Professor Bernard Ryan considers the right to remain of prior residents after Brexit

As the Prime Minister prepares to give a major speech on Brexit this week, Bernard Ryan, Professor of Migration Law at the University of Leicester, has offered his insights on how an eventual Article 50 agreement might resolve questions over the legal status and the rights to remain of prior residents under EU law.

You can access the 30-page article, published in the latest Journal of Immigration, Asylum and Nationality Law, for free on the Social Science Research Network (SSRN) website here.

The main focus of the article is on the rights of EU citizens resident in the UK (and UK citizens in the EU) as set out in the 2004 Citizens' Rights Directive, with other provisions referred to as they arise.

Professor Ryan first summarises the post-referendum political debate in the UK on the status of EU nationals, before considering how the Brexit negotiations will be structured, and what can be said about the overall negotiating positions of the two sides.

The article then considers the provision in any agreement for 'permanent' and 'extended' rights to remain, and looks at cases where there must be uncertainty concerning the eventual protection for prior residents, namely 'derivative' rights of children and carers, temporary rights of residence, and third-country family members.

The final section of the article considers a series of possible adjustments to the free movement of persons regime in the light of Brexit.

Ryan finds there is consensus to protect persons with pre-Brexit rights of permanent and extended residence, but 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 UK.

The article states: "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."

Professor Ryan concludes: "EU citizenship, and the free movement rights at its core, have justifiably been said to 'embod[y] post-national membership in its most elaborate legal form'. In the context of Brexit, where that privileged status is about to be lost by some who have relied upon it, it is legitimate for the EU-27 and the United Kingdom to seek an international agreement to protect the status of their citizens who are resident in the other. The provision of guarantees through such an international agreement is preferable to the alternative of relying upon domestic public opinion in the states of residence, which is not fixed, and over which foreign nationals generally have limited influence. Viewed in that light, the ongoing uncertainty as to the achievement of an agreement covering pre-Brexit residents, and as to the content of any such agreement, has a deeper significance. What has been revealed is that both the concept of EU citizenship, and the norm of security of residence for long-term residents, are more fragile and negotiable than had previously been thought. Depending on the outcome of the negotiations, these two principles may yet be numbered among the longer-term casualties of Brexit."