© AFP

Listen to this article

00:00
00:00

Across Europe there are roughly 4m migrants caught out by Brexit, and some are more vulnerable than others. Their rights as EU citizens are about to become a focus of the historic negotiations over Britain’s departure from the bloc.

Theresa May is planning to tell EU leaders at a summit on Thursday of the broad outlines of a “generous” offer for Europeans resident in the UK who now find themselves in a legal limbo.

The UK prime minister could win headlines by reassuring millions of EU citizens they are free to stay in the country.

But there is still a fundamental difference between the two sides: the EU wants all migrants to effectively remain under EU law and protected by EU courts, even when living in Brexit Britain. The British side argues such an outcome — which could give EU nationals more rights than UK citizens — is unacceptable.

When Britain’s detailed position paper emerges next week, it may also reveal other significant policy divides over who is eligible, what rights they retain and the administrative requirements needed to prove it.

Hundreds of thousands of migrants could fall through that gap. Here the FT lists 13 categories of people most at risk of losing rights they enjoy today, among the 3m EU nationals in the UK and 1m British nationals on the continent.

Resident for less than five years

When should a migrant enjoy full national rights of residence? Under EU rules, that kicks in after five years and would cover more than 2m EU migrants in Britain. But hundreds of thousands are potentially ineligible, depending on the cut-off date. Britain is expected to allow them to stay long enough to qualify, but the details matter. The package of rights may differ by then and the migrant’s status may change (for example, by losing their job). Poland is especially worried about the “under five year” residents.

Relatives of EU nationals

One of the most sensitive political issues. Family members of migrants — regardless of nationality — currently enjoy easy access to the countries their EU relatives are living in. Rules are more stringent for non-EU migrants in Britain. Even relatives of UK citizens face visa fees, minimum income thresholds and English tests — all conditions that are waived for the relatives of EU migrants. Mrs May has long wanted a tighter regime for all.

Students becoming workers

The problem for students comes when their status expires. Today they can take up a job once their studies end, or join another course with discounted fees. After Brexit, they may be forced to leave Britain just to apply for a work permit as is the case for non-EU students. The UK could solve this by giving students “settled status” in the UK, with a right to work.

Migrants with incomplete paperwork

Proving eligibility is the big challenge for the 3m. Britain has no ID card and no central register. Residence applications rely on a patchwork of documents, from tax records to utility bills to private health insurance. For many, like the 300,000 self-employed EU migrants in Britain, this may be hard to reconstruct. For others it may be impossible. Few economically inactive migrants — such as students or retirees — knew private health insurance was a condition of their lawful residence (most relied on the NHS). The EU side wants assurances that Britain will not zealously enforce legal small print through lengthy, complex administrative processes

.

Frontier and posted workers

There are many types of EU worker — and not all will be treated the same under Brexit. Posted workers, who pay social security in their home state, are legally temporary service providers, rather than citizens exercising free movement rights. That may put them outside of a Brexit withdrawal deal. There are roughly 40,000 in the UK, and a similar number of Brits around Europe.

Even further outside the system are “frontier workers” in Britain — including up to 30,000 from eastern European and Baltic states — who commute regularly and pay all their tax in their home state. Only a very broad Brexit deal would cover them.

Less wealthy pensioners

Retired migrants potentially face a double squeeze. EU rules have helped pensioners to move within the EU, or to draw a pension earned overseas in their home state. But this has rested on two conditions: the right to draw an indexed pension, and the possibility of charging healthcare costs to the home state.

Non-EU migrants face much tougher income and healthcare terms, including a £25,000 a year income test in Britain. Retired Brits moving abroad — to, say, Australia — are normally ineligible for an indexed pension.

Both Brussels and London want to protect retirees, including the 400,000 Brits living in the EU. But if there is no deal, their privileges may be hit hard.

Spouses from non-EU countries

Some non-EU migrants draw their residence rights from EU partners, or ex-partners. These migrants are vulnerable to being caught in a stricter UK regime, where they would need to prove minimum income or language ability. This may hit UK nationals living in Europe who plan to return to Britain with their spouse after Brexit.

Migrants with criminal records

Non-EU applicants for “leave to remain” in Britain must pass a character test. Recent criminal convictions — even for relatively petty offences with non-custodial sentences — can disqualify migrants from permanent residence. Unless Britain agrees to waive this test, some EU migrants in Britain might find their past catches up with them.

Victims and special circumstances

Legal uncertainty abounds in Brexit, especially for those with unusual circumstances. This includes non-EU parents of children with UK or EU passports, victims of domestic violence who cannot access paperwork from ex-partners, and victims of trafficking or unlawful employers.

Jobseekers and unemployed

There are clear distinctions in EU law that limit the rights of jobseekers and the unemployed. Depending on circumstances, their right to stay in the country may only last for three to six months. There are currently around 100,000 unemployed EU migrants in Britain, and tens of thousands of Brits on the continent. Today they are rarely deported, even after overstaying. That may change after Brexit.

Benefit claimants living overseas

Over the past decade, EU migrants have claimed child benefit in Britain to support up to 40,000 children living outside the UK. Successive Conservative governments have tried to curb this, with former premier David Cameron making it one of the key demands in his pre-referendum renegotiation in 2015. These rights to export benefits are some of the most contentious in Brexit talks.

Children and the unborn

Any Brexit deal may set a cut-off date, or be limited to people who exist. That might affect whether a teenager is eligible for discounted student fees three or 10 years from now. And it may mean a child born to EU migrants in Britain in 2022 has different rights from a sibling born in 2018.

There are ways to resolve this. But it raises a central problem in talks: will there be a guarantee against EU or UK nationals being disadvantaged in future as laws evolve?

Don’t forget the Liechtensteiners

Some non-EU countries also enjoy special citizenship rights in Britain that are endangered by Brexit. Members of the European Economic Area — Norway, Switzerland and Liechtenstein — would need to separately agree protections for their citizens with Britain. Switzerland also has EU-like arrangements that would need to be renegotiated.

Copyright The Financial Times Limited 2017. All rights reserved.
myFT

Follow the topics mentioned in this article

Follow the authors of this article