1Introduction
Our inquiry
1.In our first report on the UK’s negotiating objectives on leaving the EU, we noted that the referendum result had created uncertainty and anxiety for a large number of people from EU countries currently resident in the UK, and for UK nationals living in other EU states.1 Under free movement provisions, nationals of each Member State of the European Union have taken the opportunity to move to the UK, for work, study or personal reasons, and many have decided to stay. Their rights came from being a national of a Member State. Since the referendum, the status of nationals of other EU states in the UK and of UK citizens in other EU states has not been clear.
2.It is widely acknowledged that EU nationals in the UK have, collectively, contributed significantly to the economic and cultural life of the UK.2 They are now, understandably, concerned about their right to remain, and their future rights to access education, health and welfare. In our first report we recommended:
It is clearly in everyone’s interests to resolve the position of EU nationals currently in the UK and of UK nationals in other EU member states as quickly as possible so as to provide certainty and reassurance to the individuals, their families and the businesses and services that rely on them. We were struck by the fact that witnesses who were on either side of the referendum debate were unanimous, when asked, in expressing their opinion that EU nationals working in the UK should have their status assured. This must be an early priority for the negotiations.3
3.We decided to take evidence and explore what steps could be taken to resolve this situation. We received evidence from many people both across the UK, and from several other EU member states, expressing their concerns and outlining what was needed to ease their anxiety. We took evidence in Westminster from EU nationals who have chosen to make the UK their home, and UK nationals living and working in France, Spain, Italy and Belgium. The Committee are extremely grateful for the time and effort they have gone to, not only to give evidence in public to this Committee about their personal situations, but also to collect views from their wider communities and support groups.
4.In addition to evidence in Westminster, we have taken evidence, and held meetings across the UK, including Sunderland, Aberdeen, Wolverhampton, Stoke-on-Trent, East London, Boston and Truro. One of the common themes on these visits has been the impact of leaving the EU on levels of immigration into the UK—both in terms of what that might mean for the UK’s society and economy, and also how the UK might design its immigration system to best meet its priorities once the right to free movement for EU nationals has ended.
The rights that come with free movement
5.The Government White paper, The United Kingdom’s exit from and new partnership with the European Union, listed the Treaty provisions relevant to free movement.4 It explained that free movement rights can be exercised by EU citizens, their dependants and, in certain circumstances, other family members.5 EU secondary legislation provides further detail on the rights contained in the Treaties notably the Free Movement Directive 2004/38/EC, which is implemented in the UK via the Immigration (European Economic Area) Regulations 2016.6 Directive 2004/38/EC as interpreted by the European Court of Justice, provides for:
- An initial right of residence for up to three months, subject to possession of a passport or identity card, without substantive qualifying conditions;
- A right to remain as a job-seeker with a “genuine chance of being engaged”;
- An extended right of residence obtained through economic activity as a worker or as a self-employed person;
- An extended right of residence for self-sufficient persons, including students. The requirements for this right are “sufficient resources [ … ] not to become a burden on the social assistance system” and “comprehensive sickness insurance”; and
- A right of permanent residence arises after five years’ extended residence. This right is lost “only through absence from the host Member State for a period exceeding two consecutive years”.7
6.Direct family members of EU citizens covered by these rights have parallel rights of residence. They have an automatic right of residence in the UK for as long as they remain the family member of that EEA national and that person is either entitled to reside in the UK for an initial period of three months, a qualified person, or has a right of permanent residence. Family members of EEA nationals who have the right of residence in the UK have the right to work or become self-employed.8 This includes the spouse or civil partner of the EU citizen, any dependants under 21 and relatives in the ascending line (parents and grandparents) of the qualifying EU citizen or their spouse.9
7.The House of Lords’ European Union Committee report on Acquired Rights sets out in greater detail the rights codified by the Directive.10 The House of Lords EU Committee report also makes the point that
all the individual rights to which the Citizens Directive gives effect are directly enforceable by EU citizens in any EU Member State. Unlike national immigration rules, they do not require the consent of the host State before they can be relied upon. It is for this reason that the rights of EU citizens to live in a Member State are not dependent on that State issuing a residence card. This does, however, lead to difficulties when EU citizens seek to prove that they have exercised their ‘treaty rights’ [ … ] for five years to gain permanent residence.11
8.There is support for guaranteeing the rights embodied in the Citizens Directive from across the political spectrum. Sunder Katwala, of British Future, referring to work British Future had carried out on the EEA nationals in the UK, said:
There was an enormously broad consensus, which almost all mainstream voices hold, on what we are trying to do. Helpfully, the Vote Leave campaign expressed it in two sentences during their campaign: “No change for EU citizens already lawfully resident in the UK.” [ … ] Their proposal was: “These EU citizens will automatically be granted indefinite leave to remain [ … ] and will be treated no less favourably than they are at present.” That is what we are trying to do.12
9.There has been debate as to whether these rights might be ‘acquired rights’, meaning that they would continue once the UK left the EU regardless of any undertakings given by the UK Government. However, the House of Lords’ EU Committee said that this would not be the case, and that these rights needed to be safeguarded in the withdrawal agreement and “given effect, and enforced, in the national legal systems of the UK and the EU Member States.”13 Protection would not happen without Government action.
