Free movement of people, healthcare, social security and pensions

A significant number of ‘citizens’ rights’ will be affected by Brexit. The primary one is the free movement of persons’ rights, whereby currently any EU national can work in, live in or provide services in any EU Member State, providing they meet the conditions set out in the EU Treaties and Directive 2004/38/EC (the ‘Citizenship Directive’). These primary ‘residency’ rights are complemented by a variety of further rights, co-ordinating social security coverage for mobile EU nationals and enabling them to access healthcare, education and so on.

This section will address the primary ‘residency’ rights and how they would be affected by a ‘no deal’ Brexit. Secondary rights stemming from the primary free movement of persons rights are discussed in the subsequent sections. The following sections look at three situations for EU nationals living in the UK:

• Residence prior to 29 March 2019 (postponed to 31 January 2020, with a transitional period to effective withdrawal on 31 December 2020);
• Residence between 30 March 2019 and the new immigration system (implementation date to be confirmed); and
• Residence under the new immigration system.

This briefing will then look at UK nationals living in the EU27 and the impact of no-deal on their residency rights.

EU nationals living in the UK prior to 29 March 2019 (postponed to 31 January 2020, with a transitional period to effective withdrawal on 31 December 2020)

In the event of a no-deal the UK Government has committed to extending the settled status scheme to eligible EU nationals living in the UK prior to the 29 March 2019 (postponed to 31 January 2020, with a transitional period to effective withdrawal on 31 December 2020).310 The rights afforded to EU nationals under no-deal settled status will follow an ‘approach based on the Withdrawal Agreement’.311

This means that for the most part the rights of EU nationals living in the EU prior to Brexit will be the same regardless of the type of Brexit. As Professor Steve Peers comments, the no-deal settled status protections ‘would not be an international law obligation, so the UK government would be free to change the details at some later date,’ although he notes that the government does not currently intend to do so.312

However, there are some notable differences between settled status under a no-deal as compared to settled status under the Withdrawal Agreement:

310 See, e.g. The Department for Exiting the European Union, ‘Citizens’ rights – EU citizens in the UK and UK nationals in the EU’ policy paper, published 6 December 2018

311 The Department for Exiting the European Union, ‘Citizens’ rights – EU citizens in the UK and UK nationals in the EU’ policy paper, published 6 December 2018, 4.

312 ‘Staring into the Abyss: citizens’ rights after a no deal brexit’, Professor Steve Peers EU Law Analysis, 6 December 2018

 

• Settled status will only be available for EU citizens and eligible family members resident in the UK prior to 29 March 2019 (postponed to 31 January 2020, with a transitional period to effective withdrawal on 31 December 2020). Under the Withdrawal Agreement’s transition period, EU citizens and eligible family members who would arrive during the transition period would also be eligible for settled status. This means that the cut-off ‘residency date’ for settled status is much sooner in a no-deal;
• Reduced family reunion rights for EU nationals with settled status under a no deal; and
• Reduced appeal rights for refused settled status applicants

The EU Treaties themselves will no longer be binding on the UK at this time, but domestic legislation that refers to these Treaties will nonetheless be legally valid unless repealed.

Originally, as set out in the Home Office’s statement of intent on ‘settled status’, EU nationals exercising Treaty rights would be entitled to a temporary or permanent status document and will continue to qualify for those documents providing they meet the three conditions necessary under the proposed ‘settled status’ legislation:

• identity: they hold an EU nationality (or are a qualifying family member of an EU national);
• eligibility: they are resident in the UK as ‘eligible’ (meaning Treaty-rights exercising) EU nationals; and
• suitability: they pass a criminality check.

However, the Government has been clear that EU nationals will not need to show that they have been exercising their Treaty rights to be eligible for settled status.313 This is the case regardless of whether a deal is made. As such, EU citizens will need to show the following when applying for settled status:

• identity: they hold an EU nationality (or are a qualifying family member of an EU national);
• eligibility: they have been continuously resident in the UK for at least 6 months in any 12-month period for 5 years in a row for settled status – those who have been resident for less time may be eligible for pre-settled status; and
• suitability: they pass a criminality check.

The ‘settled status’ statement of intent makes clear that the status entitles qualifying EU nationals and their family members to “the same access as they currently do to healthcare, pensions and other benefits in the UK”. This means in practice that access to all domestic public services that EU nationals can currently access if resident in the UK will continue.

EU nationals coming to the UK after 29 March 2019 (postponed to 31 January 2020, with a transitional period to effective withdrawal on 31 December 2020)

The Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 (the “Immigration Bill”) received its Second Reading on 28 January and has passed into Committee stage. The Bill would repeal free movement

313 See, for example, PQ 191401 on Immigrants: EU nationals, 19 November 2018

EU nationals will not be required to show they were exercising ‘Treaty rights’ in the UK under EU law to apply for settled status and other related rights derived from the EU, which have become part of UK legislation. This means it would bring EU citizens living in the UK under domestic immigration law.

