The European Commission has published details of its negotiating position in relation to the rights of EU citizens following Brexit.

In its working paper “Essential Principles on Citizens’ Rights”, the European Commission has set out a number of stated aims, designed to protect the rights of everyone who has exercised their right to free movement under EU law. This includes protecting the rights of EU citizens living in the UK at the date of withdrawal, and the rights of UK citizens living in the EU, as well as those who have previously exercised their rights to live in another state but might not be doing so on the date of withdrawal. 

The Commission also wishes to achieve the following in its negotiations with the UK:

  • the right to acquire permanent residence after living in a country continuously for five years, no matter how many years prior to the withdrawal date the person had been living in that country.
  • the right of “current and future family members” to join the person that has exercised their right to free movement, at any point after the date of withdrawal.
  • the protection of recognised professional qualifications which were either obtained or recognised in any member state prior to withdrawal.

The Commission believes that these rights, and the derived rights of family members, should be protected for life. For example, if the right-holder dies, the family member would continue to have derived rights.

Acknowledging that some EU and UK citizens who are exercising their right to free movement currently have difficulty in obtaining a residence document, the Commission has stated that anyone residing legally in another EU state at the date of withdrawal should be considered legally resident without such documentation, but that they should be able to acquire such a document either free of charge or for a nominal fee only. 

The Commission has also highlighted the importance of preserving social security arrangements where these have been acquired in different EU states. In terms of dispute resolution, the Commission’s view is that the protection of the citizens’ rights should be subject to the Commission’s monitoring power and the Court of Justice of the EU’s jurisdiction. 

The working paper has been condemned as “aggressive” by Theresa May, and the suggestion that the ECJ would have continued jurisdiction over the UK has been repeatedly rejected. However, in conjunction with a second paper entitled “Essential Principles on Financial Settlement” also published by the Commission, this shows the EU is willing to make some tough demands.