Effect of Brexit- Loss of EU Rights

Brexit, if unaccompanied by any new agreement, would lead to the loss of mutual rights by EU and UK citizens to travel, to work, retire, study or exercise EU citizenship rights in each other’s territory.

The EU rules are set out in the treaty and override domestic measures. They are fleshed out by a number of directives that give effect to the free movement right.

EU nationals do not require a visa to come to the EU. No time limit may be placed on their stay. There are relatively now grounds for exclusion on the basis of public policy, security and public health. These exceptions must be interpreted narrowly and with reference to the particular individual concerned and must be specifically justified.

All  EU nationals have the initial right to reside in another EU state for up to three months. They may reside for more than three months if they are a worker, job seeker self-employed,  student or as self-sufficient persons. They are not subject to a knowledge of English requirement. The latter categories of the person must have sufficient means to maintain themselves. Those in non-economic categories must have special means to maintain themselves and must have adequate health insurance.

After five years lawful residence, are entitled to a right to permanent residence. These rights are just short of citizenship and are permanent long-term rights to reside and stay in the state.

There are extensive rights for EU citizens to have access to domestic services in the host EU state. They are entitled to social services but not social assistance. They are entitled to have their families come and join them in the UK. This may include other dependants. Those family members may take up work. The EU rights are dealt with in detail in other sections.

The difference between the rights for EU nationals and the visa rules have become significant in recent years. The lapsed EU / UK pre-Brexi- Settlement included proposals to clarify and extent scope for non-EU national family members using EU law to obtain a right of residence. The EU and the UK have taken measures against sham marriages which seek to take advantage of the EU rules.

General Considerations

At present, the right to remain and the terms and conditions of residence and to equal treatment, are guaranteed by European Union Law. After Brexit, UK Parliament will have jurisdiction to change these rules. The rules may also change them from time to time. This is subject to international obligations, which the UK may enter the EU.

Such rights may not be directly enforceable by EU residents in the UK (and vice versa) in the same manner as provided for under the EU Treaties. The assertion of treaty right is usually undertaken at state to state level only. This is, subject to any provision for direct enforcement of rights which may be provided in a new UK EU agreement. Such rights are more likely to be granted to existing long-term residents.

It is likely that any agreement entered between the EU and UK in relation to the movement of persons and rights to come to work, will be reciprocal.

The UK and Ireland have committed to maintaining the Common Travel Area. This is stated to be a priority in negotiations. However, ultimately the EU’s position reserves that it must be consistent with EU law. It is not clear whether the UK will be able to apply different criteria for EU nationals. The EU may require equality of treatment with some carve out for the common travel area with the Republic of Ireland.

Non-working categories such as students, self-sufficient persons, retirees and the self-employed may be restricted from working under a new system.

The UK Non-EU Immigration System

After Brexit, the UK will frame its own immigration rules. It is likely that it will be constrained to some significant extent by the terms of any agreement entered with the EU. The relationship that may be negotiated may mean that such citizens have many or most of the same rights they have under the present treaty arrangements.

There may be a provision for a transitional agreement while the full agreement is being finalized.

The UK operates an immigration system as regards non-EEA ountries. Third country nationals including relatives of British citizens are subject to UK immigration law. Non- EU nationals may work in the UK only under a visa granted under the points-based system. In broad terms, after five years of lawful presence, they are entitled to a long-term settlement visa.

The present immigration rules effectively limit the categories of a persons coming to the UK to persons coming as a visitor, a worker with a job offer of a minimum salary or favoured category, a student or family member of a person settled.

The UK points-based immigration systems cater for skilled non-EU workers. It does not generally provide for job seekers directly, although they may have entitlements in other categories such as family members.

The benefit of the points-based system is generally restricted to skilled migrants with a job offer. Spouses must satisfy various criteria including that the principal British worker has an annual income of at least £18,600 plus a certain amount in savings.

Most visas require that the applicant have some knowledge of English. They may be given a temporary permission to stay initially, with scope for an extended visa depending on the particular category.

EU Third Country Visa Rules

Under EU rules,  third-country nationals are subject to visa requirements on entering the EU. Third country nationals who seek residence for longer periods in the EU are subject to EU rules on managed migration including quotas

Highly skilled UK professionals may be required to obtain the EU blue card for highly skilled non-EU nationals or fall within the scope of other visas for inter-corporate transfer There are few rules on low scale workers other than seasonal workers and the self-employed. Much of this is subject to the immigration laws of the state concerned.

