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As We Near the Brexit Withdrawal Date and the EU UK Progress Report

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

In Relation to the Joint Report – European Commission and the UK Government. December 8 2017

The resolution agreed to by the EU and UK negotiating teams and published in the formal join report is to be introduced to the Plenary at the EU Parliament and when affected will be sent to the European parliament to be discussed and voted on next Wednesday. Both sides feel that assessment of the state of the negotiations is positive and the requests of the EU parliament have been achieved. All citizens’ rights and all benefits will be covered.

Please note* The report is considered as being favourable to the EU and UK does state that “This report is put forward with a view to the meeting of the European Council (Article 50) of 14-15 December 2017. Under the caveat that nothing is agreed until everything is agreed, the joint commitments set out in this joint report shall be reflected in the Withdrawal Agreement in full detail. This does not prejudge any adaptations that might be appropriate in case transitional arrangements were to be agreed in the second phase of the negotiations, and is without prejudice to discussions on the framework of the future relationship”.

The joint report is reciprocal pertaining only to EU citizens residing in the UK and UK nationals residing in the EU27 member states; those who exercised their freedom of movement choice before and up to the withdrawal date (March 2019).

Note* the settled status proposal has been discussed in each negotiating round. The outcome remains the same with the UK only making the application process simpler. (Previously the application consisted of 85 pages and was complex). The fees will now be about the same as for a UK passport.

The UK government has not adhered to the European Directive on freedom of movement by assuring that all EU citizens residing in the UK were registered within 90 days of their stay. This has resulted that the majority who are residing, working and have families and children, are not on any register. For this reason the UK government have come up with a scheme where the citizens including the few who may already have a certificate of permanent residence, will have to reapply for settled status. We can understand that the lack of concern shown by the UK government in the future status of those of its citizens residing in the EU 27, is mainly due to the UK governments stubborn insistence on restricting the residency rights of EU citizens in the UK.

As stated above that the agreement is reciprocal, it is highly likely that as we lose our EU citizenship, we will no longer be entitled to reside under that status. Our certificates conditions that we are citizens from the European union and as such we are registered on the database for EU citizens. It is for this reason we should be prepared in the knowledge that Spain could take the option provided for them (16 of the joint report) where they could ask that UK nationals make an application to replace our present residency certificates for a residency document in line with our new status. We should expect that we will have two years to change our status and that the two year rule of absence for permanent residents losing their right to reside will be extended to five years.

Please note 16, from the joint report:

16. The UK and EU27 Member States can require persons concerned to apply to obtain a status conferring the rights of residence as provided for by the Withdrawal Agreement and be issued with a residence document attesting to the existence of that right. Where the host State requires persons concerned to apply for a status, no status is obtained if no successful application is made, subject to paragraph 17e. The UK and EU27 Member States can also continue with the present system under which entitlement of rights under the Withdrawal Agreement may be attested by any other means of proof than a residence document.

It important to add numbers 22 and 23 from the joint report:

22. The UK and EU27 can apply more favourable national provisions in accordance with Article 37 of Directive 2004/38/EC.

23. In order to obtain status under the Withdrawal Agreement by application, those already holding a permanent residence document issued under then Union law at the specified date will have that document converted into the new document free of charge subject only to verification of identity, a criminality and security check and confirmation of ongoing residency.

(We at CAB Spain understand that the confirmation of ongoing residency will likely include the provision to the authorities of documentation to prove this right). This is how this right is concluded pre Brexit.

The reciprocity of the agreement on the change of immigration status has been a contentious issue and clearly written about in various reports from CAB Spain. Though the joint report makes it clear that our right to remain is assured, that the need for EU citizens in the UK to make application for settled status (permanent residence) and temporary residence that this action would be reciprocal affecting all UK nationals in the EU27. Our argument has been that we have already acquired a documented right to reside under the EU directives. This also includes the right to attain automatic permanent residents status after five years of legal residence without having to make any further applications. CAB Spain has brought up the complications that we can expect during transition of our status, on all our communications with the EU Brexit teams.

The concern about the process for a transition of our status is not some made up theory but backed up with documentation where some Spanish civil servants have made the simple things in relation to residency certificates complicated. Some examples; where residents have been asked to reapply for residency when attempting to update a certificate to show that they are permanent residents, change of address or circumstances, application for a duplicate for a lost, stolen or damaged certificate, the refusal of healthcare because the INSS and health centres have thought that a valid A4 residents registration certificates had expired, where many pensioners with the legal right to reside received letters from the Spanish government regionals foreigners departments, insisting that they should prove their continued right to residency by providing all the documentation provided on their first application. The latter was carried out systematically and is against the EU directives. We have many more examples and of course the verbal information for those being refused duplicate or updated certificates because of the triggering of article 50.

I suggest that those living here without documentation should also be able to apply for a residency certificate by proving they are residing in Spain by other means than a certificate as in the agreement. They would have to meet the requisites of course. Also as reciprocal, all residents should be given the same rights of two years after the withdrawal agreement to apply. Note number 16 of the report.

Pensions and healthcare have been discussed with the promises from the UK that they will continue with the same system that is in place now for those residing here before the withdrawal date. I would expect this to include those who are residing in Spain but not reached pensionable age. (The same is to be said on taxes and the dual taxation agreement currently in place) It would have reassured many British pensioners in Spain if one of the government bodies had at least stated that Pensions and healthcare are agreements between the individual countries and not governed by EU directives. The EU participates with the provision of the many forms such as the S1 and pensions provided by the EU member’s states.

Rather than add a response to all the points raised in the Joint Report, the papers has been added to this post so that our citizens can read the full text and form their own opinions. I suggest that there are areas that are not well defined and leave us with no knowledge of what could occur after the withdrawal date where certain decisions will be reverted to domestic law.

It is our obligation as citizens to follow the negotiations and make our voices heard. Those who are waiting till the final settlement I fear, will be too late to take a proactive part in their future.

Joint Report EU and UK December 8 2017.

Previous posts on this subject. Please note that our concern on our residency rights have been the ongoing theme during the negotiations.

A Time for Reflection June 24 2016

CAB Spain Concerns about the Spanish authorities reaction to the referendum in the interview of June 24 2016 below.

Brexit Hangover. Impromptu chat with Talk Radio Europe June 24 2016

Will we still meet the requirements under which residency was conceded? April 3 2017

How could the UK Governments proposal have an affect UK nationals in Spain post Brexit July 13 2017

UK Nationals in Spain residency rights post Brexit September 3 2017

UK Government continue to jeopardise our residency status. October 13 2017

More posts on this subject on the Brexit Link

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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