When on 23 June 2016 a small majority of the UK voters voted in favor of leaving the EU[1] – in fact on the dissolution of the UK membership of the EU – no one knew exactly what implications this will of the people would have in years to come. When the formal negotiations between the UK and the EU about the exit conditions started on 19 June 2017, the Midsummer Night’s Dream of 2016 became reality. And in this exit process the UK and the remaining EU member states each have their own particular agendas.

The aim of this contribution is not to analyse the legal standards of international law during and after the Brexit negotiations, but merely to underpin the complexity of the legal status of the residents with nationality of other EU member states in the UK and the UK nationals with residence in the EU if and when a legal agreement is reached that ends the UK’s status as a Member State.

Freedom of movement
One of the most important and precious rights of EU citizens is the right to move and reside freely within the EU. Although within its political constellation Brexit is unique – the UK is the first Member State ever to decide to leave the EU – it is interesting to look at how other international treaties that govern the rights of movement and residence of a population deal with dissolution of states and the succession of such rights.

In recent history, particularly in the 20th century, the political map of Europe and the European territories (former colonies) was shaped by advanced legal instruments. The core legal instruments of the United Nations include a set of fundamental human rights, as well as regional legal instruments such as The Convention for the Protection of Human Rights and Fundamental Freedoms and protocols of the Council of Europe[2] which provide guiding principles on human rights, including the right to private and family life, the right on effective legal remedy and prohibition of discrimination. These fundamental rights of persons who were residents of Member States need to be respected in case of a change in sovereignty.[3] In the light of the initiatives for political independence of Member States, the impact of state succession[4] on the right to reside permanently has become the focus of research that will contribute to new doctrines.[5] The Versailles Peace Treaty, which was signed after the end of WWI – and related treaties, such as the Treaty of Saint-Germain-en-Laye (1919) – introduced the right to opt for the citizenship of another state than the one where the person resided.[6] Other treaties which were signed after WWII contained similar provisions, such as the Treaty of Peace with Italy.[7] Further development of international law led to new standards in the field of international treaty law,[8] by introducing guiding principles: free consent, good faith and pacta sunt servanda which inspired drafters of the latest instru­ments in this field[9] and legislators at national level.

Acquired rights
All the above-mentioned instruments of international law along with case law from international courts that decided about violation of the fundamental legal standards on human rights when it came to the change of the status of populations or parts thereof, have resulted in international customary law. An important part of it applies to the ‘acquired rights’ of that part of the population that might stand to lose important rights that they had prior to the change of sovereignty of the state they resided in. The principle of acquired rights and their reflection has clearly also influenced the UK government, which expressed its commitment to respect all the rights of EU residents that they enjoyed under the EU law in its White Paper.[10]

Article 50 of the EU Treaty stipulates that “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”, however little is said about concrete steps and guaran­tees.[11] A week after starting the formal negotiations with the EU about leaving the EU on 19 June 2017, the UK government published a policy paper on the rights of EU citizens. The said document transposes the rules of respective EU Directives related to those EU citizens who wish to stay in the UK.[12]The EU Treaty assures every EU citizen who holds the nationality of a Member State the following rights,[13] which UK nationals will lose when Brexit takes effect:

  • the right to move and reside freely within the territory of the Member States;
  • the right to vote and stand as a candidate in elections to the European Parliament;
  • the right to diplomatic representation;
  • the right to petition;
  • the right to write to any Community institution or body in one of the languages of the      Member States and to receive a response in the same language;
  • the right to access European Parliament, Council and Commission documents, subject to  certain conditions.

The right to move and reside freely.
The core legal instrument of the EU which implements the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States is Directive 2004/38/EC.[14] This Directive – which in fact applies to the migration right of the nationals of the Member States and their family members – leaves room for the Member States to restrict the right to move and reside freely in case of reasons of public policy, public security, or public health. EU citizens and family members who do not hold EU citizenship are allowed to cross national borders without a visa.
On the other hand the Directive stipulates that the right to reside is conditional on exercising an economic activity as an employed or self-employed person, or having sufficient resources and comprehensive health insurance so as not to become an unreasonable burden on the welfare provision of the host Member State. Union citizens have also the right to be accom­panied by their spouse/partner and children under the age of 21, or dependent, regardless of their nationality, i.e. even if they are not EU citizens. Union citizens who are not students can also be accompanied by dependent relatives in the ascending lines (i.e. parents and grandparents). Family members have a right to work and exercise an economic activity and benefit from the general right to equal treatment.

