The progress of the UK’s negotiations on EU withdrawal: the rights of UK and EU citizens Contents

1UK citizens in the EU

The Withdrawal Agreement negotiations so far

1.On 18 March, the European Commission published its third draft legal text for the Withdrawal Agreement (WA) and announced that it had reached “complete agreement” with the UK on citizens’ rights. On 19 March 2018, David Davis and Michel Barnier said that the chapter of the draft WA on citizens’ rights had been finalised.1

2.Following the March Council, the British in Europe organisation2 listed what had been agreed:

3.The British in Europe also listed several matters that had not been resolved:

4.We took evidence from British in Europe representatives resident in Germany, Luxemburg, France and Spain, who agreed that the chapter on citizens’ rights was not, in their view, finalised. Michael Harris, of EuroCitizens Spain, told us:

In the beginning, both May and Barnier said all our rights would be guaranteed. […] If you look at the Foreign Office website, it says, “The deal has been done. Citizens’ rights are guaranteed. You have nothing to worry about”, and the European Union is saying the same, so we feel that we are hostages of both sides and we are not getting much support. We are not getting much support among MPs. We are getting more support in the European Parliament, which put one of the red lines for approving the withdrawal agreement as freedom of movement for Britons in Europe. They are the ones who are doing it.5

5.On the 7 March 2018, the European Parliament said it would insist that, for those covered by the WA, there should be “future free movement rights across the whole EU for UK citizens currently resident in an EU-27 Member State” alongside the lifelong right for EU citizens to return to the UK, continued voting rights in local elections, and protection against expulsion of disabled citizens and their carers.6

Continuing free movement and associated rights

6.On the basis of the current draft of the WA, from 31 December 2020, UK citizens resident in an EU Member State will not enjoy onward freedom of movement throughout the EU-27.7 Evidence from British in Europe said that in September 2017 the UK offered to grant an unlimited right to return to EU citizens in the UK in exchange for continuing freedom of movement for UK citizens in the EU. This offer was “neither accepted or finally rejected at the time.”8 British in Europe have said that the matter has not been raised again in the negotiations at a senior level, and have been told that “the EU-27 do not have a red line over this issue,” and are open to discussing it.9

7.Michael Harris, Chair EuroCitizens and resident of Spain, said his members were “very angry with both sides” but at the moment they feel the UK Government is not defending them because the UK Government has not brought the issue to the table since December.10 Asked why UK citizens resident in the EU now should be considered differently to UK citizens in the UK who might wish to assert their free movement rights in the future, Jane Golding, Co-Chair, British in Germany, and Chair, British in Europe, explained that there is a finite group of people, those UK citizens who have moved to another Member State, and therefore have “exercised their rights of free movement”:

Under EU law and EU case law, that therefore means we have activated rights, which would then be removed from us. That is the point. There is a difference under EU case law between somebody who has stayed in the UK and never exercised their rights, and somebody who has moved to another EU country.11

She said that the ability to continue moving between Member States was relevant as “nearly 80% of the British in Europe are working people.”12 Fiona Godfrey, Chair, British Immigrants Living in Luxembourg, and Deputy Chair, British in Europe, spelled out that living in a small country meant it was really important that she could easily get to Belgium, France or Germany, for common activities such as shopping or to visit family, but also to access healthcare and work, describing free movement as “not a nice-to-have but an absolutely-essential-to-have.”13

8.Jane Golding said that following recent meetings in Brussels—with the Commission, the Council and the European Parliament—and officials and politicians in the EU-27, the view of British in Europe was that “all that needs to happen is for the question of continuing free movement to be put back on the table,” and that the EU-27 were surprised that it hadn’t been.14 Fiona Godfrey said the British in Europe understanding is that the UK Government needs to make the request “not at a technical level but at a political level.”15

9.When asked about the European Parliament’s stance on continuing free movement and the barriers to an agreement, Guy Verhofstadt MEP, Brexit Coordinator and Chair, Brexit Steering Group, European Parliament, said

The resistance comes from countries that think that sovereignty is more important than European policies […] Some member states are saying, “That is my business. I give permits”. Others said, “A permit given there in Germany is not valid in Spain”. We say, “Sorry, we live in the European Union, so let us make an agreement on this that what is valid in one country is valid in the whole European Union”.16

Mr Verhofstadt also explained that pressure from the European Parliament and the UK Government succeeded in removing Article 32 from the draft Withdrawal Agreement, an article he described as “a very negative article”.17

