Rights of British and EU nationals after BREXIT

The Times, 9th March.

Of all the issues in the Brexit negotiations, that of expatriate rights is, at first glance at least, one of the more straightforward.

Both the government and the EU agree on a broad objective: a reciprocal deal to guarantee the rights of three million EU citizens in Britain and the one million British expatriates living in other EU countries. But within that broad outline lies horrific complexity that could easily derail an early agreement. These problems include:

Changing circumstances

The government has said that it wants to guarantee the rights of “existing” EU citizens living and working in the UK. But it has been far from specific about how far those rights extend or what happens if an individual’s circumstances change in the future.

For example, if a British citizen wants to bring a husband, wife or civil partner into the country from outside the EU they must prove that they have an income of at least £18,600 a year to support them. Because of an anomaly, however, an EU citizen living in Britain could bring in a non-EU spouse without the same financial test. There will be pressure from Brexiteers for that to change but it will be subject to negotiation.

There could be similar problems with benefit entitlements. If existing welfare rights remain intact EU migrants could still claim child benefit for dependants in Paris or Warsaw. If the government wants to change such rights, that would have to be a matter for negotiation and could affect British citizens living in other European countries.

A final question relates to continuity of residency. It is far from clear whether such acquired rights under a Brexit deal would extend to an EU or UK citizen who left the country for a prolonged period. Would they have the same rights to return and work or would they have to apply under a new post-Brexit immigration system?

Pensions

At present, British expatriates in Europe have different pension rights from those in many other countries. A Briton who moves to, say, Canada is able to draw their UK state pension but it is frozen and does not increase in line with inflation and earnings. British pensioners living in EU and EEA member states receive their annual state pension increases.

According to the international consortium of British pensioners there are more than 476,000 British pensioners living in the EU and EEA with unfrozen pensions and 544,000 living in countries where their pensions are frozen.

The government could face a twin dilemma. If it negotiates a deal under which expats in the EU will continue to receive unfrozen pensions Britons in the frozen countries will complain of double standards. Yet if British pensioners in Europe find their pots suddenly frozen, some could return to the UK, placing a greater burden on public services.

As for EU citizens, long-term UK residents are entitled to state pensions even if they retire elsewhere and the 27 will be eager to secure that system.

Healthcare

At present EU residents in Britain and British residents living in other parts of the EU can claim free healthcare through several different systems.

EU residents working in Britain are entitled to be treated on the NHS just as if they were a British citizen and the cost is met through general taxation.

The situation for pensioners is rather different. Britons retiring to Spain, for example, have to register in the UK for a form that entitles them to Spanish healthcare. The cost of this is then billed to the UK and vice versa.

All EU citizens can also apply for a European health insurance card. This entitles the holder to treatment across the EU for visits of up to three months. Again, the costs are borne by the home nation.

While it should not be impossible to replicate these deals, one of the sticking points will be the legal jurisdiction under which they are governed. At the moment the framework is covered by the European Court of Justice but the government has ruled this out already.

There will also be questions about the fate of retired workers who do not return home or split their time between countries and which country should pick up the bill for their healthcare.

Deportation

The remaining 27 member states want to focus on maintaining the present rights of Europeans already resident in the UK. Under the existing system it is far harder for Britain to deport foreign criminals from EU countries than those from the wider world.

At last year’s Conservative conference Amber Rudd, the home secretary, vowed to “overhaul our legislation to toughen our approach to deporting EU criminals” even before Brexit takes effect. The government will be keen to avoid a two-tier system, where it is far harder to deport EU criminals who were resident in the UK before the referendum than those who arrived after.

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