Facts and figures: the statistics
Let’s look at some statistics to get an idea of how many people will be affected by Brexit within the UK and the EU. According to a study from 2008, the expansion of the EU from 15 to 25 countries on 1 May 2004 has had a major impact on the British labour market.[15] In contrast with the majority of the 15 other ‘old’ Member States, the UK did not restrict access to the labour market for citizens of the new Member States. The so-called ‘Worker Registration Scheme’, which was in force for seven years, allowed nationals of eight of the ten new EU members to work in the UK. For the two Member States that acceded in 2007 (Bulgaria and Romania), it applied restrictions. By 2008 the total number of foreign EU citizens living in the UK reached about 900,000. According to recent statistics from October 2016, the number of EU-born residents in the UK in the first quarter of 2016 was 3.5 million.[16] In July 2016, BBC News estimated there were 2.9 million EU nationals living in the UK with Polish as the most common nationality.[17] About 2.15 million of these EU nationals were in employment. The number of UK nationals living in EU countries is estimated at 1.2 million. Other interesting statistics surrounding Brexit are that in 2016 the number of applications for British citizenship from EU nationals tripled, while applications for Irish citizenship from UK citizens increased by 70%.[18]These statistics speak for themselves in suggesting that the UK government faces an enormous administrative task and that the completion of all Brexit phases will take several years. Granting eligible EU citizens an adequate residence status will probably be one of the most expensive administrative operations undertaken by the UK authorities ever.

Possible gaps in the rules on residence in the EU and the UK
On 26 June 2017 the UK government published a policy paper which presents the views and plans on how the UK intends to secure the rights that citizens of Member States and their family members currently enjoy under EU law.[12] They are provided with a new status: the status of ‘settled’, which is not assigned automatically, but one they can apply for. Applicants will have to provide evidence of their eligibility unless an official source (such as an employment database) confirms five years of continuous presence in the UK. Further­more, they will have to prove their identity with a biometric ID and pay a fee, which, according to the document, will be reasonable. The policy paper also claims that the use of information technology should ensure swift and effective processing of the applications while limiting the administrative burden to a minimum.
At first sight the policy paper provides solutions to the most common situations and mentions a two-year grace period for settled-status applications. However, the government reserves the right to carry out security checks and to refuse applications based on criminal convictions or in cases where the individual could pose a threat to national security.

Borderline cases
Compared to the legal systems of most other EU countries, the UK legal system has a relatively broad discretionary power. There are no UK laws regarding registration of residence, and carrying a national identity card is not compulsory. Considering the variety of circumstances EU citizens living in the UK may find themselves in, there will be some who will not meet the conditions for a settled status and as a result will not be able to acquire the rights they had before Brexit, as illustrated in the borderline cases below.

Lack of source of income – non‑EU citizen who divorced EU citizen
Mr Novak, a national of one of the EU member states that joined since 2013 settled in the UK in 1992 and established a company there in which he was self-employed. In 1994 he married a Brazilian national who gave birth to twins in London in 1995. Mrs Novak was never employed, but assisted her husband with running the business and was a homemaker. In July 2017 Mr Novak filed for divorce. Mrs Novak has had to leave the house where she lived and also lost her income. As a result she has no means to support herself.

Lack of evidence to prove five years of continuous residence
Mr Hadzic moved to the UK in his early childhood and has lived there since 1994. He was born in a non-EU country and is a national of that country which joined the EU in 2013. His parents have since returned to their native country while their son stayed in the UK. He did not complete his education, but has been able to find seasonal work in construction throughout the UK and occasionally in Ireland. However, he is unable to provide evidence of his employment, nor can he prove that he has had continuous health insurance. He is also unfamiliar with the IT devices required for online applications.

Discontinuity of five years’ residence
Mrs Marie is a national of an EU member state and her husband is a national of a non-EU country. She owns the house in London where she moved to in 2000. In 2015, she and her husband moved to Pakistan, but three times a year they spend a month in London where they rent their house back. It is the main source of income for the couple and their three children who now all live in India. In June 2017, Marie and her 10-year-old disabled son who acquired UK citizenship by virtue of birth, returned to London.

Conclusions and recommendations
Brexit and the measures announced by the UK govern­ment to implement it have triggered a debate about how to deal with the many different situations EU citizens living in the UK may find themselves in. Decisions will have to be taken regarding people with minor criminal convictions, those with a break in their employment and those who left the UK for short periods or who had no fix abode within the UK.
There were many cases of state succession in Eastern Europe in the early nineties. Though the legal context of these differs from that of Brexit, we can conclude that national legal solutions, if in conformity with funda­mental legal standards and customary law regarding change of sovereignty, offer the best protection for the rights of foreign nationals in various scenarios.

The UK will remain bound by the Council of Europe treaty law and Article 14 of the European Convention on Human Rights and protocols which prohibits discrimination. Thus, the actions of the UK will be scrutinized by the European Court on Human Rights.