10.In our report on the progress of negotiations for the period December 2017 to March 2018,18 we called on the UK to repeat its offer to allow unlimited return for EU citizens in the UK in return for UK citizens in the EU retaining free movement, alongside associated rights such as recognition of professional qualifications and the right of establishment. On 24 January 2018, the then Secretary of State, the Rt Hon David Davis MP, told this Committee:

That has been a sticking point, but the impression one was given was that the sticking point is that this is a future matter and they want to hold back on it. […] This will interact quite closely with whatever deal we do on services, professional services in particular. The right to move around will be quite an important part of that. We have to read their mind a bit here, but it may well be that they are holding that back as a bargaining chip for that part of the negotiation, which is not necessarily a bad sign.19

11.When we returned to the subject on 25 April 2018, David Davis said that “We have to return to the citizens’ rights issue under the ongoing relationship arrangement” and that:

we will be raising other issues via the Union, and onward movement is one. When we deal with that, we are going to have to address the practicalities of how it is done, because it will then have more complex practicalities than we are facing with the 3 million here. We have not got to that point yet.20

12.The European Parliament has said in several resolutions that it considers continuing free movement for UK citizens in the EU a “red line” for them and it must be in the WA.21

13.Caroline Nokes MP, Immigration Minister, told us that the UK had negotiated with the EU about UK citizens living in the EU 27 and their rights of free movement and “the EU refused to agree that.”22 In its White Paper on the Future Relationship, published on 12 July, the Government confirmed that it would continue to “seek to secure onward movement opportunities for UK nationals in the EU who are covered by the citizens’ rights agreement.”23

UK in EU–recognition of qualifications

14.The ability of UK nationals currently resident in the EU to be able to continue working and using their professional qualifications will vary.24 The then Secretary of State told the Committee in October 2017 that there was disagreement between the UK and the EU on professional qualifications. This was because the UK saw it as a matter of an individual’s rights, whereas the Commission saw it as part of the future relationship.25 Recognition of qualifications outside the country of recognition/residence across the EU-27 is likely not to be discussed further as part of the Withdrawal Agreement. Recognition of professional qualifications is linked to ongoing free movement if the professional is mobile and wishes to be able to work in more than one country. As Jane Golding told us: “If your qualification is not recognised, you cannot work.”26 Guy Verhofstadt told us that recognition of professional qualifications should be included in a detailed political declaration and that it “ cannot be something that is hanging in the air for three years.”27

15.In our May Report on the Progress of the negotiations, we said that both sets of negotiators had failed to make it clear whether ongoing free movement rights for UK citizens in the EU would form part of negotiations and the future relationship between the EU and the UK. There are associated rights that will fall alongside the loss of free movement. These include the ability of some professionals to operate in more than one Member State, their ability to offer cross border services and the right to open a business in another Member State. We do not think these matters should be left wholly to the negotiations on the future relationship as this would mean a period of continuing uncertainty. We call on the UK Government to raise the matter again in the negotiations before the Withdrawal Agreement is finalised, and ask for an agreement on ongoing free movement within the EU27 for UK citizens currently resident in the EU. At the very least, it should be explicitly included in the political declaration.

Registration of UK citizens in the EU

16.In our May Report on the progress of the negotiations, we recognised that the Home Office was faced with “significant challenges” in delivering an orderly transition for EU citizens in the UK, but that it has taken steps to establish a procedure for those affected and to enable EU citizens to acquire Settled Status/Leave to Remain. We commented further that there was “little sign” that the same level of organisational planning has started among the EU-27.28

Current systems to demonstrate right to residence

17.Currently, UK nationals have a number of ways to prove legal residence in the EU-27: registration, a residence permit, permanent residence, and citizenship.29 These differ in terms of the level and types of documentation required, as well as the rights granted to the holders. UK nationals may be asked to go through additional processes and provide evidence to establish who has a legal right to residence, whatever their post-exit status will be. In the Netherlands all residents are legally required to register and there are clear incentives to do so (e.g. to be able to open a bank account or visit a doctor). France does not have a municipal registration system but EU nationals can ask for an optional residence permit.30 Kalba Meadows, Founder, Remain in France Together, said the French administration is decentralised and has 95 offices dealing with registration, each of which interpret general advice from central government their own way and operate “a slightly different system. Each [office] requires slightly different documents.”31

18.British in Europe surveyed their members in 26 Member States32 and found general satisfaction with the registration process that existed in their host state. There was a high rate of successful first registrations on entering the country, ranging from 87.4% in France (voluntary registration) to 100% in Bulgaria, Croatia, Denmark, Estonia, Hungary, Latvia, Lithuania, the Netherlands, Poland, Portugal, Romania, Slovakia and Slovenia.33

