Territorial disputes: Brexit (14) [Post 214]

The posts this week center the attention on European Union law and one of the four fundamental freedoms all European Union citizens have: free movement of persons. In particular, the posts presented European Union treaty law (arts. 18, 20-24 TFEU) and a few decisions by the European Court of Justice. Both the treaty articles and the judicial decisions are key in understanding the implications that Brexit will introduce.

Free movement of persons before Brexit

It should be clear to the reader now that the civil, political and socio-economic rights laid down in arts. 21-24 TFEU are limited. However, the European Court of Justice has been able to interpret European Union treaty law in a more generous manner.

On the one hand, from decisions such as Baumbast, it appears that the right to free movement under art. 21 TFEU does not constitute a truly independent right to free movement decoupled from economic status. On the other hand, the ECJ has been able to “extend” the right to equality with decisions in Martinez Sala and Grzelczyk. It is true the decisions in later cases such as Collins and Bidar narrowed the effect of previous decisions and enabled Member States to require fulfilment of residence period before successful claim to show sufficient link to territory. 

Indeed, the rights that have to do with European Union citizenship are limited. Arguably, The ECJ has been able to interpret the right to equal treatment (or non-discrimination) more broadly. Time will tell whether the integration will be a reality and this and other civil, political and socio-economic rights are fully fleshed for European Union citizens. In any case, the United Kingdom will give up these rights in the weeks to come when Brexit finally will be a reality.

Free movement of persons after Brexit

The legal situation would change after Brexit for any British national who wanted to move and reside in any Member State part of the European Union or any European Union citizen who hoped to move and reside in the United Kingdom. Indeed, this is an issue that the representatives on both sides of the negotiations have yet to agree about. 

As things stand, Brexit without a deal would imply that any individual moving to and from the United Kingdom from or to any of the European Union Member States would be considered legally as any other third country national and therein, would not have the right to free movement and residence.

EU citizens living in the UK

For individuals who are European Union citizens already residing in the United Kingdom, they are able to apply to the EU Settlement Scheme to continue living in the UK after 30 June 2021. If the application is successful, they will get either settled or pre-settled status.

More detailed information about settled and pre-settled status of EU citizens and their families following the link below:

Link to the complete publication

UK nationals living in the EU 

For United Kingdom nationals currently living in the European Union, if there is a deal, during the Implementation Period (30 March 2019 to 31 December 2020), free movement rights will continue to apply to you as a UK national. This means that you will be able to live in an EU country.The situation remains unclear in case of no deal. Continuing to live in an European Union country after the United Kingdom has left the European Union depends on the European Union and its Member States.

More detailed information about UK citizens living in the European Union following the link below:

Link to the complete publication

The following posts will introduce free movement of persons with focus on workers and the highly controversial issue of benefits (often used by Brexiters in their campaign).

Thursday 28th February 2019 

Jorge Emilio Núñez

Twitter: @London1701


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