What happens to EU27 citizens and UK citizens who have moved within the EU in the event of a ‘no deal’ Brexit?

In principle their position will be regulated by the withdrawal agreement under negotiations, but since it seems that talks on this agreement are becomingly increasingly difficult the possibility of the UK leaving the EU without any such agreement may have risen. This would leave the two groups of people in limbo, unless an alternative approach to securing their acquired rights is found.

It’s possible that a separate agreement on their rights could be agreed between the UK and the EU: I have suggested a text for such a “ring-fenced” deal. Another alternative is matching unilateral guarantees. The EU Withdrawal Act, which recently came into force, retains EU27 citizens’ rights in UK law for the time being, and the UK government has already tabled planned changes to the Immigration Rules to give effect to it. This could be matched by national law guarantees for UK citizens in the EU27 States, but for the sake of legal security a better approach would be EU-wide legislation on the issue.

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I suggest here a draft Regulation to give effect to that idea. (Denmark would not be covered, so would have to act unilaterally; Ireland could opt in). It is based on the text of the withdrawal agreement (which I commented on here), with several adaptations: retaining free movement for UK citizens who registered under the new system; a cut-off of the withdrawal date (Brexit day), on the assumption that there would be no transition period; and references to UK citizens and their family members only, except where EU27 citizens have been covered by the UK social security system and need recognition of those prior contributions.

It might be questioned whether the EU has the legal competence to adopt laws treating a Member State as a non-Member State before it leaves. However, the Commission has already made several legal proposals on the assumption that the UK is leaving, and if those proposals are legally sound it should follow that this one is also, provided that it does not apply until the withdrawal date.

In the event that it were only adopted after the withdrawal date, it could be backdated to ensure that no UK citizens or their family members will be treated as illegal residents. The Regulation would be based on Article 79 TFEU, which gives the EU power to adopt legislation on the legal migration status of non-EU citizens. Although the EU cannot harmonise national law on the numbers of people coming from non-EU countries to seek work (Article 79(5)), this Regulation would concern non-EU citizens already resident on the territory.🔷

Barnard & Peers: chapter 27

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(This piece was originally published on EU Law Analysis.)

(Cover: Dreamstime/Marc Bruxelle.)