The numbers of people involved
10.Estimates vary, but there are believed to be 3.2 million citizens of EU countries in the UK.14 The UK does not have a population register or identity card scheme. As Professor Catherine Barnard, Professor of European Union Law and the Jean Monnet Chair of EU Law, University of Cambridge, told us “we have no record of how many EU nationals are living in the UK.”15 In addition, EU nationals have distributed themselves broadly across the UK in a pattern different to that of other migrants to the country.16 Figures below indicate the estimated number of residents in the UK of each EU nationality.17
|
Estimated population resident in the UK, by nationality |
|
|
Poland |
916,000 |
|
Ireland |
332,000 |
|
Romania |
233,000 |
|
Portugal |
219,000 |
|
Italy |
192,000 |
|
Lithuania |
170,000 |
|
France |
165,000 |
|
Germany |
135,000 |
|
Spain |
132,000 |
|
Latvia |
97,000 |
|
Slovakia |
93,000 |
|
Hungary |
82,000 |
|
Netherlands |
81,000 |
|
Bulgaria |
66,000 |
|
Greece |
56,000 |
|
Czech Republic |
45,000 |
|
Sweden |
34,000 |
|
Denmark |
30,000 |
|
Belgium |
26,000 |
|
Austria |
14,000 |
|
Cyprus |
13,000 |
|
Finland |
10,000 |
|
Estonia |
8,000 |
|
Malta |
5,000 |
|
Croatia |
4,000 |
|
Slovenia |
2,000 |
|
Luxembourg |
not available |
11.The number of UK nationals resident in other EU countries is similarly difficult to establish with certainty, not least because countries count migrants in different ways, notably either by citizenship or by country of birth. The Government’s White Paper estimates that “around 1 million UK nationals are long-term residents of other EU countries.”18 UN estimates for the number of British migrants living in other EU countries are given below.19
|
Estimated number of British migrants living in other EU countries, 2015 |
|
|
Spain |
308,821 |
|
Ireland |
254,761 |
|
France |
185,344 |
|
Germany |
103,352 |
|
Italy |
64,986 |
|
Netherlands |
49,549 |
|
Cyprus |
40,547 |
|
Poland |
34,545 |
|
Belgium |
27,335 |
|
Sweden |
24,950 |
|
Denmark |
18,556 |
|
Portugal |
17,798 |
|
Greece |
17,679 |
|
Malta |
12,046 |
|
Austria |
11,013 |
|
Hungary |
6,980 |
|
Finland |
6,898 |
|
Luxembourg |
6,559 |
|
Bulgaria |
5,329 |
|
Slovakia |
4,890 |
|
Czech Republic |
4,795 |
|
Lithuania |
3,301 |
|
Romania |
3,124 |
|
Latvia |
1,148 |
|
Croatia |
670 |
|
Slovenia |
578 |
|
Estonia |
487 |
1 First report of Session 2016–17, The process for exiting the European Union and negotiating objectives, HC815
2 The EU countries are: Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the UK. The European Economic Area (EEA) includes EU countries and Iceland, Liechtenstein and Norway. Switzerland is neither an EU nor EEA member but Swiss nationals have the same rights to live and work in the UK as other EEA nationals.
3 First report of Session 2016–17, The process for exiting the European Union and the Government’s negotiating objectives, HC815
4 Article 18 of the TFEU on non-discrimination; Articles 20 and 21 TFEU on EU citizenship and free movement; Articles 45–48 TFEU on the free movement of workers and social security coordination; and Articles 49–53 TFEU as they relate to the freedom of establishment of self-employed persons.
5 Under the 1992 Agreement for a EEA (as amended), nationals of Iceland, Liechtenstein, Norway have the same rights of residence as EU citizens, apart from those based solely on Article 21 TFEU. Swiss nationals benefit from the 2002 EU–Swiss Free Movement of Persons Agreement
6 The Immigration (European Economic Area) Regulations 2006 No. 1003. These rights have also been extended to nationals of the European Economic Area (EEA) states who are not members of the EU (Iceland, Norway and Liechtenstein) and to Switzerland by virtue of two separate agreements. EU citizens also have the right to exercise free movement rights in these states.
8 Home Office, Free Movement Rights: Direct family members of European Economic Area (EEA) nationals, 25 November 2016
9 Two ‘derivative’ rights of residence have been recognised relating to the child of a migrant worker and primary carer, and the right of residence for the primary carer of an EU citizen child
10 House of Lords EU Select Committee, 10th report of Session 2016–17, Brexit: acquired rights, HL Paper 82, paras 14–17 and Box.1
11 House of Lords EU Select Committee, Brexit: acquired rights, HL Paper 82, para 18
12 Q764
13 House of Lords EU Select Committee, Brexit: acquired rights, HL Paper 82
14 Oral evidence taken before the House of Lords EU Committee, Home Affairs sub-committee: Wednesday 11 January 2017, Q67 [Robert Goodwill] The ONS estimated there were around 3.18 million people born in other EU countries living in the UK, and around 3.16 million people who were nationals of other EU countries living in the UK.
15 Q14
16 Q 764
17 Office of National Statistics, Population of the United Kingdom by country of birth and nationality, 2015, Table 2.3
18 HM Government, CM 9417, The United Kingdom’s exit from and new partnership with the European Union, February 2017, page 29. The ONS estimates that there were around 890,000 British nationals living in other EU countries, and around 1.14 million people born in the UK living in other EU countries in 2011.
19 UN Department of Economic and Social Affairs Population Division, International migrant stock, Trends in migrant stock, Table 16 December 2015. Office of National Statistics, What information is there on British migrants living in Europe? Section 8, Jan 2017.
3 March 2017