Third-country nationals wishing to study in the EU are not entitled to equal treatment with EU nationals in relation to issues such as tuition fees and part-time work. Third-country nationals resident in the EU for more than five years are able to apply for long-term residency. Third-country nationals legally resident who wish to have their family rejoin them must comply with  EU wide rules on a family reunion.

EEA / Switzerland

Free movement of persons based on EU law will end when the UK ceases to be a member of the European Union.If contrary to present UK policy, the UK became a member of the European Economic Area, then arrangements equivalent to free movement will take immediate effects.

The right to free movement allows citizens of the EU (nationals of any other EU state) and EEA and Swiss Citizens to come to and to work in any other state in the EU, EEA, and Switzerland).

There are rights for workers and self-employed persons. There is a right for EU / EEA workers to come to seek work and exercise economic activity as a worker in other states, including the United Kingdom. Self-employed persons may come and establish a business or establish a branch or other secondary base within the other territory.

EEA countries are bound to free movement in the same way as EU states. There have been some minor exceptions in the past in respect of Liechtenstein which is a very small territory of approximately 50,000 persons.

The Citizen Directive applies throughout the European Economic Area and accordingly extends to citizens of Iceland, Liechtenstein, and Norway.

This EU Switzerland arrangement comprises a series of bilateral agreements including a bespoke agreement on freedom of movement. It contains some limitations. There have been instances of countersanctions by the EU for failure by Switzerland following a referendum to give full effect to it.

Precedent for Brakes and Limits

All non-EU nationals seeking  UK residence would need to meet the requisite criteria in the immigration rules. The 2016 (imperative) New  Settlement for the United Kingdom secured by David Cameron sought to put an emergency brake that would have temporarily restricted EU nationals’ access to in-work benefits, in particular, tax credits. This would have been otherwise a breach of the right to equal treatment.

The emergency brake was intended to take effect where there were inflows of workers from other states of an exceptional magnitude over an extended period. It would have authorised UK to limited access to non-contributory in work benefits for up to four years with EU Council permission.

There are precedents for arrangements involving free movement with the possibility of brakes and limitations. The European Economic Area Agreement allows the state parties to apply safeguard measures if serious economic, social or environmental difficulties of a sectoral or regional nature liable to persist arise. They are subject to procedures. They are restricted with regard to the scope and duration to what is strictly necessary in order to remedy the situation. Safeguard measures are subject to consultation with the EEA Joint Committee.

There are special arrangements with Liechtenstein which is allowed to retain provisions applying quantitative limitations for new residents seasonal workers and frontier workers in respect of EU and other EEA nationals. This has been extended on a number of occasions.

Bulgarian and Romanian nationals were subject to a work permit system between 2007 and 2014 until the expiry of the relevant transitional period.

It is unlikely that the wide principles evolved by the  European Union Courts will apply by which direct and indirectly discriminatory provisions (i.e., those which are discriminatory in substance) may be challenged in court by citizens and disapplied in the absence of good objectively justifiable reason.

Work Visas for some or All EU Residents

It is unlikely that visas would be required by EU residents visiting the UK (up to 90 days) residents (and vice versa). However, work permits may be required by  EU nationals who wish to take up employment in the UK.

The EU freedom has effectively allowed migrants to come from other EU states without a job to seek work and in some instances claim benefits.

A work permit system would require EU nationals taking up employment to obtain a work permit. Th criteria for granting a work permit can be may be more or less restrictive,  depending on the relevant criteria.

There are likely to be different approaches to EU nationals depending on their status such as self-employed, employed, self-sufficient students et cetera, which would broadly reflect the principles of the UK’s existing non-EU immigration policy. The arrangement is likely to be reciprocal.

It has been suggested the free movement of workers should be allowed in accordance with the original Treaty of Rome in 1957. This effectively required the worker to have a job offer.

Risk of Labour Shortages If Blanket Visa Requirement

Employers organisations have highlighted the possibility of labour shortages in specific sectors if EU nationals are subject to the standard UK points-based immigration system. Evidence indicates that the EU migrants in low paid jobs who arrived after 2004 are still largely in place in many sectors. Some sectors have a higher level of turnover, whereas others have a much lower level of turnover.

The loss of lower-paid EU workers who would not qualify under existing immigration rules has been pointed out. Proposals have been made for adjustments in immigration policy for particular sectors such as agriculture, horticulture, seasonal agriculture and to other shortage occupation lists.


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