EU Rights Clinic and FEANTSA welcome the European Commission’s decision to send a reasoned opinion to Belgium on the registration of residence of EU jobseekers due to the failure of the Belgian authorities to take adequate action to address the concerns raised in its letter of formal notice issued in July 2022 (INFR(2022)4023).

This follows the formal complaint lodged by EU Rights Clinic and FEANTSA against Belgium for non-compliance with the ruling on the rights of EU jobseekers handed down by the EU Court of Justice in case number C-710/19 G.M.A. in December 2020.

The complaint addressed the ongoing non-compliance by the Belgian Immigration Office with EU law in the refusal to register the right of residence of jobseekers on the basis that they have not demonstrated a genuine chance of finding employment in the first six months of their residence, even if they can prove they are genuinely looking for work.

The application of the offending legislation remains a problem in practice, with jobseekers continuing to be refused registration of their residence by the Belgian Immigration Office.

Despite the judgment of the EU Court of Justice, Belgium’s legislation has still not been amended to address the issues of non-compliance identified by the Court of Justice EU in its ruling. As a result, the Belgian rules still require EU jobseekers who apply for registration of their residence to demonstrate not only that they are looking for work but also that they have a genuine chance of being engaged, in direct contravention of the ruling.

Indeed, recent case law shows that the Belgian immigration office has continued to refuse to register EU jobseekers before they have been allowed to look for work for at least 6 months (for example, CALL judgments No 276 421 of 24.08.22 and No 281 486 of 06.12.2022) or because they failed to provide evidence of having a genuine chance of being engaged when they first applied for registration of their residence (CALL judgment No 270 728 of 31.03.22).

The Belgian rules have also been used to deny residence rights to British beneficiaries of the Withdrawal Agreement who registered as jobseekers before 31 December 2020 (CALL judgments No 272 170 of 29.04.22, No 281 921 of 15.12.2 and No 284 600 and 284 602 of 10.02.23).

Considering the persistent nature of this infringement and the lack of political will by the Belgian authorities to respect EU law, the EU Rights Clinic and FEANTSA call upon the Commission to bring proceedings before the European Court of Justice without further delay.

EU Rights Clinic and FEANTSA have also raised the matter before the European Parliament by way of petition.

Background notes:

1. In 2016, Mr. G.M.A. who is a Greek national applied to register his residence as a jobseeker. However, the Belgian Immigration Office subsequently refused G.M.A. permission to stay for more than three months, based on the fact that he could not provide evidence of having a genuine chance of being engaged, according to the Immigration Office in Belgium.
2. With the support of the EU Rights Clinic and FEANTSA, Mr. G.M.A. appealed against the decision before the Belgian courts, which referred the matter to the EU Court of Justice for a binding legal opinion on the interpretation of the relevant EU rules.
3. On 17 December 2020, the EU Court of Justice handed down its judgment in Case C-710/19 G.M.A. regarding the interpretation of the EU rules on the free movement of workers.
4. In its ruling, the Court explicitly ruled that the Belgian authorities cannot require jobseekers to demonstrate that they are seeking employment when they first register (paras. 48-50 of the judgment)  and has held that the obligation to provide a “genuine chance of being engaged” may only legitimately be imposed on jobseekers after they have been given a “reasonable period of time” to find work (para. 27).
5. In view of the fact that this situation has persisted in Belgium for several years, our complaint urged the Commission to take a strong enforcement stance and bring formal infringement proceedings against Belgium under Article 258 of the Treaty for the Functioning of the European Union.
6. In July 2022, the Commission initiated infringement proceedings against Belgium on the basis of our complaint. The Belgian authorities were given two months to respond to the Commission’s Letter of Formal Notice.
7. In view of the inadequate response given by the Belgian authorities, the Commission has proceeded to the next stage of the infringement procedure by issuing a Reasoned Opinion against Belgium.
8. For further background on the issue, please visit: Euronews ‘Belgium says jobless Europeans not welcome’ and Brussels Times ‘Belgium sent 15,000 EU citizens home in the last decade’

The EU Rights Clinic is a collaboration between ECAS and the University of Kent in Brussels. As part of the project led by FEANTSA on Protecting the Rights of Destitute EU mobile Citizens, which is funded by EPIM, the EU Rights Clinic is engaging in strategic litigation in respect of breaches of free movement rights in EU Member States which affect EU citizens who are at risk of destitution.

