EU citizens proposal: a lawyer examines the detail

Great news has been issued by the good people of the British government to all those EU citizens living in the UK feeling uncertain about their future after Brexit – they could soon qualify for “settled status”. What they must do now, however, is wait. Basically, they should do what they’ve been doing for the past year – and be patient.

This is the main message from the government’s “fair and generous” plan, published as a policy paper on June 26. It should be said that this paper provides many things that do show the government has listened to people’s concerns about this issue. It has, in particular, clearly heard the almost unchallenged agreement that EU citizens already in the UK should be allowed to stay and that removing individuals will be close to impossible.

It is therefore offering the right to apply for settled status to EU citizens who have been living in the UK for five years. This is legally sensible and provides clarity and certainty – particularly since we now know that family members yet to arrive in the UK will be included. In this way, the new status, on paper, promises to be future proof, even after Brexit.

Benefits, pensions and healthcare

Among the greatest concerns for EU citizens living in the UK is what happens to their pensions after Brexit, and what their rights would be in terms of access to healthcare and benefits.

The government is now promising to protect access to UK pensions. It also says it wants to “seek to protect” access to healthcare. It even goes so far as to say that it wants to have an agreement in place that is similar to the existing European health insurance card. This would allow travellers between the UK and the EU continuous access to healthcare when abroad. We need to be realistic, though. Negotiations have only just started and this forms part of a daunting wish list.

Prime minister Theresa May also claims, with this plan, that EU law will no longer apply in the UK through the Court of Justice of the European Union (CJEU). This is mainly a point of principle about sovereignty point rather than a practical move. as there is no practical need. The government argues that new UK laws will be passed to define EU citizen rights after Brexit, so the ties to the CJEU can be cut.

Theoretically, that’s possible but it will be very difficult to completely leave the CJEU’s jurisdiction, unless the UK manages to break free entirely and secure a very distinct deal. Even then, it’s likely that the General Court (part of the CJEU) will oversee that. Even Norway and the other EEA member states have to apply the court’s rules.

Perhaps May is simply trying to keep a promise to pro-Brexit voters: after all, one of the Leave campaign’s more emotive arguments was that Britain needed to “break free” from the European justice system. But this argument has always overlooked the fact that the CJEU can only pass judgement when it’s asked to, and where it has competence. It cannot just jump in and “tell” the UK Supreme Court what to do.

The court’s case law is also highly interwoven with the principles and rights also applying to EU citizens. In a way, even if the UK succeeds in passing matching domestic law, the ECJ could still arguably remain influential. We are, after all, talking about the status of EU citizens in the UK. What’s more, the UK also seems to be overlooking the fact that British citizens living abroad are likely to remain subject to the CJEU.

The flaws

The pledge is being presented as a good deal for EU citizens living in the UK, but many are livid in the wake of this announcement. They have spent months of wages and time on clarifying their status only to be told that unless they intend to become British citizens, the piece of paper they have been worrying about – their residency document – will be worth nothing.

They are “invited” to go through a similar, albeit potentially less painful, process again. The government is promising reasonable costs, but no freebies. It is also promising a streamlined process, but no acceptance of the current documents. Many people have essentially flushed £65 down the drain.

Then there are questions about the various categories of citizen that will be created by these plans. Not only will the UK differentiate between EU citizens and other international members of British society, it will also create subcategories for this group. There will be the good (economically active) and the bad (not working). Access to benefits, healthcare and pensions is promised to the good while the most vulnerable remain ignored – not forgotten, mind you, as they seem to have been deliberately excluded.

How the status will be evidenced is also another matter. Is a system of ID cards going to be implemented? Will it apply only to a specific group within the UK’s population? Interestingly, it was David Davis, the secretary of state for exiting the EU, who once resigned as shadow home secretary over the issue of ID cards, arguing they were intrusive.

The government is suggesting that people with settled status can move away from the UK for two years without losing their rights. This sounds reasonable, but is it realistic? European citizens are used to free movement. How will their border hopping be monitored? Will they be given a unique passport that they use like a loyalty card? When it’s full, will they need to stay put?

The government’s plan is a good start – so long as all the good things in it survive the legislative process. It’s not the worst possible offering, but it is far from being the best.

Anne Wesemann, Lecturer in Law, The Open University.

This article was originally published on The Conversation. Read the original article.