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How Could the UK Government Proposal on Residency Rights Affect UK Nationals Post Brexit?

UK Government Proposal- Reciprocity Could Threaten the Acquired Status of UK Nationals Living in Spain.

Posted in: Brexit, Information Topic, Myra's Blog,
Author: Myra Cecilia Azzopardi
Tags: ,

The UK Governments Proposal for EU Citizens in the UK and UK Nationals in the EU.

June 26 2017 (Only some chapters from the proposal have been discussed below. Numeration as on the proposal paper). C.A.B Spain paper.

 

 Preamble

There has been the formation of many European groups to either lobby against Brexit or are aiming to secure the position of UK citizens in the EU. There are 28 EU countries most following and transposing EU directives into domestic law. In many of the EU directives there are also options within the regulations so each country may have embraced or reject some of the numerous articles. Our area is Spain and my particular knowledge covers the EU directives that the Spanish government has included and of course the Spanish royal decrees that are also very pertinent for the existence in Spain for EU and non-EU citizens alike. Therefore this paper is relative only to Spain and those who reside here.

Those citizens who will arrive in Spain after the cut off date and holiday homeowners and how Brexit may affect them, should be discussed in a different paper.

It is clear from the proposal that there is little understanding of the way the EU directives are adequate in allowing EU citizens to apply for and maintain residency in Spain.

Below are details from the policy paper followed by the detrimental effect reciprocity could have on UK nationals residing in Spain. The numbers relate to the numbers on the policy. The response is in bold print.

The Proposal

Residence

6. A) After we leave the EU, we will create new rights in UK law for qualifying EU citizens resident here         before our exit. Those rights will be enforceable in the UK legal system and will provide legal
guarantees for these EU citizens. Furthermore, we are also ready to make commitments in the
Withdrawal Agreement that will have the status of international law. The Court of Justice of the
European Union CJEU) will not have jurisdiction in the UK;

 

This could result in that the Spanish government also seeks to introduce new laws not in line with the EU directives. UK nationals residing in Spain already enjoy fair rights on residency included in the EU Directives and the Spanish Royal Decrees. There appears to be no benefit to the hundreds of thousands of residents in Spain from the proposal above.

 

  1. B) Qualifying EU citizens will have to apply for their residence status. The administrative procedures, which they will need to comply with in order to obtain these new rights, will be modernised and kept as smooth and simple as possible;

 

All UK nationals residing legally in Spain, have applied for residency and usually within 90 days of stay and are registered in the ‘Register for citizens from the European Community. Should Spain consider reciprocity,  would result in that UK nationals already registered may have to re-apply?

 

  1. C) The application process will be a separate legal scheme, in UK law, rather than the current one for certifying the exercise of rights under EU law. Accordingly we will tailor the eligibility criteria so that, for example, we will no longer require evidence that economically inactive EU citizens have previously held ‘comprehensive sickness insurance’ in order to be considered continuously resident;

 

UK nationals living in Spain after exit would no longer hold the status of EU citizens. Already thousands are concerned that as their residency status was issued under EU law, could prompt the Spanish government to reciprocate and ask that all those already holding a residency certificate, (issued under EU law and registered as in the Spanish register as EU citizens) should re-apply as third country nationals.

 

  1. D) To qualify, the EU citizen must have been resident in the UK before a specified date and must have completed a period of five years’ continuous residence in the UK before they apply for settled status, at which point they must still be resident;

 

*Those UK nationals, who have resided in Spain for five years, have automatically achieved the right to permanent residency without having to take any further action. This could encourage the Spanish government to reciprocate asking UK nationals in Spain with permanent residency to re-apply. There is no legal difference between the EU citizen in the UK and the UK national resident in Spain as both have attained legal permanent residency under the EU regulations. The difference only being that the majority of EU nationals in the UK does not have a certificate to certify this. Few like their counterparts in Spain do hold a certificate.

 

  1. E) Those EU citizens who arrived and became resident before the specified date but who have not accrued five years’ continuous residence at the time of the UK’s exit will be able to apply for temporary status in order to remain resident in the UK until they have accumulated five years, after which they will be eligible to apply for settled status;

 

*UK nationals in Spain in the same situation will already hold temporary residency and will not need to apply after five years automatically having acquired  permanent residence status in that period. Reciprocity would mean that these residents would have to apply for permanent residence with all the complexities that could arise for them.

