Introduction

An important implication of Brexit is the changing position of UK nationals in the EU-27. Brexit will mean that UK citizens, who are now considered to be EU citizens by virtue of Article 20 TFEU, will become third-country nationals. The Withdrawal Agreement provides for a transition period in which the free movement of persons remains intact. After that period, UK citizens residing in the EU-27 and EU citizens residing in the UK would continue to enjoy the essence of the rights they currently have. However, with the UK Parliament’s rejection of the withdrawal agreement, a ‘hard-Brexit’ on 29 March 2019 seems a possible outcome. What would this mean for the status of UK citizens in the EU?

On 13 November 2018, the European Commission proposed visa-free travel for UK nationals after Brexit. On the position of UK nationals already residing in other member states, the Commission merely called upon the other Member States “to take a generous approach”. On 1 February 2019, the European Council published its proposal for a regulation regulating visa-free travel for UK citizens to the EU after Brexit. In this blog I will outline the proposed regulation on visa-free travel and discuss the residence of UK nationals for periods exceeding 90 days in the EU.

Proposed visa-free travel

EU citizens have the right to move freely to another EU Member State. Article 5 of Directive 2004/38/EC protects the right of entry and states that no entry visa may be imposed on EU citizens. Even though the UK was never party to the Schengen acquis, the fact that the free movement of persons applied meant that the free movement of UK nationals in the EU was guaranteed. Article 6 of the same Directive states that EU citizens have the right of residence in another Member State for a period of up to three months, without any conditions or formalities. Article 3 of the Schengen Border Code exempts beneficiaries of the free movement of persons from any visa requirement.

After Brexit the UK will no longer be a Member State of the EU. Therefore Directive 2004/38/EC will no longer apply. Brexit will transform UK nationals from EU citizens to third-country nationals. Third-country nationals are treated differently to EU citizens, both in terms of entry into the Schengen area and residence in the EU for more than 90 days.

Article 6 Schengen Border Code prescribes that for entry into the Schengen area, for intended stays of no more than 90 days in any 180-day period, third-country nationals are required to be in possession of a valid visa, unless their country of origin is on a list of countries whose nationals are exempted from a visa obligation. The EU decides on which countries are exempted from the visa requirement based on a variety of criteria, such as illegal immigration, public policy and security, economic benefit in particular in terms of tourism and foreign trade and the EU’s external relations with third countries. The proposed regulation of the Council places the UK on that list. If this proposal for a regulation is adopted, this means that UK nationals, being third-country nationals, would be exempted from the requirement of having a visa for an intended stay of no more than 90 days. The proposed regulation also includes a reciprocity mechanism, stating that if the UK introduces a visa requirement for nationals of at least one EU Member State, the EU will trigger the reciprocity mechanism through which a visa requirement can be imposed on UK nationals.

What about residence?

The Schengen Border Code only regulates entry for intended stays of no more than 90 days. The remaining question is how the residence of UK nationals for longer periods is regulated. As EU citizens, UK nationals always derived the right of residence for a period longer than 90 days from Article 7 of Directive 2004/38/EC and, after legal residence for longer than 5 years, EU citizens even have the right of permanent residence in another Member State. However, that Directive only applies to EU citizens. After Brexit, UK nationals will be third-country nationals.

The regulation of the legal status of foreign nationals in EU Member States has been a shared competence between the EU and its Member States since the adoption of the Amsterdam Treaty in 1998. Article 79 TFEU states that the EU is competent to develop a common immigration policy, including measures on the conditions of residence and standards on the issuing of long-term visas and residence permits. The EU has used this competence to harmonise different fields of immigration law, including family reunification, students and researchers, different kinds of workers and long-term residents. Currently, there is no secondary EU legislation governing the residence of third-country nationals from a particular country.

Two groups of UK citizens should be distinguished in this context: UK citizens who currently reside in an EU Member State and UK citizens who currently reside in the UK but who could potentially seek residence in an EU Member State in the future. For the latter group, there are no indications that the current level of harmonisation of the entry and residence of third-country nationals does not suffice. After Brexit, as third-country nationals, UK nationals can make use of (the national implementation of) EU immigration law instruments covering third-country nationals. For the first group, Brexit creates a lot of uncertainty. UK nationals currently residing in EU Member States frankly do not know yet what their status after Brexit will be. In the absence of EU legislation, the residence of UK nationals is a matter of the national immigration laws of the Member States. It is in this context that the call of the European Commission for a ‘generous approach’ must be placed.

A way forward?

From the perspective of the EU-27, the move to propose visa-free travel is a logical step. In the absence of any regulation in this regard, it would be unclear what the status of UK nationals as third-country nationals would be. For efficient border crossing procedures, it must be clear whether UK nationals are required to have a visa to enter the Schengen area. There is also no urgent need to regulate the situation of UK nationals who seek long term residence in the EU-27 post-Brexit, as the current legal framework is already in place. It is the UK nationals that are currently residing in the EU who are faced with uncertainty.

This insecurity cannot be avoided. In the absence of secondary EU legislation, the residence of third-country nationals is the competence of the Member States, except in situations in which UK citizens as third-country nationals qualify for residence based on the current legal framework applying to third-country nationals.

At present, I believe it would not be wise for the EU legislator to create secondary legislation covering the legal protection of UK nationals currently residing in the EU-27. Considering the current structure of the secondary legislation on the residence of third-country nationals, the explicit preferential treatment of certain third-country nationals over other third-country nationals would be new in secondary EU law. I think it is better that secondary EU law is structured based on categories of immigration, rather than on countries of origin. I also wonder whether the prohibition of discrimination on the grounds of nationality, which is a general principle of EU law and explicitly stated in Article 18 TFEU, would even allow for such preferential treatment of UK nationals, compared to third-country nationals from other states.

It would, however, be a logical step to regulate the residence of UK nationals in the EU-27 post-Brexit in primary EU law. In the Withdrawal Agreement, the EU and the UK agreed on a comprehensive legal framework covering the residence of UK nationals in the EU and EU citizens in the UK. The treatment of each other’s citizens is a vital aspect of the negotiations concerning future relations between the EU and the UK. Until an agreement is reached, the European Commission is correct in pointing out that the treatment of UK nationals is a competence of the Member States.