Posted by on Mar 10, 2018 in LEGAL UPDATES

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“Future for EU Brits remains unclear” by Charlotte Oliver

March issue 2018

A group of British citizens living in Holland recently presented a claim to the Dutch courts arguing that EU citizenship is a right that cannot be taken from them when the UK leaves the EU. Their contention is that: “Once an EU citizen, always an EU citizen” or “civis europeus sum”, to quote the phrase that once implied all the rights and duties of a citizen of ancient Rome.

The Dutch courts are being asked to make a referral to the European Court of Justice on the question of whether EU citizenship can in fact stand in its own right, and a ruling is expected by February.

This is just one example of how British citizens in the EU have been mobilising since the Referendum to voice their concerns and demand clarity on exactly how their status, their present daily lives and their futures will be affected, as a result of losing EU citizenship and the rights which stem from that, including freedom of movement, the right to study, marry, set up a business or retire in the EU.

Of about 1 million British citizens living in the EU, about 65.000 live in Italy. The group British in Italy (BiI) was set up in 2016 after the Referendum vote to represent this community. It is part of the umbrella organisation British in Europe which is lobbying alongside groups representing EU citizens living in the UK, to keep the issue of citizens’ rights in the forefront.

Many of the long-term British community living in the EU had found themselves  excluded from voting in the Referendum by the UK electoral rules, if resident outside the UK for more than 15 years, and therefore had no voice in shaping the biggest constitutional change of a lifetime in the country of their nationality.

Yet they now find themselves on the point of becoming “third country” nationals or to use the less than welcoming label used in Italy to describe non-EU nationals:  “extracomunitari”.

It is common now in public offices or local authorities to be told as the UK is leaving the EU “perhaps this or that rule will not apply anymore.”

Last week in the Agenzia delle Entrate in Trastevere, a British citizen applying to register an inheritance of Italian property was told she had no right to a codice fiscale unless she provided proof of the succession along with certified and translated documents. This is just one of the administrative hoops non-EU members already have to go through.

Another British citizen was told by the Comune di Roma that from January 2017 British citizens would no longer be recognised as EU nationals in Italy and she no longer had a right to a carta di identità. The Comune later admitted a staff member had given the wrong information and this was not Comune policy.

Yet another member of the British in Italy group reported being turned away several times from the Comune of Montalcino when he applied for a permanent residence certificate. He was told only non-EU citizens could apply. This also was accepted later to be incorrect.

It is actually now quite rare to find a Comune in Italy that is not familiar with residence or permanent residence applications by EU nationals and most do now correctly apply the 2004 EU Directìve on Freedom of Movement (adopted in Italy by decreto legislativo n. 30 of 2007). It took over 10 years and many hiccups but now the system works relatively smoothly here. It is worrying that it could take another 10 years or more to implement a tailor-made system for the new breed of British “ex-EU nationals”.

The UK government promised citizens from the start of negotiations that their aim was to enable them to go on living their lives “broadly” in the same way as before. Citizens’ rights was one of the three crucial issues that had to be “progressed” after Article 50 was notified, before the EU would discuss future trade relations.

The EU and the UK published their “Joint Report on Progress in Phase 1” in December 2017. This Joint Report is a framework for the future “Withdrawal Agreement”.

The assessment of British in Europe of the agreement was: “It’s a mixture of good news, bad news and unfinished business, the balance of which is different for each of us, depending on the particular situation that we are in.”

These are the terms of the agreement so far:

  • Citizens who are legally resident will be able to continue to live in the country where they are resident at Brexit.
  • Citizens resident at Brexit will still qualify in the future to apply for permanent residence (the “attestato di soggiorno permanente”), or a similar new right, and the years residing in the EU before Brexit will count towards the necessary 5 years.
  • Those already holding  a  permanent  residence  document  be able to convert it into  a  new  document  free  of charge,  subject to  verification  of  identity, criminality  and  security  checks and confirmation of ongoing legal residence;
  • Reciprocal healthcare rights will continue, including the right for healthcare to be funded by the UK for pensioners covered by the S1 form;
  • UK pensions will be uprated in accordance with inflation and there will be aggregation of social security contributions including pensions before and after Brexit;
  • Certain close family members, dependants and “partners in a durable relationship” will be able to join citizens whose rights are protected under the Withdrawal Agreement, for their whole lifetime;
  • Children born after Brexit will be protected under the Withdrawal Agreement In relation to the right of residence;
  • All citizens will have a period of 2 years after the Withdrawal Date to regularise their status;

On the issue of recognising citizens’ “right to stay”, and how this will work in practice, the Report sets out two possible options. Each member state can choose which option to apply. A key concern here for British citizens in the EU is that because of the principle of reciprocity, as the UK tries to restrict the rights of EU nationals, UK nationals may see their rights curbed in equal measure, unless the EU agree to more favourable treatment.

One of the two options is to maintain the “status quo”. If Italy chooses this, then the present system of residenza or attestato di soggiorno permanente will continue.

The other option proposed is to require citizens to apply for a new residence “status” and be issued with a new form of residence document. This is a reference to “settled status” by which the UK intends to regularise the position of EU citizens in the UK, so in turn EU member states may choose to require this from British citizens. The Report specifies that administrative procedures for applications for status must be transparent, smooth and streamlined and that safeguards to ensure “ a fair procedure” will be written into the Withdrawal Agreement.  This option has been criticised as it is not an automatic recognition of existing rights which may have been exercised freely for many years, it comes at a cost, and will be a bureaucratic obstacle as some people will struggle to find proof that they meet the statutory requirements of ongoing ‘legal residence’.

Another major concern is that continuing freedom of movement for UK citizens in the EU is not mentioned. Those for whom it is vital to be able to move country for work, or to provide services (IT contractors, interpreters, caterers etc) will no longer have these rights. Recognition of qualifications is limited to those people who have specific recognition of their qualification in a particular country.  The agreement does not cover future healthcare arrangements, lawyers practising under home state title or posted workers.

This Report is so far simply a statement of intent.  As “nothing is agreed until everything is agreed, in order to become binding it depends on a comprehensive Withdrawal Agreement being drawn up and sealed within only months from now.

Given the terms in the Report, it would seem sensible for British citizens in the EU to apply to obtain a permanent residence document before Brexit, to avoid the unknowns of a “status” application, should that be required in the country they live.

A second referendum in the UK could still be a possibility which could see the British electorate reject a draft Withdrawal Agreement. As a new Private Member’s bill on Overseas Voting passes the Commons again in February it is possible that British citizens in the EU could have a voice next time. Nonetheless, the waiting seems interminable and has led to a reported eightfold increase in applications by British citizens for Italian nationality.

As for the unfinished business: citizens’ rights groups will continue to lobby for these issues affecting human lives to remain centre stage.

 

 

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