 

  1. F) The UK will continue to export and uprate the UK State Pension within the EU;

 

This is good news for those receiving UK State pensions and for those who in the future State pensioners.

 

  1. G) The UK will seek to protect the healthcare arrangements currently set out in EU Social Security Coordination Regulations and domestic UK law for EU citizens who arrive in the UK before the specified date and for UK nationals living in the EU before the specified date;

 

 The excerpt below is taken from the prime ministers statement to parliament on the 26 June 2017:

“Finally, the UK will continue to export and uprate the UK State Pension and provide associated healthcare cover within the EU”. This is encouraging except that the actual policy paper omits the statement above and only states that:

 

“ The UK will seek to protect the healthcare arrangements currently set out in EU Social Security Coordination Regulations and domestic UK law for EU citizens who arrive in the UK before the specified date and for UK nationals living in the EU before the specified date”;

 

Some residents in Spain are reading the above statement as, suggesting that the offer of rights to healthcare abroad are only in respect to those who are already State pensioners and cutting of healthcare for those who will become pensioners after the cut off date. That is not how I interpret  chapter 6. G) but in fact that this only relates to the social security coordination and not to the right of healthcare for future state pensioners. 

 

10) There is no need for EU citizens to apply now for EU documentation under the free movement rules to prove they are exercising Treaty rights or have a current right of permanent residence in order to secure their status post-exit. Nor will they need to apply for their new British settled status before our exit. However, we are planning to set up an application process before we leave the EU to enable those who wish to do so to get their new status at their earliest convenience. For those who have already obtained a certificate of their permanent residence, we will seek to make sure that the application process for settled status is as streamlined as possible.

 

That the UK government are not respecting the accrued rights of permanent residency of EU citizens in the UK and asking that they apply for settled status (permanent status under another name).  Would this not be against the accrued rights of those EU citizens?  Disregarding the right already obtained in EU law to continue to live permanently in the UK with no further action.  Reciprocal action by the Spanish government could have negative consequences on the status of permanent residents in Spain,  who have already gained these rights provided for in the EU Directives after residing legally in an EU country for three or five years.

 

14) After we leave the EU, the UK will no longer be subject to EU law. Free movement rights will come to an end and therefore cannot be carried forward, as an EU legal right, into the post-exit UK legal regime 4. From that point on, the future rights of EU citizens (and their family members) resident in the UK before our departure will depend on the commitments which we may jointly agree with the EU in the Withdrawal Agreement, or upon unilateral action by the Government. We expect to see equivalent guarantees put in place for UK residents in the EU.

 

Majority of UK nationals resident in Spain are content with the status quo. What chapter 14 states  could result in loss for UK nationals existing status and rights already enjoyed under the EU directives. These rights would have encouraged decision making  when choosing to retire, reside and work in Spain. Many families have resided in Spain for numerous years with children who have  integrated into Spanish life. Most do not wish the EU to reciprocate the UK’s  guarantee for our future status mimicking a UK law not even considered at this stage.

 

16) The UK fully expects that the EU and its member states will ensure, in a reciprocal way, that the rights set out above are similarly protected for UK nationals living across the EU before the specified date. Firstly, UK nationals in the EU must be able to attain a right equivalent to settled status in the country in which they reside. Secondly, they must be able to continue to access benefits and services across the member states akin to the way in which they do now.

 

It could appear that a thank you is in place for the UK governments concern for guarantees for UK nationals living in the EU. We already have those rights and will not appreciate that the reciprocity of some of the proposals posted above could take these away from us.

 

17) All EU citizens (and their families) in the UK, regardless of when they arrived, will, on the UK’s exit, need to obtain an immigration status in UK law. They will need to apply to the Home Office for permission to stay, which will be evidenced through a residence document. This will be a legal requirement but there is also an important practical reason for this. The residence document will enable EU citizens (and their families) living in the UK to demonstrate to third parties (such as employers or providers of public services) that they have permission to continue to live and work legally in the UK. Following the UK’s exit from the EU, the Government may wish to introduce controls, which limit the ability of EU citizens (and their families) who arrive in the UK after exit to live and work here. As such, without a residence document, current residents may find it difficult to access the labour market and services.

