Brexit and the end of free movement | Northern Europe | bpb.de

One of four central pillars of the European Union is the Free Movement of Capital and People. These provisions in EU law mean that those with citizenship of an EU member state can move freely within the EU for the purposes of tourism and residence without being subject to immigration controls. Although the right to free movement is conditional, it means that there are far fewer controls on the entry and settlement of EU citizens who cross international borders within the EU than there are for third country nationals who are always subject to immigration controls. Those who take up the opportunity for free movement are referred to as ‘mobile citizens’.

In June 2016, in a national referendum on their future membership of the EU, a small majority of British citizens voted for the UK to leave the EU. At that time, it was estimated that over three million EU/EEA citizens were living in the UK and 1.3 million British citizens were living outside of the UK in one of the other 27 member states. For many EU nationals in the UK and British citizens in the EU, Brexit was experienced as unsettling, for the former leading them to question whether they were welcome and belonged in the UK.

On 31 December 2020, the UK finally left the EU. Brexit has meant that EU legislation vis-a-vis free movement no longer applies to EU nationals in the UK and UK nationals in the EU/EEA. For those who had already exercised freedom of movement, provisions about their future status were at the heart of the first phase of the negotiations in the aftermath of the referendum. The intention behind this was to exempt those lawfully resident as EU mobile citizens before Brexit from immigration controls. The commitment from the UK and EU was to the continuation of lives of these populations on equivalent or similar terms. However, this required new legal mechanisms to secure the previous rights and entitlements these free movers had enjoyed. The resulting citizens’ rights provisions included in the Brexit withdrawal agreement outlined a new status for this group. Individual member states were tasked with implementing these provisions for their resident populations.

What has Brexit meant for EU nationals residing in the UK?

Before Brexit, the UK did not operate a registration system for EU citizens. In order to implement the citizens’ rights provisions, in this way granting a new post-Brexit legal status to the estimated three million EU nationals living in the UK, the British Government introduced the EU Settlement Scheme (EUSS).

Applying for a new status was for many EU nationals living in the UK an unsettling experience that brought the UK’s borders into their lives, often for the first time. The success of this application was linked to whether people could evidence their lawful residence in the UK. Not everyone could provide or had access to the required evidence. For example, it became clear that demonstrating lawful residence was harder for those women who had not worked outside the home where proof of employment might have demonstrated their lawful residence, let alone for those escaping domestic abuse. Rolling the settlement scheme out as an online-only application left those without access to technology or the Internet—including for example, the elderly, Roma, and those with mental incapacity among others—vulnerable to finding themselves without status and vulnerable to deportation. These are just a few brief examples that signal the uneven outcomes of this process.

Further, the UK Government decided to use the EUSS as a test case for digital and online-only status—which they intend to roll out across immigration statuses as part of their plans to fully digitise the UK border—supplanting a physical document or passport stamp attesting to their right to residence in the UK. However, the media regularly report about EU nationals who, despite having applied successfully for digital status, have found themselves denied entry to the UK because the system they have to access to confirm their status has produced incorrect information. This has led to a pervasive insecurity about their legal status among this population, demonstrating how even for those best placed to secure their status, the UK’s borders are interfering with their everyday lives and make rebordering tangible.

From the Brexit referendum onwards many EU nationals have found themselves questioning whether they are welcome in the UK. Brexit has fundamentally—and negatively—changed their feelings about the UK. Many have left, repatriating or moving on where opportunities allow but for those who have stayed, questions of belonging remain.

What has Brexit meant for UK nationals living in the EU?

For UK nationals who had made their homes and lives elsewhere in the EU/EEA, things were a little more complex. Responsibility for implementing the citizens’ rights provisions was devolved to each member state. How they chose to implement this very much depended on the extent to which they had regulated and monitored free movement prior to Brexit. For example, in Germany where there were robust systems for registration of EU free movers and third country nationals alike, a so-called declaratory system was adopted. This granted residence rights automatically to British citizens who were lawfully resident. However, other countries—including France, home to the second largest number of British citizens in the EU—decided to adopt a so-called constitutive system. It required resident British citizens to formally apply for a new residence status.

With the process implementation not common across the bloc, experiences of those going through this varied significantly. For those in constitutive systems, judgements over whether they were lawfully resident—whether they, at that point in time could prove that their residence met the conditional terms of free movement—could lead to them being denied residence status and being asked to leave their country of residence. In some cases, including in those countries operating a declaratory system for implementing citizens’ rights, delays in issuing new residence cards to British citizens led to problems exiting and entering the country of residence, demonstrating the right to work and housing, access health care and other social entitlements for themselves and family members. This shows that the changes to their status have, in various ways, brought the migration regime in their country of residence into their lives.

But it also brought the borders within the EU into their lives in new ways. While the Brexit negotiations secured the rights of mobile UK citizens to live and work in the EU country in which they were resident at the time of Brexit, they did not permit onward free movement or in the case of those who worked across borders any provision to support this.

British citizens living in the EU are no longer EU citizens with the right to free movement. Among this population, many feel strongly about this removal of citizenship and the related rights. Many of them feel let down by their own Government, with consequence for how they feel about the UK. They stress that they are Europeans, despite what their passports say. Where dual nationality is permitted, Brexit has also led to significantly higher numbers of British residents taking the opportunity to become nationals and, in this way, regain their status as EU citizens.

Conclusion

Since Brexit, those moving between the UK and EU member states are subject to domestic immigration controls in their destinations. But for those who had already taken the opportunities for free movement prior to the UK’s withdrawal from the EU, the process of rebordering brought about through Brexit has been felt not only in the legal transformation of their rights and status, but also in their sense of identity and belonging.