British Prime Minister Boris Johnson and members of his cabinet have recently welcomed the Immigration Act, the UK law that ends free movement of people with the European Union. From January 1st 2021, EU citizens will no longer have the automatic right to live and work in the United Kingdom.
Ending free movement of people was one of the flagship policies promoted by the campaign for leaving the EU. The idea was supported by the slogan ‘take back control’ of national borders.
It was a simple and effective message, but reality is more complicated than that, not least because free movement is a two-way street and Britons will also lose the automatic right to live and work in EU countries.
This side of the argument has been ignored in the political debate and has met the silence of British media. It is not surprising that, according to a YouGov survey, only 21% among Brits feel ‘very’ or ‘fairly’ informed about the changes they face when travelling to the EU after the Brexit transition ends, on December 31st 2020.
What will be the consequences for them?
As regards the entry into each other’s territories, the United Kingdom has never been part of the travel-free Schengen Area, so its borders have never been completely open to citizens from other EU states.
On the other hand, as they become non-EU citizens, Britons will now face controls when arriving in the Schengen zone. Unless their status is protected by the EU withdrawal agreement, from next year their passport, purpose of visit and proof of funds will be checked at the border and their visa-free stay will be limited to 90 days in a total of 180 days.
But free movement of people is much more than the ability to travel visa-free in an area without borders checks.
Established by the Treaty of Rome of 1957 in combination with the free movement of goods, capitals and services, free movement of people is a complex legal structure built over decades of legislation and rulings by the European Court of Justice.
This legal framework has removed many of the obstacles associated with moving across borders, a choice made – even just temporarily – by a growing number of people, including Brits. The system is not perfect, as the infringement cases launched by the European Commission against member states show.
But despite the resistance of national governments to make the EU territory a truly common area for their people, the Court of Justice has often made decisions that have expanded citizens’ rights.
An example is the 1992 ruling that granted British citizens the right to return to the UK with non-British family members after a period of residence in the EU, a right not recognized in UK law and that will be disappear again from 2022.
Beyond easy access to the EU territory and the oversight of the EU Court, Britons are about to experience three losses affecting their free movement rights.
The first is about the repeal of EU directives that guarantee the right of residence in EU states and forbid discrimination on grounds of nationality.
These directives ensure equal access to work, education, healthcare and welfare benefits. They grant equal rights to set up business. They also allow social security coordination, so that years of work in an EU country can be accounted for in another for the purpose of unemployment allowances or pension contributions, for instance.
The rights of family members are covered too and separate regulations guarantee that marriages, divorces, parental and maintenance judgments are recognized across EU countries.
From January 1st, British citizens will be outside the scope of such laws.
Some of these rights, for example with regard to social security, might be salvaged by a future EU-UK agreement. Some EU directives, for example on the long-term residence of non-EU nationals, will recover elements of free movement after a period living in the EU. Some bilateral agreements, for example on access to healthcare, might be negotiated by the UK with individual EU states.
But none of these options is as comprehensive as EU law, and the risk is to end up with a different legal framework for British citizens in each EU state, which will make the situation confusing and free movement practically impossible.
The second loss concerns EU citizenship. This will be painful for Brits with a strong European identity who will no longer see ‘European Union’ written on their passports.
It will also mean the loss of political rights, as British citizens will no longer be able to vote and stand as candidates in municipal elections in the EU country where they live, except for the few where alternative arrangements are in place.
In addition, all Brits will be excluded from the election of the European Parliament, a law-making institution that has no equivalent in international bodies or trade agreements.
Since the Brexit referendum many Brits have tried to overcome these losses applying for citizenship in EU countries where dual nationality is allowed. The Court of Justice of the European Union has also been seized to rule on whether Britons can maintain EU citizenship.
But if the EU passport entitles a person to visa-free travel or residence in EU countries, it is not a panacea for all other rights.
The coordination of social benefits, for instance, depends on the affiliation to a social security system in the EU. As a practical example, a British citizen with an EU passport will have the automatic right to work in France, but will not necessarily be able to claim periods of work in the UK for the purpose of French unemployment allowances, should he or she lose that job.
As for the European Parliament, an EU passport may entitle some UK citizens to participate in the ballot, but it will be difficult for UK-based voters to establish a connection with members elected in another country.
The third loss concerns the UK exit from the European single market. This will limit the access to a range of services that support free movement across borders.
A recent example is the decision by several British banks to close the accounts of their customers living in certain EU countries. Once outside the single market, UK banks were requested to comply with different rules in each EU state. These involved applying for domestic licenses or, in some cases, being restricted from providing certain type of services, such as regular or saving accounts.
Unless different arrangements are found, the same will happen for the recognition of professional qualifications. UK doctors, architects or engineers, or anyone in a regulated profession who has qualified in the UK, will also be subject to national rules if moving to an EU country from next year.
Such complications show why EU citizenship, free movement of people, and participation in the single market are so intertwined. They work at their best when combined together. Any other option may allow to maintain some of these rights, but it will soon start to feel for what it is: a plan B.