Europaudvalget 2018-19 (1. samling)
EUU Alm.del Bilag 219
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No Deal Brexit preparedness – why the Commission’s proposal does not work
The European Commission, which has refused for over a year to discuss what happens to
citizens’ rights if there is no EU/UK Withdrawal Agreement, has finally come up with a
suggested solution. As a great poet of the original European Union
1
said 2000 years ago,
“The mountains give birth and a ridiculous little mouse is born.”
The ridiculous little mouse with which the Commission would like to replace all the EU rights
of UK citizens living in the EU27 in the No-Deal scenario is “third country national” (TCN)
status. In its Contingency Action Plan Communication (the “Communication”) issued on 13
November
2
, the Commission proposed that, in order to prepare for a No-Deal Brexit, the
EU27 countries should start accepting early applications by UK citizens for TCN status.
As British in Europe has argued since as early as August 2017, if all we are left with is TCN
status, most of us will be illegal immigrants (and thus wholly without rights) on 30 March
next year. Thus, with this Communication, the Commission falls very far short of the
standard it set itself, namely that “it
has always been the European Union’s intention that
citizens should not pay the price of Brexit”.
We therefore presume that this Communication
is simply the first step in an ongoing process of preparedness in case of a No Deal and that,
in the event that No Deal were to become a reality, the Commission is planning more
detailed measures to ensure that our status is secured.
Much more robust action is required to see that we do not pay the price of Brexit. The
simplest and safest solution is to ring-fence the citizens’ rights agreement already reached.
In the absence of that, only legislative action in the EU27 Member States will work.
Why will we be stripped of our rights on 30 March?
There are four reasons why TCN status does not fill the gaping hole left by the removal of
our rights as EU citizens:
I. The first is that – unlike EU citizenship – no form of TCN status is automatic. It is
necessary to submit an application in each and every case, and the approval process
takes time.
II. The second is that, in order to have TCN rights at all, a person has to be “legally
resident” in the State in question. This is, therefore, a chicken-and-egg situation,
because our problem is that unless there is some additional intervention we will not
be “legally resident” on 30 March.
III. The third is that a very large number of UK citizens
3
currently residing legally in the
EU27 countries will – as things stand – not satisfy the conditions required for any of
the various EU schemes for TCNs.
IV.
The fourth is that the rights conferred on those who succeed in an application under
one of these schemes still fall well short of the rights which they currently have as EU
citizens.
These four reasons are dealt with in greater detail below.
1
The Roman, Horace
2
https://ec.europa.eu/info/sites/info/files/brexit_files/info_site/communication-preparing-
withdrawal-brexit-preparedness-13-11-2018.pdf
3
Estimated informally as about a third in a country such as France.
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I.
TCNs have to apply for rights
a) We are often told, “Don’t worry. After Brexit you will have the all the rights of TCNs”.
Such statements are absolutely meaningless. “TCN” in EU law is simply the term
used to describe any person who is not an EU citizen. In terms of legal status it
merely describes the rights we DO NOT have. It does not describe a set of rights we
all DO have.
b) The rights which some TCNs can apply for are set out in a patchwork of EU laws
governing a series of different situations. We consider these further below.
c) Almost the only thing which this patchwork of laws have in common is that the rights
they confer are only obtainable on application. Applications, by their very nature,
take time to process. In the period after 29 March, while our applications are being
decided, we will be illegal immigrants.
d) The Commission seeks to overcome this problem by encouraging States to accept
applications now, before we become TCNs. However, British in Europe’s experience
to date of trying to talk to any government about what will happen if there is No Deal
is to be told, “but we are all hoping there will be a deal and talk of no deal is simply a
distraction.” The great likelihood is that many States will continue in this mindset at
least until all hope of the Withdrawal Agreement being ratified has finally gone, not
least because they will not want to commit resources to processing applications
which may prove futile
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. Some States may take the legalistic view that they cannot,
as a matter of law, entertain our TCN applications before 30 March.
e) In any event, the Commission’s exhortation comes far too late, even if it were to be
accepted by the Member States. The time for processing an application depends on
which right is being applied for. The most comprehensive TCN scheme is the Long
Term Residence Directive, Dir. 2003/109, Art. 7.2 of which gives States up to 6
months to decide such an application. The Commission’s suggestion came less than
5 months before Brexit, and already less than 4 months remain. British in Europe is
not aware of any Member State yet having complied with this suggestion and this is
very unlikely as long as ratification of the deal remains possible.
