Brexit and those currently exercising free movement rights

For as long as the UK remains a Member State of the European Union, it is subject to laws guaranteeing EU citizens the right to free movement throughout the Union. British citizens will continue to enjoy EU citizenship until the UK exits the EU.

The latest available data suggests that in 2015 there were around 1.2 million British citizens living in other EU countries, compared with around 3.2 million EU citizens living in the UK.

Free movement

Free movement is central to the concept of EU citizenship. It is a right enjoyed by all citizens of the Union (those with nationality of any of the 28 Member States).

Free movement of EUAll EU citizens have a right to reside in another EU Member State for up to three months without any conditions other than the requirement to hold a valid identity card or passport. After three months certain conditions apply, depending on the status of the EU citizen (eg whether they are a worker or a student etc). Those who opt to exercise their free movement rights are protected against discrimination in employment on the grounds of nationality. Provisions co‑ordinating social security rules ensure citizens do not lose entitlements by working elsewhere.

EU citizens who have resided legally for a continuous period of five years in another EU Member State automatically acquire the right to permanent residence there. To qualify for permanent residence, students and the self-sufficient must possess comprehensive sickness insurance cover throughout the five-year period. Confusingly, while EU citizens in the UK have access to NHS care, this does not satisfy the requirement to have comprehensive sickness insurance cover.

UK immigration law as it applies to non-EU citizens is significantly more restrictive.

What was said during the referendum campaign?

The Government White Paper noted that if the UK left the EU, remaining Member States would no longer be required to maintain the rights currently enjoyed by UK citizens. Securing these rights would likely require the offer of reciprocal protection for EU citizens resident in the UK.

Both the Vote Leave and Leave.EU campaigns claimed the status of EU citizens lawfully resident in the UK would be unaffected as a result of Brexit.

What has been said since the referendum?

The Government immediately sought to reassure EU citizens in the UK that there was no change in their status as a result of the vote to leave.

In the months since the referendum ministers have reiterated that the Government wants to protect EU citizens’ status. They say the only scenario in which such an outcome would be impossible is if the rights of British citizens in remaining Member States are not protected in return. Despite this, the Government has faced accusations of treating EU nationals as ‘bargaining chips’ in the expected negotiations with the European Commission.

Polls conducted since the referendum have all shown high levels of support for protecting the status of EU citizens lawfully resident in the UK.

How might rights be affected in the long term?

It remains to be seen how the Government may choose to offer such protection. It is not known whether it would require certain criteria to be met or whether conditions would be placed upon rights of residence. Nor is it clear by what procedures such residence rights would be sought and obtained. The Migration Observatory at Oxford emphasises the sheer scale of the administrative exercise that would be required to register all EU citizens currently resident in the UK.

British citizens living elsewhere in the EU have warned of the unintended consequences of Brexit should the Government fail to secure protection of their current status and rights in their host countries.

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