On the same day, the Secretary of State for the Home Office, Sajid Javid, announced a new ‘European temporary leave to remain in the UK’ as part of the Government’s no-deal Brexit planning.

The Government plans to implement the Immigration Bill and end free movement from 30 March 2019 in the event of a no-deal Brexit.314 This means that for the most part, EU citizens and their family members who come to the UK from 30 March 2019 will require immigration permission to enter the UK.315 The Government and the Home Office will need rules in place to grant immigration leave to enter and remain to EU citizens.

However, the Government has stated that the new immigration rules, as set out in the White Paper, will ‘take some time to implement’.316 This means there will be a gap in immigration law and policy between the end of free movement and the implementation of the new immigration rules for EU citizens. To fill this gap, the Home Office has announced it will implement the new ‘European Temporary Leave to Remain in the UK,’ subject to parliamentary approval.317

The main features of European Temporary Leave to Remain

EU nationals (including EFTA nationals) will be able to enter the UK as they do now (i.e. without the need for a visa/immigration permission) for a period of up to three months. During this time EU citizens will have the right to work and study in the UK.

EU citizens who wish to remain in the UK for more than the initial three months will need to apply for ‘European Temporary Leave’. The Home Office has explained that this will be done through an online application where the applicant will need to prove their identity and declare any criminal convictions.318 This appears to be similar to the application process for settled status.

European Temporary Leave will allow the holder to remain in the UK for 36 months from the date of their application. EU citizens with this type of leave will have the right to work and study in the UK. It will be temporary and cannot be extended, nor will it lead to settlement in the UK. Holders of this type of leave would be required to apply for further leave to remain under the UK’s new immigration rules when implemented in the future. As

314 See Home Office policy paper Immigration from 30 March 2019 if there is no deal, published 28 January 2019.

315 There are some exceptions to this, for example, for family reunion for eligible EU and non-EEA nations of EU nationals with settled status.

316 Home Office policy paper Immigration from 30 March 2019 if there is no deal, 28 January 2019

317 Home Office guidance ‘European temporary leave to remain in the UK’ published 28 January 2019

318 Home Office guidance, ibid

the Home Office explains: “there may be some who do not qualify under the new arrangements and who will need to leave the UK when their leave expires.”

319

There will be an application fee and family permits will be required for non-EEA ‘close family members’.320

The Home Office explains in further detail:

European Temporary Leave to Remain will allow EEA citizens arriving in the UK after 29 March 2019 (postponed to 31 January 2020, with a transitional period to effective withdrawal on 31 December 2020) to live, work and study in the UK if there’s no Brexit deal.

EEA citizens who are granted European Temporary Leave to Remain will be able to stay in the UK for 36 months from the date of their application. European Temporary Leave to Remain will be a temporary, non-extendable immigration status. It will not give indefinite leave to remain (ILR), lead to status under the EU Settlement Scheme or make EEA citizens eligible to stay in the UK indefinitely.

If EEA citizens want to stay in the UK for more than 36 months, they will need to apply for an immigration status under the new immigration system, which will come into effect from 1 January 2021. Those who do not qualify will need to leave the UK when their European Temporary Leave to Remain expires.321

Those who don’t need to apply

The following people will not be required to apply for European temporary leave:

• EU citizens and their family members with settled or pre-settled status
• EU and non-EEA citizens eligible for family reunion with an EU settled status holder
• Irish citizens

Those who are a “serious or persistent criminal or a threat to national security” will not be eligible and the UK’s deportation threshold will apply. 322

EU citizens can enter the UK with either their passport or a valid nationality identity card.

The Home Office explains that employers and landlords conducting right to work and rent checks for EU citizens will not be required ‘to start distinguishing between EU citizens who were resident before exit and post-

319 Home Office policy paper ‘Immigration from 30 March 2019 if there is no deal’ published 28 January 2019

320 Home Office guidance ‘European temporary leave to remain in the UK’ published 28 January 2019

321 Ibid

322 Ibid

exit arrivals.’

323 Until 2021, EU citizens can continue to rely on their passports or national identity cards.

EU nationals coming to the UK under the future immigration system

On 19 December 2018 the Home Secretary set out the Government’s detailed proposals for “The UK’s future skills-based immigration system.”324 There will be a year-long consultation on the proposals.

By making provision to repeal free movement in the UK, the Immigration Bill sets up the legal framework for the Government to implement immigration rules for EU citizens.