f) Even in countries where national law requires an application to be decided in less
than 6 months, there is often no sanction for breach of the time limit, and our state
of limbo is likely to continue. Even in the most organised countries, the spike in the
applications which the Commission is encouraging will be hard to process. The
delays already experienced by UK citizens in analogous bureaucratic processes, such
as getting permanent residence,
cartes de séjour
or citizenship, most apparent in the
spike between referendum and Brexit, show clearly that only a small proportion of
these applications is likely to be processed before 30 March.
4
Indeed at a public meeting in Rome on November 26
th
a representative of the Italian government said nobody
should try to register at the local authority now: instructions would be issued after the UK vote in the event
that the WA is rejected.
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II.
TCNs must be legally resident
a) The only other thing these laws have in common is that only TCNs who are “legally
resident” can apply to be recognised as such and be accorded any associated rights.
b) If the TCN laws are to be the solution to the problem created by Brexit,
something
would have to be done in advance to render our residence legal immediately
following Brexit, while ensuring the continuation of all other related and essential
rights, such as to work, education, health, social security, pension contributions etc
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.
c) In theory there are three ways of achieving this.
i) The first is for all Member States to succeed, before March 30
th
, in processing
applications by all British nationals for the TCN rights envisaged by the
Commission. For the reasons given this is unlikely.
ii) The second is for all those British nationals who have made a TCN application
which will clearly not have been determined in time to make a further interim
application for some sort of legal status such as a visa or temporary residence
permit. Such duplication of the application process required would create a
bureaucratic nightmare which nobody could seriously wish for.
iii) The above two solutions, though impractical, would not require legislation in
Member States. An alternative would require legislation in Member States but
would be more practical. This would be for States to legislate for a No Deal
Transition Period during which all those of our existing EU rights which are
capable of being extended by national legislation are, for a period long enough to
ensure that all applications which might be made have been processed.
d) In any event, these solutions are only a temporary sticking plaster for many British
nationals, since they still have to be eligible for the rights which the Commission
suggests as the answer to our problems.
III.
Many UK citizens will not be eligible to apply
a) Each TCN scheme has its own set of eligibility criteria. Many UK citizens currently
living legally in the EU27 (“UKinEU”) will – as things stand – meet none of them.
b)
The Long Term Residence Directive, 2003/109.
This is the most comprehensive of the
TCN Directives, in the sense that it is not confined to any particular group of workers,
students etc. The following UKinEU will be ineligible:
i) Anyone who on 29 March has not been resident for at least the preceding 5 years
in the Member State in which they are living.
This includes not only those who left the UK during the previous 5 years but also
those who left many years ago but have moved from one State to another, as
their Treaty rights encouraged them to do, and so will have spent less than 5
years in their present home State at Brexit. A very substantial number of UKinEU
will be unable to meet this criterion on one or other of these grounds.
Footnote 11 of the Commission’s Communication seems to accept that this is the case without mentioning
the administrative burden it would entail.
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ii) Anyone who is unable to meet the adequate resources requirements laid down
by national law pursuant to the Directive.
These vary from country to country but three examples from different countries
show how great the problem is. The annual figure required in Spain for
pensioners is €25 816, in Luxembourg it is €24 582 for the economically inactive
and in France for anyone the figure is €17 982. These figures are prohibitive for
the very large number of UK pensioners living in the EU27 on their UK state
pension, even where they have a further modest income. The UK state pension
at present is worth £8 546 a year, currently €9 649
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, just over a third of the
amount required to be allowed to stay in Spain.
iii) Anyone who is unable to obtain sickness insurance in respect of all risks normally
covered by the nationals of the State in question.
This inability could be because insurers simply refuse to insure at all, or refuse to
cover some required risks, because of a pre-existing medical condition.
Alternatively, it could be because the applicant is unable to afford the premiums,
a particular risk where the insurer does not refuse cover altogether but instead
loads the premium. It might be objected that States will accept the UK S1 form as
equivalent to insurance for pensioners and others with exportable benefits from
the UK: but these rights will lapse on 30 March, 2019 unless previously replaced
by, at the very least, a series of 27 bilateral agreements to continue the S1
arrangement. There is no prospect whatever of this happening before Brexit.
iv) Anyone who cannot comply with the “integration conditions” which the Directive
authorises States to require.