The EU Rights Clinic and FEANTSA welcome the decision by the European Commission to open formal infringement proceedings against Belgium for its failure to comply with the ruling on the rights of EU jobseekers handed down by the EU Court of Justice in Case C-710/19 G.M.A. in December 2020.

This follows the lodging of a joint complaint by the EU Rights Clinic and FEANTSA in October 2021 against Belgium for non-compliance with the judgment. The complaint addressed the ongoing non-compliance with EU law by the Belgian Immigration Office in its refusal to register the right of residence of jobseekers on the basis that they have not demonstrated a genuine chance of finding employment in the first six months of their residence, even if they can prove they are genuinely looking for work.

The application of the offending legislation remains a problem in practice, with jobseekers continuing to be refused registration of their residence by the Belgian Immigration Office. In view of the fact that this situation has persisted in Belgium for several years (see here and here), our complaint urged the Commission to take a strong enforcement stance and bring formal infringement proceedings against Belgium under Article 258 of the Treaty for the Functioning of the European Union

The European Commission has agreed with our joint assessment and decided to send a letter of formal notice to Belgium because it considers that Belgium’s rules for first-time EU jobseekers are contrary to EU law.

Belgium now has two months to take the necessary measures to comply with the ruling. In the event the Belgian authorities fail to take the appropriate measures and amend its offending legislation, the Commission may decide to send a reasoned opinion before bringing the matter before the EU Court of Justice in an action for Belgium’s failure to fulfil its obligations.

The EU Rights Clinic and FEANTSA will continue to advocate for the Commission to ensure Belgium complies with the European court’s ruling in the GMA case.

Factual background

1. In 2016, Mr. G.M.A.  who is a Greek national applied to register his residence as a jobseeker. However, the Belgian Immigration Office subsequently refused G.M.A. permission to stay for more than three months, based on the fact that he could not provide evidence of having a genuine chance of being engaged, according to the Immigration Office in Belgium.
2. With the support of the EU Rights Clinic and FEANTSA, Mr. G.M.A. appealed against the decision before the Belgian courts, which referred the matter to the EU Court of Justice for a binding legal opinion on the interpretation of the relevant EU rules.
3. On 17 December 2020, the EU Court of Justice handed down its judgment in case C-710/19 M.A regarding the interpretation of the EU rules on the free movement of workers.
4. In its ruling, the Court explicitly ruled that the Belgian authorities cannot require jobseekers to demonstrate that they are seeking employment when they first registerand has held that the obligation to provide a “genuine chance of being engaged” may only legitimately be imposed on jobseekers after they have been given a “reasonable period of time” to find work, which should generally be at least six months. 
5. Belgian legislation has still not been amended to address the issues of non-compliance identified by the Court of Justice EU in its ruling. As a result, Belgian law still requires EU jobseekers who apply for registration of their residence to demonstrate not only that they are looking for work but also that they have a genuine chance of being engaged, in direct contravention of the ruling.
6. The application of the law is also a problem under the Brexit Withdrawal Agreement respect with British citizens being denied the right to continue residing in Belgium as demonstrated by a recent ruling of the Belgian Council for Alien Law Litigation (judgment No 272 170 of 29 April 2022).

The EU Rights Clinic is a collaboration between ECAS and the University of Kent in Brussels. As part of the project led by FEANTSA on Protecting the Rights of Destitute EU mobile Citizens, which is funded by EPIM, the EU Rights Clinic is engaging in strategic litigation in respect of breaches of free movement rights in EU Member States which affect EU citizens who are at risk of destitution.

The EU Rights Clinic is conducting a survey on problems which UK nationals and their family members may have encountered when applying for an M card or frontier worker permit to secure their residence in Belgium after Brexit. The EU Rights Clinic is a law clinic based in Brussels which specialises in free movement rights. All responses are collated anonymously and will be used to advocate for the rights of UK nationals before the EU institutions. The survey runs until 31 May 2022.

Please complete this survey to help us with our research on how Brexit and the M card process was rolled out in Belgium. 

