreed.
Free movement continues until the end of the transition period
Until 2021 (the end of the transition period) individuals’ rights will remain roughly the same. These rights will apply to any UK citizen currently in the EU, as well as to anyone who moves to a Member State before the end of the transition period. This means that UK citizens who are currently living in a Member State will maintain their rights to move freely, study and work, have their professional qualifications recognised, and access healthcare and other social benefits they currently enjoy. Similarly, frontier workers (who live in one Member State but work in another) will continue to be able to travel across borders to their place of work. What’s more, individuals who move to a Member State before the end of the transition period (2021) will also benefit from these rights.
Permanent residence application
Once the transition period ends, individuals who took advantage of free movement before that date will occupy a unique position in the Member State of residence. Any UK citizen who has moved to a Member State before 2021, will be able to remain in the country and, after living there for 5 years, obtain ‘permanent residence’. The State may require that individuals wishing to secure these rights apply with the competent authorities, although the WA specifies this application procedure cannot be onerous or costly. States should also give individuals a minimum of 6 months after transition to make such an application.
Not all Member States have specified whether they will create special application procedures for UK citizens wishing to remain in their territory after Brexit. This is not surprising, as most already require that individuals relying on free movement rights register and provide evidence that they have a job or sufficient means to support themselves. UK citizens in Belgium, for example, must register with local commune upon arrival. The police can make a house call at their declared residence. In general, UK citizens currently in Member States, or arriving before the end of transition, ought to ensure they have fulfilled all necessary registration requirements. This will secure their ability to apply for permanent residence after 5 years.
Does permanent residence guarantee Free Movement?
Although UK citizens already present in the EU can apply for permanent residence, this does not mean UK citizens retain free movement. Permanent residence most likely only guarantees that they be allowed to live, work, study, and enjoy equal treatment with regards to working and social benefits, in the particular State for which they have secured permanent residence. Free movement rights are closely linked to EU citizenship, a status which UK citizens will no longer have, regardless of which country they live in. Under EU law, third country nationals (which UK citizens will be after transition) enjoying permanent residence may still be required to apply for travel visas, and be required to fulfil certain conditions if they want to move to another EU Member State. Member States are also allowed under certain circumstances to apply labour market tests, require compliance with integration measures, or give preference to EU citizens over third-country nationals. The extent to which this will apply to UK citizens is not yet clear and will most likely not be certain until the future relationship between the EU and UK has taken shape.
UK citizens moving after transition: third-country nationals
UK citizens who have not moved to a Member State before the end of transition will not be eligible for permanent residence under the WA. Unless the UK and EU negotiate special rules for UK citizens, they will be considered third-country. It is too early to tell what formalities and conditions they will have to satisfy, and the Political Declaration adopted by the UK and EU teams only stipulates they will end free movement and adopt ‘mobility arrangements’. Only time will tell what these will entail.
In a nutshell: time to move to the EU!
If one thing is clear from the WA, it is that UK citizens who are giving serious thought to moving to the EU should do it relatively soon – before 2021. They will enjoy privileged rights of residence compared to their compatriots making that move in later years. It is highly likely, of course, that the UK and EU will adopt beneficial mobility arrangements after 2021. Moving to the EU will always be possible, in some form or other. The British-European relationship is one which will endure. Yet the favourable conditions of the WA mean moving now may save you a lot of hassle!
For more information our team is at your disposal. You can reach us by email at thierry.decoster@sub-rosa.be.
Magali Eben
Of Counsel Sub Rosa Legal
PhD Candidate - Module Assistant University of Leeds; Scholar in Residence American Bar Association Section of Antitrust Law