These usually involve language tests and/or tests of knowledge of the host
country’s culture and history. Such tests are not required of EU citizens
exercising their rights of free movement, and many who have done so would not
be able to pass them. For some, particularly the elderly, there is no prospect of
their ever being able to do so. Others who are unable to do so immediately will
require time to complete courses of study and further time to attend a test.
Changing in so fundamental a way the basis on which a person can live in the
country they call home is not something which can be achieved in 4 months.
v) To require compliance with the conditions at (ii)-(iv) above will penalise any
British national who on March 29 2019 has, or is entitled to, Permanent
Residence as an EU citizen.
To be entitled to Permanent Residence under Dir. 2004/38 one has to show that
during the previous 5 years s/he has resided legally in the State in question (Art.
16(1)). ‘Legal residence’ requires that during those 5 years the person has either
had ‘adequate resources’ and health insurance or has worked (ie achieved the
same result by working).
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Exchange rate on 22.11.18.
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After 5 years of complying with these requirements, a person is entitled to
Permanent Residence and no longer has to satisfy them (Art.16(1)). So a British
national who has lived in an EU27 country for decades has, in effect, been lulled
into a false sense of security. For years they have not been obliged to maintain
health insurance as a condition of residence, nor to have a particular level of
income. Had they known that similar requirements were going to be imposed
later in their lives, they might well have maintained both. But now they are to be
required to do so when it is too late for many to be able to do anything about it.
In this way those who have lived in EU27 countries for longest are severely
penalised, compared with those who are still in their first 5 years of residence
and aware that they need to comply with such requirements.
c) Meaning of the Commission’s suggestion
i)
The Commission’s suggestion is as follows. “The Commission considers that
periods of legal residence of UK citizens in an EU27 Member State before the
withdrawal date should be considered as periods of legal residence in a Member
State of the European Union in accordance with Directive 2003/109/EC
concerning the status of third country nationals.”
ii)
We take it that this means that periods of residence as an EU citizen should
automatically satisfy the TCN residence requirement of Art. 4 of the Long Term
Residence Directive without any further qualification. In other words if someone
had resided for at least 5 years as an EU citizen no questions would be asked as to
whether during that period the person also met the more restrictive criteria of
the Long Term Residence Directive, particularly whether s/he breached the more
restrictive rules on permitted absences.
iii)
It has been suggested that the Commission’s proposal is intended to go further
than just providing a way for British nationals to satisfy the residence criterion,
and that it is suggesting that those of us with or entitled to Permanent Residence
as EU citizens can simply swap that certificate/status for a TCN long term
residence permit with no further questions being asked. We have the following
comments on this interpretation:
(1)
Whilst this interpretation of the Commission’s suggestion would be very
welcome to those British nationals entitled to Permanent Residence, it will
not be helpful unless it is legally unchallengeable. The last thing we want is
for a superficially attractive solution to be nodded through now, when there
is still time to take alternative steps to protect our rights, only for it to be set
aside after Brexit with chaotic consequences.
(2)
If this is what the Commission is in fact recommending, it should be stated, as
the wording of the Communication is not clear. The Communication says,
“This will help UK citizens who are resident in the EU27 to obtain long term
resident status in the Member State in which they reside
if they fulfil the
necessary conditions.”
(our emphasis). This could be a reference to Art. 5 of
the Long Term Residence Directive which is headed “Conditions for acquiring
long term resident status”. The conditions are those referred to above at
(b)(ii)-(iv) – the adequate resources condition, the health insurance condition
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and the integration condition. Alternatively, it could be a reference to the less
onerous conditions set out in Directive 2004/38.
(3)
In any event the Commission has no power to declare EU law: only the Court
of Justice has such power, and there is no time before Brexit to test such an
interpretation.
(4)
With these points in mind we suggest a reading of Art. 5 of the Long Term
Residence Directive which might enable this interpretation of the
Commission’s suggestion to stand up in law. The analysis is as follows:
(a)
The Long Term Residence Directive is a Directive, and as such Member
States have a degree of freedom as to how it is to be transposed into
national law.
(b)
Interpretation of the Directive also has to satisfy the general EU law
principle of proportionality.
