A momentous day in Brexit negotiations?

Perhaps there is no doubt about the significance of reaching an agreement for trade negotiations to start in earnest, but it is unclear yet as to what has changed since the early part of this week. We believed that the citizens’ rights issue was never really going to be more than a pawn in the negotiating game, and therefore it was not likely to be the stumbling block. Nor, indeed, was the divorce bill – the final figure was always going to be subject to the detail in the trade negotiations.

However, the Irish border has proved to be the biggest issue and it appeared from the press conference on 8 December that it is indeed being treated as a special case given its unique position of having the only land border with the EU. That point was stressed by Theresa May when she appeared to give a clear message to Wales, Scotland and London that there will not be a 'one size fits all' solution to the soft border. What has been agreed this week will no doubt come out in the details that will surface later as talks progress.

Citizens’ rights

The Brexit immigration agreement will provide broad comfort to all EU citizens working in the UK and to those UK citizens working in the EU. It will allow all of them to continue ‘as they are’, provided that they register their rights within two years following Brexit.

However, there was no agreement reached regarding the general preservation of current rights for UK citizens residing in the EU, so it remains a possibility that they may no longer be ‘EU mobile’.

UK citizens in the EU could become landlocked in their country of Brexit residence – unless they apply for an EU passport. Those who leave (the UK or EU country of residence at the time Brexit occurs) for more than five years will lose their residence right. The rights preserved are limited to existing UK nationals working in the EU at Brexit and vice versa (including cross-border workers) as well as their family members. So Withdrawal Agreement rights will not extend to new EU nationals or new UK national workers after Brexit.

In other words, the withdrawal deal will preserve the status quo for existing individuals affected but not otherwise to preserve existing EU rights of UK nationals abroad (or EU nationals in the UK).

What has not yet been discussed?

The following additional matters have been raised by the UK but were outside the scope of the EU mandate for the first phase of the negotiations:
  • the continuing protection of rights for UK nationals covered by the Withdrawal Agreement who move after the specified date to take up residence in another EU member state;
  • posted workers;
  • future healthcare arrangements;
  • professional qualifications, including future recognition decisions, recognition of qualifications of non-residents, and equal treatment for professionals who are neither frontier workers nor resident;
  • recognition of licences and certificates that are currently recognised EU-wide;
  • lawyers practising under home title;
  • territorial scope of economic rights, in particular secondary establishment and cross-border provision of services.
Unless addressed during the discussions of the post-Brexit trade agreement, there is no agreement that new EU nationals can come to work in the UK nor that UK nationals can go to work in the EU once the proposed two-year transition period ends.

The tone of the agreement is clearly ‘reciprocation’. If the UK offers continued mobility / professional access it may also obtain it in return (for example, for accountants, lawyers, doctors etc). However, it is unclear how the rights for other UK nationals to move between EU member states (part of freedom of movement) will be retained, since the UK is intent on ending this general right at Brexit for EU nationals. It appears likely that, unless you hold a professional qualification, your free movement rights will end at Brexit.

Overall the consequence of this approach (unless expanded by a trade deal) is that, as EU nationals return to their home country, they will lose UK rights if they don’t return to the UK. There will be similar implications for UK citizens in the EU. The size of the group covered by the Withdrawal Arrangements will therefore dwindle over time, as individuals and their families move back to their native EU countries (or other EU states), and UK nationals return home. Those individuals who do remain abroad would, in due course, be entitled to citizenship in their country of residence, in the normal way. This means that, in approximately seven or eight years, most EU nationals in the UK could choose to become UK citizens, and UK citizens in the EU choose to become EU nationals, so that eventually the Withdrawal Rights will no longer be relevant.

An eight-year period for the continued involvement of the ECJ in immigration rights issues was stated in the Joint Report issued at the press briefing on 8 December. Presumably this is tied in with this thinking. Therefore, it will be almost ten years before decoupling is completed and national rights prevail.

Summary of divorce and Irish border

When it comes to the divorce bill, the UK has committed to paying its share into the EU budget for 2019 and 2020, and also budgeted projects under the European Development Fund (EDF). Should we not wish to continue to benefit from them then we have the right to withdraw and stop contributing to projects. Clearly, neither party wishes to put specific figures together at this time as much will depend on the trade negotiations.

There has been much discussion this past week regarding the Irish border. Whilst it appears as if a breakthrough has been made, the feeling today is that this particular problem has simply been ‘kicked down the road’. Both parties agree that a hard border is to be avoided at all costs but have not said how.

Initially, the UK and Ireland will use their relationship to have bespoke discussions. If these fail then we will introduce ‘specific solutions’ as a result of the ‘unique position’ of Northern Ireland. Then, if these fail, the UK will maintain full alignment with those rules of the internal market and the Customs Union which, now or in the future, will support north-south co-operation.

Certainly it is to be hoped that the spirit of compromise espoused at the press conference will be continued into the negotiations over the next few months if this fragile agreement is to be held together.