Following three and a half days of Brexit negotiation talks in Brussels, the EU has suggested that without a guarantee from Britain that EU nationals living in the UK will be able to stay (even if they move to another EU country temporarily) then UK nationals living in Europe could face losing the right to live in another EU member state following Brexit.

Approximately 5 million people could be affected by decisions made during the Brexit negotiation process, although officials have stated that citizens’ rights will be the top priority of the negotiation process. It is estimated that there are currently 1.2 million British nationals living in the EU, and should these threats of the EU member states be carried out, it could mean that these British nationals would not be able to relocate to another EU country post-Brexit. The EU made clear it would not move without a mutual offer for European nationals living in Britain that would allow them to move to another EU country and return to the UK should they choose to do so. An example of this was described as allowing a European national who is currently resident in the UK to return to their home country and even if they are not to return to the UK for a few years, they could still resume to do so in the future.

While EU member states have requested this guarantee from the UK, the British government has currently only been able to agree to proposed “settled status” for EU nationals, but this would be lost if a person left the UK for more than two years, unless they could prove they had strong ties.

The negotiations in Brussels’s centred around a discussion on ensuring to maintain and protect citizen’s rights in all aspects that could affect the position of both UK nationals and EU nationals post Brexit, these includes things such as settlement, employment, healthcare to pension rights and education.

Another vital issue that has come to light following these negotiations is the role of the European Court Of Justice (“ECJ”) in these Brexit negotiations. The EU wants the ECJ to resolve any disputes between the two parties when it comes to final decisions that will be made over the rights of the citizens’ that will be affected. The British government has argued that as the UK is no longer part of the EU, that the ECJ’s role will be unwarranted.

The EU has vowed to defend the role of the ECJ in protecting the rights of EU nationals. “This is not a political point we are making, it is a legal one,said the EU’s chief negotiator, Michel Barnier. “Only the court can interpret EU law; it is not a choice, it is an obligation. We want our citizens to be protected by EU law.

The talks on citizens’ rights revealed other divisions and questions, as summarised below:

  • Britain has requested the right to run criminal record checks on all EU nationals that make applications to stay in the UK, these checks will differ to what is currently allowed under EU law, the EU negotiators have requested more details of what these checks will entail before they are able to agree to such an a requirement to exist;
  • Britain has requested that their nationals currently living in EU countries should be able to obtain documents to prove their post-Brexit status, the EU has argued this as being a priority in the negotiation talks, especially seeing as there has been no decision reached on the status of UK and EU nationals alike as part of the exit plan (as discussed above);
  • Britain wants the EU member states to consent to British travellers being entitled to a European health insurance card, that will guarantee free or low-cost state-provided healthcare in Europe. But it remains unclear whether the EU will agree to this as they have not been reported commentary on the issue; and
  • The UK negotiators think that the EU has ignored tens of thousands of “posted workers” who have been sent to the UK on short-term contracts. The EU argues that posted workers should not be part of the Brexit citizens agreement, because they continue to pay national insurance to their home countries, and therefore are not a burden on UK immigration and the post-Brexit system.

The two sides have not been able to finalise any decisions on any of the issues that have been debated and are expected to continue negotiations. British officials have maintained the position that they will not leave EU nationals in a position that would lead them to believe that there has been a new system established, but however, will try to maintain European law where they can during the negotiations as long as it doesn’t prevent their ability to protect UK nationals with the decisions reached. Three more rounds of Brexit talks are scheduled for August, September and October. It is expected by both sides that sufficient progress will be made and deals will be struck as a result of these follow-up talks.