(c)
A person who has, or is entitled to, permanent residence as an EU citizen
has, at the time that entitlement arose, satisfied the conditions of
Directive 2004/38 as to adequate resources and health insurance either
directly or by working – see Art. 7(1)(a)-(c) of that Directive. Although the
conditions of the two Directives are not identical they are similar and it
would be disproportionate and unfair to those who have lived settled lives
in a country on the basis of having satisfied the conditions of the 2004
Directive to require them to meet the conditions of the 2003 Directive
which they might not be able to meet now. This is particularly true when
they have in effect been lulled into a false sense of security by the 2004
Directive (and the legitimate expectation that their rights were
irrevocable) which provides that after 5 years legal residence an EU citizen
no longer has to meet the conditions of working, having adequate
resources or health insurance (see Art. 16(1)), whether or not they have
obtained a certificate of permanent residence (Arts. 19(1) and 25(1)).
(d)
The requirement for integration measures is in any event optional for
Member States and it would be disproportionate and unfair to people
settled in a country as EU citizens to require them to demonstrate
compliance now and in effect retrospectively: particularly if they are
elderly.
(5)
British in Europe calls upon the Commission to state
explicitly and urgently:
(i)
Whether its intention is that both the legal residence requirement
and
the conditions of Art. 5 of Dir. 2003/109 should be deemed to be
satisfied by any British national who has or is entitled to Permanent
Residence as an EU citizen at Brexit.
(ii)
If so by what clear legal means can British nationals be guaranteed
now
that this will be the case in each of the EU27 States as a
Communication setting out what the Commission considers in terms
as unclear as these is not sufficient and is unlikely even to be
considered clear enough to constitute soft law as regards this issue.
iv) Member States do have the power to grant long term residence status to TCNs
who do not satisfy the conditions of the Long Term Residence Directive – see Art.
13. However, such status only applies in the Member State in question, and
deprives the person in question of the rights under Chapter III of the Directive
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which gives TCNs some limited rights to move and reside for longer than 3
months in other Member States.
v)
Moreover all Member States have national laws implementing the Directive,
some of which will be more rigid than others. If those national laws already
preclude either a generous interpretation along the lines the Commission might
be suggesting, or more generous conditions for long term residence permits in
accordance with Art. 13 of the Long Term Residence Directive, then legislation in
the Member States would be required before March 29, 2019.
d)
Workers: the Single Permit Directive (2011/98) and the Blue Card Directive (2009/50):
These two Directives regulate aspects of applications for the rights of TCNs to work in
a Member State (unless covered by the long term residence Directive considered
above).
i) The Blue Card Directive sets out criteria for admission of workers who have a
contract or binding job offer for work as a highly-qualified worker. A visa or long-
term residence permit may still be required by national law, and Member States
can limit the number of workers admitted under the scheme. It does not apply to
the self-employed. Furthermore the operation of the Blue Card Directive has
been criticised by the Commission as fragmentary and ineffective, and it has been
proposed that it be repealed and replaced with a more effective measure.
Negotiations on the revised proposal now appear to be blocked.
ii) The Single Permit Directive lays down certain procedures, but
entitlement
to be
admitted to work in a State is a matter for national immigration law. It too does
not apply to the self-employed.
So, British nationals who are working but are not eligible to apply for long-term
residence status will have to regularise their position by an application under the
national law of the country in which they reside and/or work. In any event, the self-
employed are not covered by any of these provisions.
e)
Residence for the purpose of research, studies, training etc:
There is also a Directive (2016/801) which confers certain rights of entry and
residence on TCNs for research, studies, training and related purposes. Because this
only covers a very limited demographic, it is not considered further here. It clearly
does not fill the gaps left by the Long-Term Residence Directive.
f)
Other specific Directives
There are also specific directives dealing with TCN intra-corporate transfers and
seasonal workers, but again these are not going to solve the problems of the majority
of UKinEU.
ii.
The Family Reunification Directive (2003/86)
does confer rights of entry and residence
for families of TCNs. However, the prior condition is that there be a TCN “sponsor”
lawfully residing in the country under a residence permit for a year or more with a
reasonable prospect of obtaining a right of permanent residence. Since at least one
member of the family has to acquire residence rights as a TCN to be the sponsor, this
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Directive does not solve the initial problem of getting those rights, but only confers
dependent rights on that person’s family members.