The purpose of this survey is to identify systemic problems in the issuance of resident cards to UK nationals who have chosen to make Belgium their home or frontier worker permits to those who want to continue working there while residing elsewhere​. In the event such problems are identified, we intend on raising the matter further with the EU and Belgian authorities. We also intend on publishing results of the survey together with our analysis.

You can fill this survey in if you are a UK national who lived in Belgium before 31 December 2020, or a family member of a UK national, or someone who applied for a frontier worker permit. This survey is anonymous and no personal data will be collected or shared. Please fill in one survey per person. 

You will have an opportunity to provide further explanation on your situation at the end of the survey, but please do not share personal information.

The survey can be found here.

The EU Rights Clinic and FEANTSA have lodged a formal complaint today to the European Commission against Belgium for non-compliance with the ruling on the rights of EU jobseekers handed down by the EU Court of Justice in Case C-710/19 G.M.A. in December 2020.

The complaint by the EU Rights Clinic and FEANTSA addressed the ongoing non-compliance with EU law by the Belgian Immigration Office in its refusal to register the right of residence of jobseekers on the basis that they have not demonstrated a genuine chance of finding employment in the first six months of their residence, even if they can prove they are genuinely looking for work.

The application of the offending legislation remains a problem in practice, with jobseekers continuing to be refused registration of their residence by the Belgian Immigration Office. In view of the fact that this situation has persisted in Belgium for several years (see here and here), our complaint urges the Commission to take a strong enforcement stance and bring formal infringement proceedings against Belgium under Article 258 of the Treaty for the Functioning of the European Union.

In 2016, Mr. G.M.A.  who is a Greek national applied to register his residence as a jobseeker. However, the Belgian Immigration Office subsequently refused G.M.A. permission to stay for more than three months, based on the fact that he could not provide evidence of having a genuine chance of being engaged, according to the Immigration Office in Belgium.

With the support of the EU Rights Clinic and FEANTSA, Mr. G.M.A. appealed against the decision before the Belgian courts, which referred the matter to the EU Court of Justice for a binding legal opinion on the interpretation of the relevant EU rules.

On 17 December 2020, the EU Court of Justice handed down its judgment in case C-710/19 G.M.A regarding the interpretation of the EU rules on the free movement of workers.

In its ruling, the Court explicitly ruled that the Belgian authorities cannot require jobseekers to demonstrate that they are seeking employment when they first register and has held that the obligation to provide a “genuine chance of being engaged” may only legitimately be imposed on jobseekers after they have been given a “reasonable period of time” to find work, which should generally be at least six months.

Belgium legislation has still not been amended to address the issues of non-compliance identified by the Court of Justice EU in its ruling. As a result, Belgian law still requires EU jobseekers who apply for registration of their residence to demonstrate not only that they are looking for work but also that they have a genuine chance of being engaged, in direct contravention of the ruling.

In conjunction with the complaint submitted today to the Commission, the EU Rights Clinic and FEANTSA will also be submitting a petition to the European Parliament and to the national authorities in Belgium including the Federal Ombudsperson and the Federal Migration Centre Myria.

You can read the executive summary of the complaint.  

The EU Rights Clinic is a collaboration between ECAS and the University of Kent in Brussels. As part of the project led by FEANTSA on Protecting the Rights of Destitute EU mobile Citizens, which is funded by EPIM, the EU Rights Clinic is engaging in strategic litigation in respect of breaches of free movement rights in EU Member States which affect EU citizens who are at risk of destitution.

The EU Rights Clinic has launched a survey to identify recurring issues with the EU Settlement Scheme.

Following the United Kingdom’s exit from the EU, the Withdrawal Agreement aims to protect the rights of EU nationals living in the United Kingdom. Pursuant to this Agreement, as well as agreements reached with EEA countries and Switzerland, the UK has introduced the EU Settlement Scheme, which enables EU, EEA and Swiss nationals to apply for a special immigration status that allows them to remain in the UK after  Brexit.

Since the scheme was opened for applications, numerous issues have been reported (examples can be found here, here, and here) and extensive reports highlighting problems have been produced by the3million and the University of York’s EU Rights and Brexit Hub among others.

In view of these problems, the EU Rights Clinic is currently conducting a survey (which can be found here) on the EU Settlement Scheme and its application to date. The aim of this survey is to obtain data on applicants’ experiences with the scheme, which may then be used to file official complaints with theIndependent Monitoring Authorityand theEU institutions.

