Negotiating the Right to Remain after Brexit

The United Kingdom’s expected departure from the free movement of persons of regime requires a resolution of the legal status of prior residents under EU law – ie EU-27 citizens in the United Kingdom, British citizens in EU-27 states, and third-country family members. The future status of these groups is covered by the art 50 TEU exit negotiations which commenced on 19 June 2017. This article will consider the provision for ‘rights to remain’ in an eventual art 50 agreement. The article will show that there is consensus to protect persons with pre-Brexit rights of permanent and extended residence. Beyond that, there are many areas of uncertainty, including the treatment of derivative and temporary rights of residence, and of third-country family members of British citizens in the United Kingdom. There are, in addition, several subjects on which differences of view are manifest, such as the post-Brexit sponsorship of family members, exclusion from residence, and guarantees of compliance. The many differences between the EU’s ambition to fully preserve the status quo ante of ‘acquired rights’, and the United Kingdom’s concern to integrate EU-27 residents and their family members into its domestic immigration law system, mean that it is uncertain whether an art 50 agreement will cover rights to remain.