Summary of the scope of these TCN Directives
In short, whilst some of the Directives might, in the medium term, legitimise the residence
and work rights of some UKinEU, their coverage is patchy and it is clear that a very
significant percentage of British citizens will be unable to rely upon them. The Commission’s
proposal leaves all these as illegal immigrants.
IV.
Limited rights conferred on TCNs
a)
Family reunion
The range of family members with rights recognised by the Directive on TCN family
reunification is more limited than that for EU citizens, which leaves open the
question as to what would happen to relations living with a TCN who has succeeded
in an application for residence rights but where such relations fall outside the scope
of the Directive.
b)
Inter-State mobility
The rights of TCNs to move to another Member State are dramatically more limited
than our existing EU right of free movement. As the purpose of this Communication
is to consider the position if there is No Deal compared to the position if the
Withdrawal Agreement is ratified, we do not dwell on that point, as we have no right
of free movement under the Withdrawal Agreement in any event.
c)
Equal treatment
The Long Term Residence Directive confers a right to equal treatment with nationals
of the State of residence across a range of areas, but the State can restrict this in
several important areas, viz: access to employment or self-employment in areas
where this is restricted by national or Union law to nationals
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, EU or EEA citizens;
they may require language proficiency in relation to access to study or training; social
assistance and protection may be limited to core benefits.
There are more extensive derogations for those workers who are covered by the
Single Permit Directive.
The equal treatment rights of family members pursuant to the Family Reunification
Directive are even more restricted and include a power for States to set a time limit
of up to 12 months to carry out a review of their labour markets, during which period
family members cannot work at all.
Shortcomings of the TCN acquis
We also note the 2011 EU Commission report into the transposition/implementation of the
Long Term Residence Directive which described the situation, five years after it entered into
force, as “deplorable.” Several of the Member States that are home to the largest
communities of UK citizens in the EU were found to be in contravention of key provisions of
the Directive, including definition of status, refusal of status, giving long-term residents the
7
Already evident in the French proposals for British nationals employed in the public administration, most
commonly as language teachers.
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right to choose between a permit under national immigration law or EU law, costs of
applying for a permit, higher fees for tertiary education than are charged to EEA nationals,
and quotas on work permits for long-term residents moving from one EU member state to
another
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. Under its Fitness Check, the EU is currently reviewing the workings of this
Directive, but it could be some years before any reform is made.
Denmark
In addition to the above, of course, Denmark does not apply the EU’s TCN acquis, so British
nationals in Denmark are completely unprotected by the Commission’s proposal.
What is to be done?
What the Commission is proposing is too little, too late. At the heart of the problem facing
UKinEU27 in the event of No Deal is that we will become illegal immigrants at midnight on
29 March 2019 – i.e. in 4 months’ time. No solution requiring 1.2m people
to apply
before
then for individual permission to reside/work etc. is feasible, because there is simply not
time for such applications to be processed.
Given the Commission’s self-stated aim that “citizens
should not pay the price of Brexit”,
and
given the need for urgent action, the obvious solution is for the EU to propose to the UK that
the section of the Withdrawal Agreement dealing with citizens’ rights be implemented as the
only agreement which has been possible under Art. 50. The work has been done, there is
time for this to happen and it is the only solution which avoids the need for legislation in 27
countries and the only solution which deals with the interlocking issues such as pension
contributions and healthcare that cannot be dealt with unilaterally.
If the EU is not prepared to make this offer, then the only remaining solution is that there be
legislation in all 27 countries to legalise our position by unilaterally granting such of the
rights set out in the Withdrawal Agreement as can be conferred unilaterally. Such a solution
would completely fail to address the problem of the interlocking issues and, lacking the force
of an international Treaty, would be open to change at any time by national lawmakers. It
would be very much the worst solution, but it would be better than simply asserting that we
can all apply for such TCN rights as we might be able to get.
British in Europe
December 2018
Report from the Commission to the European Parliament and Council on the Implementation of Directive 2003/109/EC
COM (2011) 585 final:
https://ec.europa.eu/home-affairs/sites/homeaffairs/files/http%3A//ec.europa.euwhat-we-
do/policies/pdf//1_en_act_part1_v62_en.pdf
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