Possible issues include, but are not limited to:

• Technical issues, such as the application not being available on specific phone operating software, problems scanning the ID documents or non-biometric passports, problems with accessing the website, problems in proving presence in the UK, etc.
• Covid-19-related issues, especially those caused by the various lockdown phases and the restrictions on international travel which may have impacted on the ability of EU citizens to return to the UK.
• Issues caused by the use of a “digital status” and the lack of a physical residence card, which makes it difficult for EU, EEA, and Swiss nationals to prove their status in the UK .

If you have applied, or intend to apply, or are not yet sure about applying to the EU Settlement Scheme, we would like to hear your views and experiences. If you are an adviser or legal representative, we would also welcome you sharing the details of any problems your clients may have encountered when applying for EU settled or pre-settled status.

We would greatly appreciate you taking the time to participate in this survey. Your experience will contribute to our research into the larger picture of how successfully the rights of EU, EEA, and Swiss nationals have been protected post-Brexit.

Any data obtained through the survey will be treated confidentially, and no personal information will be mentioned in any formal complaint. All results obtained through this survey will be presented in an anonymous fashion.

For further information on the survey, and how to participate in the survey itself, please follow this link: https://kent.onlinesurveys.ac.uk/euss-survey. If you have any questions or concerns about answering the survey or the survey itself, please contact us at rights.clinic@ecas.org

A re-orientation towards strategic litigation and advocacy efforts has been underway at the EU Rights Clinic since 2019. The aim is to focus our efforts on more targeted action against systematic breaches of EU free movement rights by national authorities which create visible and hidden barriers to European citizenship rights.

As a result of this change in focus, a request for individual advice will only be taken up where there is a clear opportunity for strategic litigation or to support on-going advocacy efforts. All other requests for legal assistance are now referred to Your Europe Advice in the first instance.

Strategic Litigation

The objective of strategic litigation is to bring cases before the national courts – wherever possible seeking the intervention of the EU Court of Justice – to challenge systematic breaches of EU free movement rights committed by the Member States.

The cases taken on by the EU Rights Clinic tend to represent specific instances which are reflective of a wider pattern of systematic administrative or judicial practices that obstruct or restrict the exercise of free movement rights of EU citizens and their family members.

The Clinic currently has six live appeals pending before the Belgian, French and UK courts.

Three of these cases are on final appeal before the Belgian Council of State.

Examples of on-going strategic litigation undertaken by the EU Rights Clinic include:

• Jobseekers: challenging an expulsion order issued against a Greek citizen on the basis that the person did not find work within five months of his arrival in Belgium. The case relates to the length of time which a jobseeker should be permitted in order to find work as well as challenging the limited scope of judicial appeals in residence-related cases. The case was filed in 2016 before the Belgian Council for Alien Law Litigation and subsequently appealed before the Belgian Council of State in 2018. The case has been referred to the EU Court of Justice for a preliminary ruling in Case C-710/19 G.M.A..
• Family reunification: challenging a refusal to grant a residence card to a French partner of a Belgian citizen on the basis that the couple did not have sufficient resources. The case focusses on the failure of the Belgian Immigration Office to make an individual assessment of the couple’s resources. The case was filed in 2017 and is pending before the Council for Alien Law Litigation.
• Permanent residence: challenging a refusal by the French authorities to grant a permanent residence card to a British citizen. The case relates to the imposition of a minimum resource requirement on a self-employed person. The case was lodged in 2018 is pending before the Administrative Tribunal in Rennes.

Further opportunities for strategic litigation which have been identified include national practices that impose a narrow definition of the status of a worker (particularly part-time workers) or a narrow interpretation of how jobseeker demonstrate a genuine chance of being engaged, as well as the refusal to allow homeless persons to register and the refusal to accept permanent residence status regardless of possession of a residence card. It is also anticipated that future strategic litigation efforts will extend to post-Brexit rights of British citizens residing in the EU and EU citizens in the UK.

Advocacy efforts

The objective of the Clinic’s strategic advocacy efforts is to encourage the EU institutions to monitor and prosecute systematic breaches of the EU rules on the free movement of persons.