 

This will likely put the same burden on UK nationals legally resident in Spain to follow the same application and obtain immigration status. Repeat that UK nationals already have a permanent residency status. That EU citizens in the UK who also have acquired that right should on exit have to obtain this status appears to go against the rights acquired under EU regulations.

 

18) For those EU citizens who became settled in the UK before a specified date, which the Government proposes will be no earlier than 29 March 2017, and no later than the date of the UK’s withdrawal from the EU, we will, subject to their meeting limited criteria on application, give them a new settled status in UK law.

 

This “limited criteria” should be discussed urgently. Again UK citizens residing in Spain will not be pleased at points 17 or 18 being reciprocated. When Spain decides to look at any residency issue, it will likely do so on not such a “limited criteria”. The criteria used are harsh when the ministry has carried out what are illegal systematic checks on temporary residents.

 

 21) Obtaining settled status will be subject to meeting certain requirements. The eligibility criteria will be set out in UK law, but the essential conditions will be:

a requirement for the applicant to have been resident in the UK for a set length of time. We propose to align this with the current EU general standard for permanent residence – which is in most cases five years; and an assessment of conduct and criminality, including not being considered a threat to the UK.

 

It is the “eligibility criteria” to be set out in UK law as yet unknown which could be of concern again with reference to reciprocity for those UK nationals in Spain.

 

22) The scheme we establish for applications from EU residents (and their families) for permission to stay will not be legally the same as the one which is currently available for those wishing to obtain confirmation of their residence status under the Free Movement Directive. The UK will no longer be bound by this Directive and will tailor the eligibility criteria, subject to any provisions contained in the agreement with the EU, to suit the demands of this unique situation. For example, we will no longer require evidence that economically inactive EU citizens have previously held ‘comprehensive sickness insurance’ in order to be considered continuously resident. This will apply only for the purpose of determining their residence status: we will seek to protect the current healthcare arrangements for EU citizens, for example, to allow a tourist or student who presents a valid European Health Insurance Card (EHIC) to be able to get treatment on the NHS (see paragraphs 47 to 49 for more detail).

 

The reference to not requiring evidence that economically inactive EU citizens will not have to prove that they held comprehensive sickness insurance will be appreciated by their counterparts in Spain.

 

28) There will be some EU citizens who were resident in the UK before the specified date but who will not have obtained settled status or met the five years’ residence requirement by the end of the grace period of blanket permission. They will be allowed to stay in the UK until they reach the five-year point, but they will need to apply to the Home Office for permission for this (leave to remain). At the five-year point, they will be able to apply for settled status.

 

Presently UK nationals, who have not met the five-year residence requirement for permanent residency, will acquire the status with no further actions. Some workers either employed or self-employed will attain permanent status after three years. The system suggested by the UK if reciprocated, will undo a system that has been in place in Spain for many years and working perfectly well.

 

37) There is no need for EU citizens to seek residence documentation now under the current free movement rules. These documents confirm that EU citizens are exercising their free movement rights in another member state. As free movement rights will end on the UK’s exit, we intend to introduce a replacement scheme under UK law. EU documents certifying permanent residence will not be automatically replaced with a grant of settled status, but we will seek to make the application process for settled status as streamlined as possible for those who already hold such documents.

 

“EU documents certifying permanent residence will not be automatically replaced with a grant of settled status, but we will seek to make the application process for settled status as streamlined as possible for those who already hold such documents”. Should this be reciprocal, hundreds of thousands of UK nationals residing as permanent residents and with documentation stating permanent residents could pose this status and be asked to apply for permanent residence. This would be totally unacceptable.

 

39) After our departure, it will become mandatory to apply for permission to stay in the UK. The eligibility criteria (as set out above) will be the same as under the voluntary system. As set out in paragraphs 23 and 26, there will be a grace period of blanket permission to allow EU citizens and their families’ time to apply for permission.

 

On the UK departure date, more evidence that the UK nationals legally residing in Spain could lose the acquired residency status and have to re-apply.

 

Export of UK benefits to the EU

 42) Existing rules on the rights of EU citizens and UK nationals to export UK benefits to the EU will be protected for those that are exporting such UK benefits on the specified date, including child benefit, subject to on-going entitlement to the benefit. Those not exporting UK benefits at the specified date will be treated on the same basis as UK nationals in future. We will need to ensure that we have the necessary arrangements in place for information and data to continue to be shared between the UK and EU in respect to benefits, and that UK nationals in the EU are protected in the same way.

