I was delighted to see so many British nationals attend the meeting on Brexit and Citizens’ Rights that we organised, together with BRILL (British Immigrants Living in Luxembourg) at ISL last week. I thought it might be helpful if I followed this up with an article setting out what the British Government and the EU Commission agreed in their Joint Report of 8 December last year, in respect of citizens’ rights, and what issues remain, for the time being, unresolved.
The agreement on citizens’ rights is a reciprocal one, meaning that rights guaranteed for Luxembourgers and other EU citizens in the UK are also guaranteed for British nationals living in Luxembourg.
First and foremost is the right for British nationals currently living here to continue to do so. Those British nationals who have lived here for 5 years at the time of our exit will have the right of permanent residence, just as they do now. Those who will have lived here less than 5 years will be able to stay until they have been here 5 years and can then obtain permanent residence. Unlike now however, when the right to permanent residence expires after two years absence, British nationals will be able to leave Luxembourg for up to 5 years and retain the right of permanent residence here.
In short, therefore, any British national currently living here can continue to do so.
Second, any British national living in Luxembourg has the right to work here, whether or not they are employed at the time of our exit. That right to work in Luxembourg also extends to those who, at the time of our exit, are working in Luxembourg, but living in neighbouring countries, and who qualify as frontier workers. There is a technical definition of frontier workers but basically anyone commuting across the border to their usual place of work--for example someone who lives in Arlon and works for a bank in Kirchberg--will be covered.
A host of other rights
With residency come a host of other rights, which are guaranteed under the deal. So, after our exit British nationals will continue to have access to health services in Luxembourg, as they do now. They will have access to education in Luxembourg, as at present. They will also have the right to bring existing family members to live with them in Luxembourg, e.g. an elderly parent, on the same terms as now. And while it is not necessarily the case in all member states, British nationals in Luxembourg will retain the right to vote in local elections, as that is not a right limited to EU citizens.
Naturally people want to know what our exit means for their pension and their rights to social security. We have agreed to aggregate social security contributions, for contributions made before and after exit, which means you can have confidence you will be able to access key benefits, such as your pension. We have also committed to continue to uprate the UK state pension to the EU.
Those wanting to see the detail of what was agreed can refer to the “Joint technical note on the comparison of the EU-UK positions on citizens’ rights” of 8 December available on gov.uk
While the agreement provides certainty in all these areas it is true that uncertainty remains as to whether some other rights, currently enjoyed by British nationals living in Luxembourg, will be guaranteed. These outstanding rights are largely linked to freedom of movement, for which there is no direct equivalence for EU citizens in the UK, and therefore cannot be agreed on the basis of reciprocity. These rights include the right of onward movement, e.g. if a British national living in Luxembourg wanted to move to France to live or work there. As matters stand, after our exit a British national would still be able to do this but on the same terms as a third country national (e.g. a Canadian) rather than those of an EU citizen.
Professional services across borders
Other unresolved rights include the right to provide professional services across borders (except as a frontier worker), which could affect the ability of a small number of British nationals, particularly the self-employed, to earn their living as they do now. As matters stand English lawyers in Luxembourg will also not be able to practise under home title. And mutual recognition of professional qualifications is guaranteed only in respect of recognition decisions already taken in the host state or (in the case of frontier workers) the state of work and does not apply freely across the EU 27 for British nationals covered by the withdrawal agreement.
The British government pushed for all these rights to be guaranteed as part of the deal agreed. But the Commission argued that it did not have a mandate to discuss them and insisted that they could only be addressed in the second phase of the negotiations. We haven’t reached the end of the road on these issues and the government will be pressing for these rights to also be guaranteed.
One other unknown, which I know many of you would welcome early clarity on, is the future fee basis for British nationals, not ordinarily resident in the UK, who want to study at a British university. We hope to provide guidance on this well before applications for academic year 2019/20 open.
Finally, I should note that we are currently negotiating an implementation period with the Commission, lasting, we have suggested, about two years (i.e. to around March 2021). We hope and expect this will be agreed at the 22-23 March European Council. If so, British nationals living in Luxembourg, as well as EU citizens in the UK, will continue to have the right of freedom of movement across the EU27 and the UK until the end of the implementation period.
An article of this kind cannot hope to explain all the complexities of the issue or cover every individual’s personal circumstances. But I hope nonetheless it is helpful in clarifying some of the areas where certainty already exists, and where the situation will clarify in the next phase of the negotiations.