The Clinic continued its advocacy efforts in respect of the following cases:

• Petition No 1211/2017 on Sweden’s failure to comply with EU law in respect of issuing the personal identification number (personnummer) to EU citizens and their families (register you support here);
• Petition No 0627/2018 on the protection of citizens’ rights in the context of Brexit (exclusion of certain citizens’ rights from Withdrawal Agreement) (register you support here);
• Petition No 0923/2018 on the implementation of Directive 2004/38/EC in Sweden (residence card delays) (register you support here);
• Petition No 0925/2018 on the implementation of Directive 2004/38/EC in France (problems with residence formalities) (register you support here);
• Petition No 0926/2018 on the compatibility with EU law of the UK’s new EU Settlement Scheme for EU citizens residing in the UK (post-Brexit rules) (register you support here);
• Petition No 0927/2018 on the implementation of Directive 2004/38/EC in Belgium (systematic verification of residence rights) (register you support here); and
• Petition No 0566/2013 on discrimination by Spain in respect of assets declarations (register you support here).

All of the above petitions were also the subject of formal complaints to the European Commission requesting the launch of formal infringement proceedings under Article 258 TFEU against the Member State concerned.

Hearings were last held by the European Parliament in October 2019 in which all petitions submitted by the Clinic were discussed. Following debates, the Committee on Petitions resolved to keep every petition open. The Committee also agreed to write to the national governments to enquire what is being done to resolve these issues. Attendance of hearings in person in 2020 has been suspended due to the COVID-19 pandemic.

Future advocacy efforts will relate to on-going investigations being conducted by the Clinic, including breaches of the Withdrawal Agreement by the UK and other Member, EU data protection laws as regards mobile EU citizens’ rights and breaches of the simplified visa rules which should benefit their non-EU family members by several EU member states.

Research, outreach and dissemination

The Clinic is currently involved on a research project examining residence formalities in Belgian municipalities on behalf of the Belgian federal migration agency, Myria.

In addition, the work of the Clinic has featured in an article authored by the Clinic’s founder entitled “EU Citizens’ Rights in Practice: Exploring the Implementation Gap in Free Movement Law” which was published in the European Journal of Migration and Law, one of the leading academic peer-reviewed publications in this field of EU law.

The Clinic continues to get involved in outreach efforts. Recent activities include presentations at AMA (the Belgian federation for homeless shelters), the Civic Observatory on the Rights of EU Citizens (CORE), the ELSA summer school in migration law held at the University of Kent, the Università degli studi di Palermo and Equinet (the European network of equality bodies).

#DeniedMyVote

Following on from numerous press reports (see here, here and here, with analysis here), the EU Rights Clinic has started receiving complaints from EU citizens who were refused their right to participate in elections to the European Parliament.

EU citizens have reported being turned away from polling stations throughout the UK on 23 May 2019 even though they had registered on the electoral roll.

It appears the reason for this was that councils had not been able to process registrations on time given that EU citizens were required not only to register on the electoral roll, but also to submit Form UC1 containing a declaration that they would only vote in EP elections in the UK.

This was an additional formality that did not apply to British citizens wherever they might live.

The imposition of such an additional formality is clearly discriminatory given that Article 22(2) of the Treaty on the Functioning of the EU provides that “every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State”.

The complaints received by the EU Rights Clinic are presently being analysed with a view to submitting an official complaint to the EU institutions.

We also invite you to lodge an official complaint with your local electoral registration office.

If you have been affected, please do get in touch to share your experiences with us by email to rights.clinic@ecas.org with the title “EP elections 2019” – please include your full name, post code and council where you voted, as well as details of your experience.

In a complaint submitted today to the European Commission, the EU Rights Clinic has challenged France’s breach of EU law in its duty to issue residence documents to EU citizens.

The complaint points to the systematic failure of French municipal authorities to issue residence documentation to EU citizens. The complaint is being raised in view of the risks posed to the ability of British citizens to continue living in France after Brexit.

The complaint contains details of over 20 individuals lawfully residing in France who have been refused residence documents contrary to EU law. Under EU law, the national authorities are required to issue residence documentation to those EU citizens who request them. The documentation should be valid for five years or more. However, the individuals concerned were either wrongfully issued with a residence card valid or with a reduced period of time, or they were simply turned away.

