Authored BY: Rashid Mehmood
university of central lancashire, UK
The United Kingdom’s withdrawal from the European Union (Brexit) has resulted in significant legal challenges for both EU and UK citizens. This article examines the legal implications of Brexit on immigration rights, residency status, workers’ rights, and the right to travel. It explores key agreements such as the EU-UK Trade and Cooperation Agreement (TCA), the Withdrawal Agreement, and relevant domestic legislation. The discussion also highlights ongoing legal uncertainties, including family reunification and cross-border recognition of qualifications. The article concludes with an analysis of the broader legal and social consequences of Brexit for EU-UK relations.
Introduction
Brexit formally took effect on 31 January 2020, ending the UK’s membership in the EU. The transition period concluded on 31 December 2020, leading to new legal arrangements that significantly impacted EU and UK citizens. Key agreements such as the Withdrawal Agreement and the EU-UK Trade and Cooperation Agreement (TCA) outline post-Brexit legal frameworks. However, the practical application of these agreements has resulted in legal uncertainties regarding residency, employment, and mobility rights.
This article analyzes the key legal challenges EU and UK citizens face post-Brexit. It examines how changes in immigration law, workers’ rights, and legal protections have reshaped the rights of individuals. The discussion also explores unresolved legal issues and their implications for the future of EU-UK relations.
Background
Before Brexit, EU citizens had the right to live, work, and travel freely within the UK under EU freedom of movement rules. Likewise, UK citizens enjoyed similar rights in the EU. Brexit ended this arrangement, replacing it with new rules based on national immigration laws and international agreements.
The Withdrawal Agreement provides some protections for EU citizens already residing in the UK before the end of the transition period. The EU Settlement Scheme (EUSS) was introduced to grant them either pre-settled or settled status. Similarly, UK citizens residing in EU countries had to secure residency under individual EU member states’ national laws.
However, legal uncertainties remain regarding family reunification, cross-border workers, recognition of professional qualifications, and access to social security benefits.
Legal Issues for EU Citizens in the UK 1. Immigration and Residency Rights
The UK replaced free movement rights with a points-based immigration system, making it more difficult for EU citizens to enter and stay in the UK. The key legal provisions include:
EU Settlement Scheme (EUSS): EU citizens who arrived before 31 December 2020 could apply for settled or pre-settled status under the Immigration Rules, Appendix EU.
Visa Requirements: New EU arrivals must meet the UK’s visa criteria, including skilled worker visas, student visas, and family visas.
Right to Work Checks: Employers are required to verify an EU citizen’s immigration status, which may create difficulties for those with pre-settled status.
A key legal issue is the uncertainty surrounding pre-settled status holders. The UK government initially stated that pre-settled status would expire if individuals failed to reapply for settled status, leading to concerns about potential loss of legal residency【Case C-709/20 CG v The Department for Communities in Northern Ireland (ECJ, 15 July 2021)】.
Family Reunification and Citizenship
Brexit has created barriers for EU citizens bringing family members to the UK. Under the Withdrawal Agreement:
Family reunification rights apply only to existing relationships before 31 December 2020.
New family members must apply under UK immigration rules, which are more restrictive.
The right to naturalization has become more complex due to stricter residency requirements【Nationality and Borders Act 2022】.
Cases have emerged where EU citizens with pre-settled status have struggled to reunite with nonEU family members, leading to legal challenges against the UK Home Office【R (Independent Monitoring Authority) v Secretary of State for the Home Department [2022] EWHC 3274 (Admin)】.
Social Security and Benefits
The UK-EU Social Security Coordination Protocol governs access to pensions, healthcare, and social security benefits. However, post-Brexit legal issues include: (a) Difficulties in proving residency history for benefit claims.
Loss of some entitlements under UK domestic law.
Barriers to reciprocal healthcare arrangements for EU nationals in the UK【Case C-135/19 GA v Minister for Justice and Equality (ECJ, 2020)】.
These challenges have led to legal disputes, particularly for EU citizens denied Universal Credit due to the UK’s “habitual residence” test【R (Fratila and Tanase) v Secretary of State for Work and Pensions [2021] UKSC 53】.
Legal Issues for UK Citizens in the EU 1. Residency Rights in EU Member States
UK citizens living in the EU before Brexit retained some rights under the Withdrawal Agreement. However:
Residency rules vary by country (e.g., France required UK citizens to apply for a residency permit, while Spain had automatic registration).
Lack of awareness and administrative barriers led to some UK citizens losing legal status.
Future mobility restrictions prevent UK citizens from freely moving between EU states【Council Directive 2004/38/EC】.
Many UK citizens have faced difficulties proving their legal status due to inconsistent application of the Withdrawal Agreement across different EU countries.
Work and Business Challenges
UK citizens lost the right to work and provide services in the EU without work permits. Key legal consequences include:
Visa requirements for UK workers in EU countries.
Restrictions on cross-border service providers, affecting professionals like lawyers and consultants.
Loss of mutual recognition of qualifications, making it harder for UK professionals to work in the EU【Regulation (EU) 2018/1724 on the Recognition of Professional Qualifications】.
The lack of a comprehensive UK-EU agreement on professional qualifications has led to legal disputes in sectors such as law, finance, and healthcare.
Right to Travel and Second Homes
UK citizens are now treated as third-country nationals in the EU, which means:
They can stay only 90 days in any 180-day period without a visa【Regulation (EU) 2019/592】.
Some EU countries, like Spain and Portugal, have imposed additional residency requirements for UK second-home owners.
Border checks have increased travel friction.
Legal uncertainties persist around long-term stays, property ownership rights, and access to healthcare.
Discussion: Unresolved Legal Issues and Future Implications
Despite the legal frameworks set by the Withdrawal Agreement and the TCA, key legal challenges remain:
Legal Enforcement and Disputes
There have been multiple legal cases challenging the UK government’s handling of the EU Settlement Scheme.
UK citizens in EU countries have also taken legal action over loss of residency rights【Case C-709/20 CG v The Department for Communities in Northern Ireland】.
Recognition of Professional Qualifications
(a)The lack of a comprehensive agreement on qualification recognition continues to create legal uncertainty for UK professionals working in the EU.
Future Legal Relations Between the UK and EU
(a)Further negotiations may be needed to address unresolved legal issues, including social security rights and visa-free movement for certain professionals.
Conclusion
Brexit has fundamentally altered the legal landscape for both EU citizens in the UK and UK citizens in the EU. The EU Settlement Scheme, Withdrawal Agreement, and Trade and Cooperation Agreement provide some protections, but numerous legal uncertainties remain.
As the UK and EU navigate their new legal relationship, further negotiations and legal challenges will likely shape the future of cross-border rights. Resolving these issues is essential to ensuring fair and stable legal protections for both EU and UK citizens post-Brexit.
Reference (S)
1.Withdrawal Agreement 2020.
2.EU-UK Trade and Cooperation Agreement 2021.
3.Nationality and Borders Act 2022.
4.R (Fratila and Tanase) v Secretary of State for Work and Pensions [2021] UKSC 53.
5.Case C-709/20 CG v The Department for Communities in Northern Ireland (ECJ, 15 July 2021).
6.Regulation (EU) 2018/1724 on the Recognition of Professional Qualifications.
7.Immigration Rules, Appendix EU.
