This report covers the latest development in the U.K.-EU Brexit negotiations as concerns the rights of EU citizens in the U.K. and U.K. citizens in the EU, as well as the Republic of Ireland/Northern Ireland border.
On 8 December 2017, the negotiators of the European Union (“EU”) and the United Kingdom released a joint report1 to set out the progress made in the first phase of negotiations regarding the withdrawal of the U.K. from the European Union. The report explains where the parties have reached agreement in principle across the following three areas:
However, the report caveats that “nothing is agreed until everything is agreed.” All commitments have been set out in detail in what will become the official Withdrawal Agreement at the end of the negotiation period in March 2019.
This GMS Flash Alert focuses on points 1 and 2 above.
The joint report is the clearest formulation yet of the rights of EU and U.K. nationals exercising rights under the EU’s free movement of persons Directive 2004/38/EC2 in their respective host countries post-Brexit. It also provides more clarity on the rights of family members of affected persons and the role of the Court of Justice of the European Union (“CJEU”). (For prior coverage, see GMS Flash Alert 2017-112 (28 June 2017).)
While there is little unexpected information in the report, it is a welcome advancement from the uncertainty that EU nationals and businesses in the U.K. have had to contend with since the U.K. voted to leave the EU on 23 June 2016.
Broadly speaking, EU nationals residing in the U.K., and U.K. nationals residing in the EU with their family members, on or before the date of withdrawal (currently assumed to be 29 March 2019, “the specified date” and two years after the U.K. triggered Article 50 of the Treaty on European Union3) are permitted to stay in their U.K. or EU host state. They will also continue to enjoy substantially the same rights and benefits as they currently do.4 Family members can also join at a later date, whether they are resident in an EU state at the specified date or not.
All commitments are fully reciprocal, i.e., apply to EU nationals residing in the U.K. and U.K. nationals residing in the European Union. For clarity, below we set out further details only mentioning EU nationals in the United Kingdom.
Although the first phase of negotiations has shown an encouraging amount of progress in relation to the rights of EU nationals in the U.K., it must be remembered that the joint report only states relatively broad principles and commitments, and these mainly pertain to rights applicable to those EU nationals who benefit from the Withdrawal Agreement, i.e., who are residing in the U.K. on the specified date. We now know that the specified date will be the date of the official withdrawal of the U.K. from the European Union. It is also anticipated that all EU nationals in the U.K. will have to make an application to stay in the U.K. by 29 March 2021 at the latest.
Exact details of how the commitments will be implemented “on the ground” are awaited, as are further provisions on posted workers and the rights of U.K. nationals who move after the specified date to take up residence in another EU member state. Very little is also currently still known regarding processes and requirements applicable to EU nationals who wish to enter the U.K. and reside here post-Brexit. It is anticipated that the second phase of the negotiations will deal with these matters. However, this means it is likely that no clear guidelines will become available for several months.
In effect, although the U.K. and the EU have made clear their support for EU nationals impacted by Brexit, there remains a considerable amount of uncertainty for EU nationals, their families, and their employers which is continuing to make it difficult to plan for even the short-term.
Employers that have not yet communicated the details and potential impact of these issues to their employees should start now. This communication could set out the issues to consider in making applications for permanent residence now in order to beat any later “rush” and administrative delay leading to further uncertainty for some employees.
1 For the “Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union,” click here.
2 For the Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004, click here.
3 For (Foreign and Commonwealth Office) “Consolidated Texts of the EU Treaties as Amended by the Treaty of Lisbon,” click here. (PDF 727 KB)
4 For (Home Office, updated 8 December 2017) “Guidance: Status of EU citizens in the UK: what you need to know,” click here.
5 For (HM Government) “The United Kingdom’s Exit from the European Union: Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU,” click here. (PDF 1.70 MB)
6 According to the joint report, the use of EU law concepts in the citizens’ rights portion of the final Withdrawal Agreement is to be interpreted in line with the case law of the CJEU by the specified date.
7 For “The Agreement,” click here. (PDF 204 KB)
8 For (UK Visas & Immigration) “Guidance: Common travel area (CTA)” (Published 12 April 2013), click here.
The KPMG Legal Services – Immigration Team has a wealth of experience in transactional, advisory, and compliance assurance services. We will be able to advise your business in relation to practical considerations in light of the above changes, as well as what this means for your long-term recruitment and compliance strategies.
Please note the KPMG International member firm in the United States does not provide immigration or labour law services. However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters.
The information contained in this newsletter was submitted by the KPMG International member firm in the United Kingdom.
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