The complaint reveals various practices among local municipalities, pointing to multiple interpretations of French rules and confusion among French officials. While France does not require its EU citizens to register, residence documents allow EU citizens to prove their lawful residence in the country and apply for permanent residence after five years.

This is particularly important in the context of Brexit, because British citizens run the risk of being refused residency after the UK leaves the EU if they cannot prove their lawful residence in an EU country. Additionally,  British citizens are often told that their case will not be treated until after Brexit. However, EU law remains effective for as long as the United Kingdom remains a Member State of the EU.

Such failures also impact British citizens’ entitlement to access other public entities such as job centres and child benefit offices, as well as their ability to carry out administrative procedures such as registering a vehicle.

The EU Rights Clinic has demanded that the European Commission take robust enforcement action against France to ensure it complies fully with EU law. A petition will also be lodged in parallel before the European Parliament.

Read the Executive Summary of the complaint here

The EU Rights Clinic is a collaboration between ECAS and the University of Kent in Brussels. As part of the ACT for Free Movement project, funded by EPIM, the EU Rights Clinic is investigating cases of breaches of free movement rights in EU Member States.

This article first appeared on Europe Street News © all rights reserved by Europe Street News.

Deal or no deal? That is the question. Despite the promise that nothing will change for them, both EU nationals living in the UK and British residents in the rest of the EU are to lose out from Brexit. The situation could even be worsened if there is no agreement on the terms of the UK’s departure from the European Union. The failure of talks at the EU summit in Salzburg this week did not offer assurances in this regard, leaving people whose status depends on EU treaties in a troubling state of uncertainty.

This is an overview of what can happen to the rights of 3.7 million EU citizens who are living in the UK and 1.2 million British citizens who are living in another EU country after Brexit. As inconceivable as it was before the EU referendum, the overview shows the rights preserved and lost under the draft “deal” published in March and in the event of “no deal”.

In short, the right to family reunion, the ability to exercise professional activities across countries and to participate in political life, will be weakened under the draft withdrawal agreement. But in the case of “no deal”, there will be even heavier consequences in terms of potential loss of acquired pension rights, free or subsidised healthcare when travelling and ability to provide services across borders.

Free movement rights

Entry without visa. People covered by the withdrawal agreement will continue to move across EU and UK borders without a visa and their non-EU family members will be issued visas for free through an accelerated procedure. In the event of “no deal”, UK nationals who hold a residence card from any EU country will be able to travel within the EU without the need for a visa. Similarly, EU nationals who hold settled or pre-settled status in the UK will not need a visa to enter the country. However, non-EU family members will no longer benefit from visas free of charge.

Residence, work and study. The rights to reside, work and study in the current country of residence are preserved in the withdrawal agreement. However, EU nationals in the UK will have to apply for settled status (also reported here) and be subject to criminality checks, instead of benefing from the automatic entitlement to residence deriving from EU treaties. EU countries may also introduce similar requirements for British residents, but no Member State has so far expressed an intention to do so. The requirement for non-economically active citizens to have “comprehensive sickness insurance” to attain permanent residence will not apply for EU citizens seeking settled status in the UK, but has been carried forward for UK nationals living in the EU. A “no deal” is not expected to reverse the UK decision to introduce the new settled status for EU nationals (also reported here), but domestic immigration laws will apply to British citizens in EU countries, instead of the more generous rules under the withdrawal agreement.

Family reunion. Under the withdrawal agreement, family members (including close relatives, partners in a durable relationship, and other persons whose presence is required, such as carers) irrespective of their nationality, can join people covered by the withdrawal agreement in the country of residence, as long as the relationship existed before 31 December 2020 (the end of the Brexit transitional period). Future family members (except children) will face tougher immigration laws if their relationship begins after 31 December 2020. In the event of “no deal”, family members of EU citizens in the UK will benefit from the new settled status only if they are already in the UK. British citizens living in the EU will have to comply with the family reunification rules of the EU country of residence.