19.The process for UK nationals to assure their status in EU-27 Member States is not enshrined in the Withdrawal Agreement, but will be left to individual countries’ discretion. The draft Withdrawal Agreement allows each EU-27 Member State to choose between a declaratory or a constitutive system for ‘certifying’ rights of UK citizens in their territory after exit.34 In March 2018, British in Europe expressed concern that the Withdrawal Agreement gave the impression that the constitutive system is the default, but it is not clear whether any EU country will choose to impose this system.35 If they did, this could create problems for British migrants, such as what documents would be required to prove the date they entered the country.36

20.However, any Member State that did create a new system would raise particular concerns for some communities. We heard of concerns about the British in Spain, including “the Swallows” who spend part of the year in the UK and part in Spain, and who may not be aware of the need to register.37 And in France, where registration system is inconsistently applied—for example, some offices require appointments and some do not—and there is a lack of information on the procedure. Kalba Meadows said that support for the British in France was “largely being done by voluntary groups”, which she felt was inappropriate as they “do not have the resources and it should not be [their] job to do it.”38

21.Most EU-27 countries have fewer than 100,000 British people on their territory so it is unlikely they would want to invest in entirely new systems, particularly if they already have a satisfactory registration system in place.39 Jane Golding, from British In Europe, said “We have been pushing for a simple extension of the existing registration systems.”40 On 25 May 2018, a meeting of officials from ten EU countries took place in Brussels to consider how to approach the status of UK nationals in the EU before the end of the transition period. Media reports from the meeting suggested that member states favoured a “smooth and simple” approach, and that imposing a “mandatory system on British nationals in their country would prove an unnecessary complication and expense.” A follow-up meeting on the issue is expected in September.41

22.In a letter to Guy Verhofstadt, the Home Secretary said:

The UK Government is equally committed to the interests of UK nationals living and working in the EU, and we would welcome further details on how the administrative procedures will be enacted in other Member States. It is currently unclear what systems other EU Member States are creating to ensure the rights of UK nationals in their countries are protected after the end of the implementation period and we would welcome it if the European Parliament were also willing to focus attention on Member States’ plans.42

In response, Mr Verhofstadt wrote:

Your concerns on this [preparations in other Member States] are shared by the Brexit Steering Group. While preparations have started, a lot of work still needs to be done and we will scrutinise developments. In this context I have asked Member States to inform the Brexit Steering Group in detail as to where those preparations have got to. You can be rest assured that the European Parliament attaches equal importance to guaranteeing the rights of UK citizens in the other Member States.43

The Immigration Minister confirmed to us that she would like to see EU Member States speed up their preparations to provide certainty to the UK in the EU.44

23.We welcome the efforts made by the Home Secretary and the Immigration Minister to seek more information about registration of UK citizens from their counterparts among the EU. We note that the European Parliament Brexit Steering Group has joined the call for Member States to set out preparations for how they will approach the registration of UK citizens on their territory. We repeat our previous recommendation to the UK Government to seek urgent clarification from the EU-27 as to their preparations to regularise the status of UK citizens on their territory. Any requirements need to be made public by EU Member States and disseminated widely as soon as possible. UK citizens living in other EU countries cannot be left in the dark as to how they can secure their rights.

Voting rights

24.During phase 1 of the negotiations, the UK and EU produced a joint technical note comparing the two sides’ positions on citizens’ rights. The September 2017 joint note described the positions with regards to voting and standing in local elections as follows:

The December joint note did not include any reference to maintaining existing rights to vote and/or stand in local elections. We note, although this was not mentioned in the joint note, that EU citizens are also currently eligible to vote and stand in elections to the devolved Scottish Parliament and Welsh and Northern Irish Assemblies.46 In front of the committee on 24 January 2018, the then Secretary of State, David Davis MP, described the issue as a “sticking point” in the negotiations, with the Commission position being that it was a matter for the UK and individual Member States.47

25.British in Europe said they were aware of nine EU Member States which allow third country nationals to vote in local elections.48 Michael Harris, a UK citizen who lives in Spain—which has the largest population of UK citizens in Europe—said that he will not be able to vote next May in the Spanish local elections. He thought it could “be sorted out pretty quickly” bilaterally between Spain and the UK and “it just needs to be done.”49 He said that communities with large numbers of Britons—he gave the example of the town of Arboleas, in Almería, where 75% of the population is British—would be affected if that large a number of taxpayers were disenfranchised.50

26.Caroline Nokes MP, the Immigration Minister, told us that voting rights was not something the EU would agree reciprocity on. She said that the Cabinet Office were responsible for making a decision as to whether the UK would make an offer to EU citizens here as to whether they can vote in the UK in the future.51

27.The Immigration Minister told us that the EU has declined to consider a reciprocal agreement for the continuation of voting rights as part of the Withdrawal Agreement negotiations. This is highly regrettable. Unless the negotiations change this position, the UK will have to secure bilateral agreements with each Member State. We look forward to hearing how the UK intends to take this forward and call on Member States to respond positively. We trust that the UK Government and devolved administrations will continue to enable EU citizens living in the UK to stand and vote in local elections and in elections to the Scottish Parliament, Welsh and Northern Ireland Assemblies.