 

This option appears to close the door to those UK nationals already residing in Spain who would be entitled to exportable benefits such as some disability allowances and other benefits. Such an action could cause hardship to some pensioners and disable UK nationals residing in Spain.

 

Coordination of social security systems between the UK and EU

43) The UK intends to continue to apply the rules for determining which country is responsible for deciding entitlement and to aggregate periods of relevant insurance, work or residence within the EU made before exit to help meet the entitlement conditions for UK contributory benefits and State Pension even where entitlement to these rights may be exercised after exit. We would expect member states to do the same for their contributory benefits and pensions.

 

The section above can be said to be positive for future UK State pensioners who are already residing in the EU.

 

Pension up-rating

44) UK law already provides that UK state pensions are payable to anyone eligible, wherever they reside in the world. But annual increases to the UK state pension (known as ‘uprating’) to anyone living in the EU are payable because of EU law. The UK intends to continue to export and uprate the UK State Pension within the EU, subject to reciprocity.

 

The above sections should allay the fear of losing increases in pension payments.

 

45) Currently EU citizens living in the UK and UK nationals residing in the EU enjoy access to public services such as healthcare, education and social housing. Our clear intention during negotiations is to ensure that these individuals continue to enjoy these entitlements and healthcare arrangements.

 

The public services mentioned above are already afforded to those legally residing in Spain with entitlement if meet the requisites. The EU directives do not affect these rights, as they are fundamental and inscribed in Spanish domestic law.

 

Healthcare

49) During negotiations, the UK will seek to protect the healthcare arrangements currently set out in EU Regulations and domestic UK law for UK nationals and EU citizens who benefit from these arrangements before the specified date. We will also seek to protect the right of UK nationals and EU citizens to obtain and benefit from the European Health Insurance Card scheme. This will ensure that EU citizens are still eligible for NHS funded healthcare in the UK and vice versa for UK nationals in the EU.

 

49) Has caused concern for UK nationals resident in the EU. The reason being that it is not easy for most to discern the meaning of the above. It does in fact relate to the coordination between the EU countries for the receipt of benefits including healthcare for State pensioners. This is within the social security coordination EU system and the chapter 49 refers to the intention of keeping these in place (S1 for example) and not that the receipt of healthcare will only be for those already receiving this before the cut off date. Note* 47) Note A) Oral statement to parliament ‘PM Commons statement on European Council: 26 June 2017’. Would have been better to include this in the policy paper.

 

 *47) EU healthcare arrangements are set out in the same Regulations as rules on exportability of benefits, pensions and protection of worker contributions to ensure coordination between member states allowing individuals to move within the EU. These Regulations enable those who have moved to the EU and continue to receive a UK benefit or draw a UK state pension to receive healthcare cover by the UK (reciprocal healthcare arrangements) in their country of residence. The Regulations also enable UK-insured residents to obtain a European Health Insurance Card, allowing them to benefit from free, or reduced cost, needs-arising healthcare while on a temporary stay in the EU.

 

A)* Finally, the UK will continue to export and uprate the UK State Pension and provide associated healthcare cover within the EU. We will continue to protect the export of other benefits and associated healthcare cover, where the individual is in receipt of those benefits on the specified cut-off date. And subject to negotiations we want to continue participating in the European Health Insurance Card scheme, so that UK cardholders could continue to benefit from free or reduced cost healthcare while on a temporary stay in the EU and vice versa for EU cardholders visiting the UK.

 

The views expressed in bold are the views of Myra Cecilia Azzopardi founder CEO and senior adviser of CAB Spain in response to the UK governments  proposal. The volunteer advisers of CAB Spain work with the EU Directives and the Spanish Royal Decrees daily. The thousands of followers of CAB Spain rely on our charity to provide them with accurate information on residency; healthcare, pensions and all other matters relating to residing or owning a holiday home in Spain.

We should be aware that this is proposal only. The system that the UK government wants to put in place for EU citizens in the UK and UK nationals in the EU, has to be agreed upon if there is to be a deal.

 

Note*  17/07/2017  Received the answer to the UK proposal from the EU Brexit team:

Assessment of the Brexit Steering Group on the UK Policy Paper

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Please note: The information provided is based upon our understanding of current legislation. It is not legal advice but is provided freely to enable you to be properly informed. We recommend that if you are considering taking action, you should seek professional advice.

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