Non-discrimination. People covered by the withdrawal agreement will continue to enjoy equal treatment with nationals as regards employment, working conditions, university tuition fees and all other social and tax benefits. In the event of “no deal” the right to non-discrimination will be governed by national law. EU citizens in the UK who obtain the new settled status should be able to benefit from full access to work and public funds, as is presently the case for persons with ‘indefinite leave to remain’ (the permanent residence status for non-EU nationals). The situation of EU citizens with pre-settled status is unclear. By becoming ‘third country nationals’ under EU law, British citizens in the EU will be able to benefit from some more limited rights to non-discrimination.

Continuous free movement in the EU. British nationals in the EU will lose this right, unless it is negotiated as part of the future EU-UK relation. As ‘third country nationals’ who are long-term residents, the Schengen rules would not provide them an unfettered right  to move to another member state. EU citizens will obviously maintain the right to move freely within the EU.

Resuming residence after a period abroad. People covered by the withdrawal agreement will be able to leave the host country for up to five years without losing their residence status. This is more generous than the two years currently allowed under EU law, but is not comparable to the life-long right provided by free movement rules. An absence of more than five years means protection under the withdrawal agreement is lost and resuming residence would require complying with national immigration laws. A “no-deal” is not expected to reverse the decision to introduce the new settled status and allow an absence of up to five years for EU citizens in the UK. The right for UK nationals in the EU would be covered by Schengen rules or by national rules for countries not part of the Schengen area. The Schengen rules allow long-term residents an absence of 12 months.

Return to home country with non-EU family members. The right of EU and UK nationals to return to the home country and take up residence with their non-EU family members is not protected in the withdrawal agreement, although it has been recognised by a high profile ruling of the European Court of Justice. This means that a British national having resided in the EU will no longer be able to claim the automatic benefit of EU residence for non-EU family members, if they return to the UK after 31 December 2020. Similarly, more onerous rules may apply for EU citizens with non-EU family members returning from the UK, which will be at that point a ‘third country’. “No deal” would mean this right will no longer exist from 30 March 2019 (for British citizens returning home, possibly at a later date whenever the UK authorities revoke the Immigration (EEA) Regulations 2016).

Social security rights

Social security and pension coordination. People covered by the withdrawal agreement (including EU nationals who worked in the UK in the past, or vice versa) will continue to benefit from the current rules on social security coordination, including the aggregation of contributions for state pensions. The indexation of British pensions paid to residents of EU countries will continue. In the event of a “no deal”, UK nationals in the EU and EU nationals in the UK could benefit from protections provided by bilateral agreements or by the Council of Europe’s Interim Agreements on social security. But these protections are more limited, more complex and do not cover all EU countries, potentially putting at risk the acquired rights to receive a state pension for thousands of past and present mobile citizens.

Export of social security benefits to other EU countries. The withdrawal agreement preserves the exportability of benefits. In the event of a “no deal”, a similar situation to social security and pension coordination will apply.

Healthcare. The right to healthcare forms part of the protections of social security rights under the withdrawal agreement. The European Health Insurance Card (EHIC), which allows necessary care when travelling throughout the EU and the UK, will remain in use for people covered by the withdrawal agreement. But in the event of “no deal”, EHICs issued in the UK will no longer be accepted in EU countries and vice-versa.

Work rights

Recognition of professional qualifications. Under the withdrawal agreement, the recognition of qualifications that enables UK and EU professionals to practise across borders without having to re-train remains in place. This concerns all regulated professions, such as engineers, architects and nurses. However, there are some limitations regarding lawyers practicing under their home professional title (e.g. a solicitor qualified in Scotland who works in Paris without having converted to a French ‘avocat’). Another limitation applies to British citizens in Europe who will lose the right to recognition of their professional qualifications beyond their host country. The situation of frontier workers is unclear. The recognition of professional qualifications gained after Brexit will depend on the future trade relation. In the event of “no deal”, the arrangements concerning the recognition of professional qualifications would no longer apply. However, professional qualifications held by EU citizens in the UK would continue to be recognised until the UK regulations which give effect to EU rules (under the EU withdrawal act) are repealed or amended.

Establishing business. The right of EU citizens living in the UK to establish businesses is protected under the withdrawal agreement, as well as the rights of UK nationals to establish a business in their country of residence. The right of UK nationals to establish a business in another EU country after Brexit, however, will depend on the future trade relation. In the event of “no deal”, UK nationals living in the EU would be subject to the national rules of the country where their business is set up, knowing that a business set up in an EU country is considered an EU entity. EU citizens living in the UK would be free to establish themselves in other EU countries.

