viernes, 30 de junio de 2017

THE UK PROPOSALS FOR CITIZENS' RIGHTS: THE DEVIL IS IN THE DETAIL

See below some more in-depth analysis of what the recent UK offer on citizens' rights means for us. 
We will also be publishing the detailed reactions of the British in Europe legal team soon. This week coalition representatives met with Michel Barnier's deputy, Guy Verhofstadt of the European Parliament and Didier Seeuws of the European Council (EU27 governments) and received a positive reaction. 
There seems to be a general consensus that the offer was the bare minimum and with considerable lack of clarity on key issues. 

Analysis:

Cut-off date 
The date suggested for safeguarding the of citizens is a time between the triggering of Article 50 and the effective exit of the UK from the EU accepted by both parties for the implementation of any reciprocal agreement). In fact, the EU would be in breach of its own laws if it accepted the suspension of rights and obligations under existing treaties before UK departure became effective
 

Tone
DExEU is a new Department, with civil servants seconded from other ministries. Nevertheless, the tone, the spirit and the lexicon employed throughout this document are pure Home Office rather than FCO. Little Britain rather than a resurgent global UK open for business with the world. In two important areas, deciding whether an EU citizen represents a danger to the country or whether he or she has strong ties to the country that would allow them to retain settled status despite an absence of more than two years will be at the discretion of the competent department. Traditionally, such decisions have been the province of the Home Office where, as the Irene Clennell case shows, the quality of mercy is strained to the utmost and Shylock is considered a bit of a softy. 


Generosity
If we accept that the initial proposals on citizens’ rights represent the ideal endpoint of negotiations for the parties concerned, then the difference between the EU’s proposal, which is to basically maintain all existing rights of EU citizens of any nationality for their lifetime and the UK proposal to give EU citizens the same rights as legally established citizens of non-EU countries represents the sum of rights which it proposes to take away from EU citizens and, by reciprocity, the sum of rights which it is prepared to see UK citizens in the EU have taken away from them. At the end of the day, the EU wishes citizens who have already exercised their rights as EU citizens to continue to enjoy them for life while the UK government wants to fit them into the existing UK immigration structure.
One relatively positive point is the elimination of the “comprehensive sickness insurance” condition from the residence requirementsbut only up to the specified date of implementation.
At the end of the day, the whole document seeks to adapt EU citizens to an existing immigration status with minor adjustments to take into account EU law up until Brexit Day, which the UK government is obliged to do anyway. In this sense they are showing the same generosity that most citizens do when they pay their taxes, keep within the speed limit and refrain from murdering annoying neighbours.
 

Guarantee of rights
The EU wishes to have any agreed rights of EU citizens of any nationality guaranteed by the European Court of Justice (ECJ). The UK government wants their rights to be enshrined in UK law and adjudicated by UK courts. The only problem with this is that the UK parliament can change UK laws and, with it, the rights of EU citizens at any time post-Brexit.
Family reunification: existing EU law will allow family reunification up to the specified date. After the agreed date, EU nationals legally resident within the EU will only have the same right as UK nationals to live with their spouses if they were either legally resident in the UK before the specified date or if they meet the same income requirements as those demanded of UK nationals to support a spouse and children for those arriving after the date. In the past, this has indeed led to the separation of families.
 

Healthcare
The UK government will seek to protect the existing healthcare arrangements for EU/UK citizens resident in the UK/EU countries as well as visitors in a way similar to the EHIC arrangements already in place. Watch this space.


Recognition of professional qualifications – another shot in the foot?:
The statement recognises that the UK will continue to recognise qualifications that allow the holder to practise a regulated profession provided that these qualifications were acquired before the specified date. In other words, if the NHS has a shortage has a shortage of qualified nurses, doctors, chemists and dentists, it would be able to employ EU nationals, possibly subject to visas and work permits, only if they qualified before the specified date. As time goes on, the NHS would be prevented from replacing an aging generation of health professionals with young, newly qualified medics and the same would apply to all the other regulated professions such as accountants, architects, pilots, electricians, beauticians or ferry captains. As time goes on, the UK would have access to a shrinking pool of ageing professionals while professionals qualifying after, say 2019, would be barred from practicing in the UK however bad the skills shortage was.
And on the basis of reciprocity, UK professionals qualifying after the specified date presumably would not have their qualifications automatically recognised either.
UK Pension rights: The statement twice mentions the uprating of UK pensions (7 and 44) but conditions them to: a) an agreement on many other unrelated issues (7) and reciprocity (7 and 44). Unfortunately, it does not state whether the reciprocity concerned  is bilateral with the EU as a whole or will be bilateral with each individual country concerned. In any case, given that this is the unilateral competence of the UK government once EU law does not apply, it is disconcerting to see it included in a negotiating document and will do little to allay the suspicions of many UK residents in the UK that they are indeed bargaining chips. This could be bad for the UK too if a falling pound, affecting pension values and the cost of euro-based mortgages, combined with the freezing of pensions led to a wave of returning Brits, pensioners and others, that the UK and its public services, especially the NHS, is ill-equipped to deal with.
 