Dual nationality

28.Some countries do not allow dual citizenship and some that do only allow dual citizenship with caveats, or impose administrative, financial, and language proficiency barriers.52 Michael Harris explained that Spanish citizens can have dual nationality, but UK citizens in Spain cannot apply dual citizenship. He pointed out that civil servants in Spain have to be EU citizens, so UK citizens in those roles—if they cannot get dual nationality—will have to renounce their British nationality.53 Evidence from the British in Europe said:

Taking citizenship in the country of residence is not a panacea to solve all issues, although many are contemplating or taking this route because they rely on EU citizenship rights, in particular free movement, for their livelihoods.54

Applications from UK nationals for citizenship in other member States have increased since the EU referendum. In 2017 a total of 13,141 UK citizens obtained the nationality of one of the 18 Member States for which the BBC has acquired figures, compared with 5,056 in 2016 and only 1,826 in 2015.55 In April 2018, the Home Office raised the fee it charges for a British person to renounce their citizenship from £321 to £372.56

29.The rules on dual citizenship differ between Member States, and it is not practicable in all circumstances for British citizens in the EU to apply for dual citizenship in their host state—for example Austria, Estonia, Lithuania, Netherlands and Slovakia do not allow dual nationality. In the absence of an agreement enabling them to continue to benefit from free movement, some may have to choose to renounce their British citizenship and apply to become a citizen of their host country to enable them to continue to live their lives as now. This would be unacceptable and we urge Member States, and the European Parliament, to look at this issue so that UK citizens can maintain their rights without having to renounce their citizenship in the event of there being no Withdrawal Agreement.

1 Department for Exiting the European Union, David Davis’ statement: EU-UK Article 50 negotiations Brussels, 19 March 2018 and Commission, Press statement by Michel Barnier following the latest round of Article 50 negotiations, 19 March 2019; European Commission, draft Withdrawal Agreement, 19 March 2018. Part two of the draft (articles 8–35) deal with citizens’ rights.

5 Q1967

10 Q1967

11 Q1971

12 Q1970

13 Q1972

14 Q1974

15 Q1976

16 Q2097–2100

17 Qq 2097–2099. Article 32 of the Withdrawal Agreement had stated, “In respect of United Kingdom nationals and their family members, the rights provided for by this Part shall not include further free movement to the territory of another Member State, the right of establishment in the territory of another Member State, or the right to provide services on the territory of another Member State or to persons established in other Member States.”

18 The progress of the UK’s negotiations on EU withdrawal: December 2017 to March 2018, HC 884

19 Q763

20 Q1413–1414

22 Q2287

23 White Paper, The future relationship between the United Kingdom and the European Union, para 90

25 Oral evidence 25 October 2017, Q139

26 Qq 1980–1983

27 Q2102

28 The Committee recommended that the Government seek further clarification from the EU-27 on their work on operational requirements for any registration systems and on what timeframes UK citizens will be required to meet. See The progress of the UK’s negotiations on EU withdrawal (March to May 2018), HC 1060, 24 May 2018

31 Q1956

32 Ireland was excluded because of the different arrangements in place for UK nationals

34 The declaratory system confirms the rights that already exist. If an EU country adopts this system, a UK national in that state will be able to apply for a residence document to demonstrate their status. In a constitutive system, similar to the proposed UK ‘Settled Status’ for EU citizens in the UK, a UK national will have to apply for a new status.

35 British in Europe, Where does the March Agreement leave me?

36 MPI report, Next Steps, pp.22–25. See also British in Europe NEG0021 paras 23–35

37 Q1955

38 Q1991

39 Qq2288–2289

40 Q1965

42 Letter from the Home Secretary to the European Parliament Brexit Coordinator, 16 May 2018

43 Letter from European Parliament Brexit Coordinator to the Home Secretary, 3 July 2018

44 Q2289

46 For example, The Electoral Commission, Scottish Parliamentary Election, Guidance for candidates and agents, 2016; The Electoral Commission, National Assembly for Wales, Guidance for candidates and agents, 2016

50 Q1990

52 MPI report, Next Steps, pp.20–21

53 Q1990

Published: 23 July 2018