Cross-border services. The right to provide cross-border services (that is offering services to people or companies based in another country) will depend on the future trade relation. This affects both EU citizens with an established business in the UK and UK nationals with a business in their country of residence. In the event of “no deal”, the right to provide cross-border services would cease to exist.

Judicial rights

Referral to the European Court of Justice. Under the withdrawal agreement, EU citizens in the UK will retain the possibility to refer cases on the interpretation of their rights to the European Court of Justice for a period of eight years following the end of the transitional period. The European Commission will monitor the application of the withdrawal agreement in the EU, while an independent authority will be established to fulfil this role in the UK. This body will have the power to receive complaints from EU citizens living in the UK and their families, conduct inquiries on its own initiative and bring legal actions before the UK courts to seek remedy. But a joint committee supervising the implementation of the agreement will decide, eight years after the end of the transition period, whether to abolish this authority. These judicial safeguards would no longer benefit EU citizens in the UK in case of a “no deal”, but UK citizens in the EU would continue to be able to refer to the European Court of Justice.

Political rights

Participating in municipal elections. The right to vote and stand as candidates in municipal elections has not been preserved by the withdrawal agreement because it is linked to EU citizenship, which will be lost by British nationals once the UK leaves the EU. A “no deal” would not change this situation. The British government said it intends to negotiate the right to vote in municipal elections bilaterally with EU member states. Some countries, like Sweden, guarantee the right to vote in municipal elections to long-term residents regardless of their nationality. British citizens who have resided out of the UK for more than 15 years also lose their right to vote in the UK, which means they could be left with no voting rights at all depending on the country where they live. EU citizens in the UK may be able to vote in municipal elections in their country of origin, depending on the national electoral framework. EU directives do not cover the right to vote in general elections.

Participating in European elections. Deal or no deal, British nationals will lose the right to elect members of the European parliament and stand as candidates in European elections. EU citizens in the UK will maintain this right depending on the rules in their home country, but they will no longer have the choice of voting in the local British constituency, thus reducing the proximity to their representatives.

Start and participate in European Citizens’ Initiatives (ECIs). British nationals will lose the right to submit and take part in this form of petition to call on the European Commission to make legislative proposals. EU nationals residing in the UK will only be able to take part in ECIs in their home country if this is permitted under the national rules giving effect to ECIs.

Petition EU institutions. Any EU citizen and any person residing in an EU country can petition the European parliament, submit complaints to the European Commission, request access to EU documents or, in cases of maladministration by EU institutions, complain to the European Ombudsman. British residents in the EU will be able to continue to do so, as well as EU citizens residing in the UK. Nothing will change in this respect in the event of “no deal”.

Consular protection in third countries. British citizens will lose the right to seek consular protection from other EU states in third countries. EU citizens will continue to benefit from consular protection from other EU states in third countries where their home Member State has no consular presence. A “no deal” would not affect these rights.

Other issues

Other personal rights. There are various other personal rights which protect consumers and workers as part of the EU’s single market rules. These include employment rights, such as working time, parental leave or health and safety conditions at work; consumers rights, such as guarantees and returns for goods, compensation for travel delays or the ban on international payments surcharges; the mutual recognition of driving licenses; and protections related to financial services, for example on the portability of private pensions or minimum terms of insurance cover. All these rights will depend on the future trade arrangements between the UK and the EU.

Application to the EEA. The EU’s free movement rights apply also to citizens of Norway, Iceland and Liechtenstein, as they are members of the European Economic Area and form part of the single market. The EU withdrawal agreement does not cover these countries but the UK is negotiating citizens’ rights separately with them.

The rights of Irish nationals. Irish citizens will be subject to a separate, and more favourable, regime that was already in place before the UK and Ireland joined the EU.

Future rights of UK nationals in the UK. The situation of UK nationals who move to an EU country after Brexit and the future rules governing the rights of EU citizens who move to the UK are yet to be agreed and are therefore not covered here.

Claudia Delpero in collaboration with Anthony Valcke, Founder and Supervising Solicitor of the EU Rights Clinic. 

This article first appeared on Europe Street News © all rights reserved by Europe Street News.