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Brexit citizens’ rights deal near completion


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In the early hours of this morning the British government and European Commission agreed, to much media fanfare, a joint report on Brexit negotiations. The Commission will now recommend to the European Council – the 27 national leaders – that it should sign off on the deal. A conclusion at the Council’s summit next week that the report represents “sufficient progress” on the terms of divorce would allow the Brexit negotiations to proceed to discussions of the future relationship.

The rights of EU citizens in the UK, as well as UK citizens abroad, is one of the main aspects of the deal agreed today. An accompanying joint technical note, earlier versions of which have been analysed on Free Movement, fleshes out some of the details. The parties also cite a third document, on the nuts and bolts of registering for the rights guaranteed by the agreement, which was published last month.

Outstanding points of disagreement before today included family reunion rights and the role played by the Court of Justice of the European Union in overseeing the deal. In both those cases, there has been a compromise.

More generous EU law reunion rights apply to family members so long as they were in the relationship on Brexit day.

The European Commission, though, thinks that future partners should also be covered. There may yet be a row about that.

British courts and tribunals will be able to

ask the CJEU questions of interpretation of those rights where they consider that a CJEU ruling on the question is necessary for the UK court or tribunal to be able to give judgment in a case before it.

The government insists that only two or three cases a year will reach the CJEU this way. This is plausible given that UK references on citizens’ rights issues are only two a year at present, according to research by the Institute for Government.

And, in a sop to Brexiteers obsessed with the Luxembourg court, this referral mechanism will not last forever:

This mechanism should be available for UK courts or tribunals for litigation brought within 8 years from the date of application of the citizens’ rights Part.

Each side will be able to intervene in citizens’ rights cases in the court of the other.

Professor Catherine Barnard says that the combined effect of these provisions is that “the UK’s red line over the Court of Justice (CJEU) has turned pink”. This is in marked contrast to the position a few months ago.

Initial reaction from campaigners to the overall package has been mixed:

This deal, even if agreed by the European Council next week, will still need to be finalised and implemented. There is some way to go yet before it becomes tangible for ordinary citizens, but the parameters of citizens’ rights are now firmly in place and unlikely to change significantly.

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CJ McKinney

CJ McKinney

CJ McKinney is a specialist on immigration law and policy. Formerly the editor of Free Movement, you will find a lot of articles by CJ here on this website! Twitter: @mckinneytweets.