A quick processing of applications will result in fewer complications and cases handled by different courts, including the European Court of Human Rights. Good IT support and well-trained staff will ensure EU legisla­tion is quickly converted into UK legislation, securing the status of the persons concerned. Although the introduction of a compulsory national ID card has long been unpopular with the UK public, a new attempt could be successful and have positive effects for both residents and the State.

Further qualitative analysis of applications by UK citizens for nationalities of EU member states (the majority of the EU countries where UK nationals reside tolerate dual nationality) and the increase in marriages and partnerships between EU and UK nationals may provide new insights into the current reality. In the absence of such statistics and clear responses on how to handle borderline cases, there is a risk that specu­lations may turn the public opinion against a process which is already highly sensitive.

Finally, a clearer definition of residence would be beneficial for both the UK and the remaining EU member states. The basic rules set out in the 2004 Directive 38/EC need some more clarification and Brexit is an opportunity for the remaining 27 member states to draw up their own national laws regarding residence.

1 EU referendum: The result of maps and charts. 24 June 2016. http://www.bbc.com/news/uk-politics-36616028
2 European Court of Human Rights. The Convention on Human Rights. http://www.echr.coe.int/pages/home
3 European Court of Human Rights Case Kuric and Others v Slovenia, Application No. 26828/06. http://www.refworld.org/cases,ECHR,4fe9c88c2.html
4 Vienna Convention on Succession of State in respect of Treaties. http://legal.un.org/ilc/texts/instruments/english/conventions/3_2_1978.pdf
5 Marrero González, G. (2017). Civis Europaeus Sum? Consequences with regard to Nationality Law and EU Citizenship status of the Independence of a Devolved Part of an EU Member State. Wolf Legal Publishers (WLP), Oisterwijk, The Netherlands.
6 Treaty of Peace between the Allied and Associated Powers and Austria. http://treaties.fco.gov.uk/docs/pdf/1919/TS0011.pdf
7 Treaty of Peace with Italy. https://treaties.un.org/doc/publication/unts/volume%2049/v49.pdf
8 Vienna Convention on the Law of Treaties. https://treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf
9 Council of Europe. European Convention on Nationality, No. 166. https://rm.coe.int/168007f2c8
10 HM Government (2017). The United Kingdom’s exit from and new partnership with the European Union. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/589189/The_United_Kingdoms_exit_from_and_partnership_with_the_EU_Print.pdf
11 The Lisbon Treaty Article 50. http://www.lisbon-treaty.org/wcm/the-lisbon-treaty/treaty-on-European-union-and-comments/title-6-final-provisions/137-article-50.html
12 The United Kingdom’s exit from the European Union: safeguarding the position of EU citizens living in the UK and UK nationals living in the EU. Policy Paper, 26 June 2017. https://www.gov.uk/government/publications/safeguarding-the-position-of-eu-citizens-in-the-uk-and-uk-nationals-in-the-eu
13 European Parliament. The citizens of the Union and their rights. http://www.europarl.europa.eu/atyourservice/en/displayFtu.html?ftuId=FTU_2.1.1.html
14 Official Journal of the European Union. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF
15 Blanchflower, D. and Lawton, H. (2008). The Impact of the Recent Expansion of the EU on the UK labour market. IZA, Bonn, Germany. http://ftp.iza.org/dp3695.pdf
16 The Migration Observatory at the University at Oxford. (2016). EU Migration to and from the UK, 31st October 2016. http://www.migrationobservatory.ox.ac.uk/resources/briefings/eu-migration-to-and-from-the-uk/
17 Reality Check: How many EU nationals live in the UK? BBC News, 8 July 2016. http://www.bbc.com/news/uk-politics-uk-leaves-the-eu-36745584
18 Bulman, M. (2017). Brexit: EU nationals seeking British citizenship tripled in past year, new figures show. The Independent, 1 June. http://www.independent.co.uk/news/uk/home-news/brexit-latest-eu-applicants-nationals-british-citizenship-more-than-triple-past-year-european-union-a7767031.html

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Alenka Prvinšek Persoglio started her career in 1980 in the Ministry of Internal Affairs of the Republic of Slovenia, and was appointed State Under­secretary for Migration and Naturalisation in 2001. She represented her country in the Committee of Experts on Nationality of the Council of Europe and chaired the working party that prepared the draft Convention on Nationality on Avoidance of Statelessness in Relation to State Succession.
In 2004 she joined the International Centre for Migration Development Policy in Vienna where she worked as a Senior Policy Advisor until 2013 when she co-founded
the international NGO Interact4c, which deals with the formulation of policies in matters on civil status.

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