General pension rights (EU and UK citizens alike)
The document 'seeks' to maintain the current pension aggregation rights across the EU up to the specified date only. So a thirty-year-old who has worked in the UK and one or more EU countries may have accumulated some ten years entitlement towards an eventual pension. This will hit UK citizens harder than EU ones, given that the current system will continue for EU citizens working anywhere within EU27 while UK citizens would have to establish entitlements within individual EU countries or the UK without being able to aggregate periods worked after the specified date.


Higher Education: 

The insistence that EU nationals who qualify residentially before the specified date will be charged Home Student rates and qualify for at least fee loans begs the question of what the situation would be for those applying to UK universities after the specified date, and in particular to British citizens resident in an EU country. The logical conclusion would be that after the specified date EU-domiciled students will no longer qualify for Home Student status nor have the right to loans to cover fees but the document does not clarify this. If this is the case, this would be a huge blow for UKHEIs who have responded to government encouragement to expand by successfully recruiting in EU countries. It will also be a blow to school-leavers in the EU, many of whom will not be able to pay Overseas Student fees, including many British schoolchildren resident in the EU.
 

Confirmation of current  residence rights: 
EU citizens who already enjoy residence rights, will still be obliged to apply to have them confirmed – or re-apply if they have already had their rights accepted via the 83-page questionnaire to ensure they have settled status within the immigration laws of the UK.
 

Identity cards:  
David Davis once resigned as Shadow Home Secretary in protest against a Labour government’s plan to introduce ID cards. He now wants to introduce them but, with the same generosity as everything else in this document, for EU citizens only.
 

Duration of residence rights and landlocking:
The UK offers permanent residency (settled status) as long as they remain in the UK without any continuous absence of two years. In other words, a Spanish banker offered a promotion to work in, say, Washington or perhaps Frankfurt to supervise the bank’s newly transferred euro discount operations, would have to cost in the risk of not being able to return to London after two years. The same considerations would apply to anyone returning to their homeland to look after ageing parents. If their absence abroad exceeded two years, they would face the risk of deportation, even if this meant enforced separation from their spouse or children.
Such an arrangement would effectively mean that EU nationals in the UK would be tied to the UK for life or risk exclusion or deportation and, conversely, that UK nationals in the EU would be similarily tied to the EU country in which they happened to be resident at the specified date. Consequently, a retired UK couple who have enjoyed Italy but want to move on and sample the delights of France would have to do so in the knowledge that they would first have to satisfy the French immigration requirements and that a return to Italy could not be guaranteed. In the same way, a young professional musician would need a work permit to play in the UK if he or she possessed a EU nationality and as many permits as countries involved if he or she wished to play across the EU if he or she were a UK national.
 

Self-employed and cross-border workers
If you are self-employed or a cross-border worker, you might find comfort in these words :
5 7. With regard to other economic rights, the UK will seek to protect the right of
establishment (the right to be self-employed and to set up and manage an undertaking) for
EU citizens resident in the UK before the specified date and vice versa. We will also seek
to ensure that UK nationals in the EU can continue to provide cross-border services within
the EU27.

Then again, you might not.

Political rights

The rights or otherwise of EU/UK citizens to occupy elected office open only to local and EU nationals. For example, would an elected counsellor on a city council but not a national of the country concerned be allowed to keep his or her seat after the specified date? The paper is silent on this.

Public service employment: 

In many European countries employment as nurses, teachers, doctors, etc entails civil service status and, therefore, is open, through competitive examination,  only to the nationals of that country or other EU nationals.  Will EU/UK citizens be allowed to continue in these job which they obtained by virtue of holding EU nationality? Again, this situation is not contemplated in the paper.

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