The overview of the White Paper states:

As the UK leaves the European Union (EU) and we bring free movement to an end, different rules to the current ones must apply to migration here by EU citizens. We will take full control of migration by bringing all of it under UK law and institute a new border and immigration system, to serve the UK public and the economy, and to enable those who come to the UK to integrate and make a positive contribution. 325

The Government is proposing a single, unified immigration system to apply to everyone who wants to come to the UK after Brexit. The system will be based on the current immigration rules for non-EU nationals, with many changes. The Government’s position is that the focus of the immigration system should be on skill and talent to ensure the UK “welcomes talent from every corner of the globe and demonstrates the United Kingdom is open for business.”326

UK nationals in the EU

The legal situation of UK nationals resident in one of the EU27 Member States at the time of UK withdrawal is much less certain. They are intended to be covered by the WA, and this will preserve a significant number of citizens’ rights. The WA, if concluded, will produce a single regime that all Member States will apply to EU nationals, meaning the rights of UK nationals living in the EU will be secured.

The legislation in each of the EU27 currently gives UK nationals rights to reside purely on the basis that they are nationals of an EU Member State. They do not have specific rights to reside as UK nationals, much as (for instance) German nationals do not have specific rights to reside in the UK under the Immigration (EEA) Regulations 2017. However, while EU27 nationals will still be ‘Member State nationals’ for the purposes of UK domestic laws following Brexit, UK nationals will no longer be ‘Member State nationals’ for the EU27.

323 Home Office policy paper Immigration from 30 March 2019 if there is no deal published 28 January 2019

324 HM Government, ‘The UK’s future skills-based immigration system’, December 2018

325 Ibid

326 Ibid, foreword by the Home Secretary

 

If there is no WA, the basis on which UK nationals would have a right to reside in the EU27 State they currently live in would abruptly change on 30 March 2019. The Commons Exiting the EU Committee published a report on the rights of UK and EU nationals on 23 July 2018, which commented on this specifically:

If there is no agreement on ongoing free movement after the transition period ends, then the rights of UK citizens currently resident in the EU may be determined by EU rules on third country nationals (rules that apply to nationals of non-EU member states). Jane Golding, British in Europe, said there are different pieces of legislation that apply to third country nationals:

‘The conditions are far more stringent and in no way compare with being an EU citizen, and there is no right of free movement. There is a limited form of mobility. Then there are very big holes in this third-country national regime as far as self-employed people are concerned. There are a number of pieces of legislation that cover employees, but far fewer for self-employed people who are providing cross-border services. There are very big holes there.’

The Committee called on the EU27 to make a similar guarantee to that made by the UK Prime Minister, even in the event of ‘no deal’.

The UK Government also called on the EU27 to “uphold their commitments to citizens and to protect the rights of UK nationals in the event of a ‘no deal’ scenario.”327 The policy paper goes on to explain:

The UK continues to call on the EU and Member States to uphold their commitments to citizens and to protect the rights of UK nationals in the EU in the event of a ‘no deal’ scenario. We want UK nationals to be able to stay in the Member States that they live in when we leave, and for their rights to employment, healthcare, education, benefits and services to be protected. We ask Member States to set out details of how they would do so as soon as possible.

UK nationals who went to the EU and EU citizens who came to the UK before the UK’s exit from the EU did so on the basis that they would be able to settle permanently and build a life here, or in the EU. That is why the UK has taken steps to remove any ambiguity and provide complete reassurance for EU citizens in the UK. We ask that the EU and Member States do the same for our nationals.

We will continue to push the EU and Member States to secure these rights as soon as possible, which are in the mutual interest of all our citizens. Where it is in our control, the UK will also continue to preserve certain rights of UK nationals in the EU, for example by continuing to pay an uprated UK state pension to eligible UK nationals living in the EU.328

On 19 December 2018 the European Commission issued a press release to the EU27, calling on each Member State to “take a generous approach” to the rights of UK nationals in the event of a no deal:

The Commission has consistently put citizens first throughout these negotiations and throughout its “no-deal” preparedness and contingency work. Today’s Communication invites Member States to

327 Department for Exiting the European Union, ‘Citizens’ rights – EU citizens in the UK and UK nationals in the EU’ policy paper, published 6 December 2018, 5

328 Ibid, 18-20

take a generous approach to the rights of UK citizens in the EU, provided that this approach is reciprocated by the UK. In particular, Member States should take measures to ensure that UK citizens legally residing in the EU on the date of withdrawal will continue to be considered legal residents. Member States should adopt a pragmatic approach to granting temporary residence status. It is recalled that the Commission has already adopted a proposal for a Regulation which exempts UK nationals from visa requirements, provided that all EU citizens are equally exempt from UK visa requirements.

As regards social security coordination, the Commission considers it necessary that Member States take all possible steps to ensure legal certainty and to protect the rights acquired by EU27 citizens and UK nationals who exercised their right to free movement before 30 March 2019.329

EU proposals

Steve Peers, Professor at the University of Essex, argued in July 2018 that ‘citizens’ rights’ should be ring-fenced from the rest of the negotiations so as to ensure continuity of rights for eligible UK and EU nationals if the UK leaves with no deal. However, in the absence of any ringfencing, he made a separate argument for a unilateral EU-wide regulation that echoes what the ‘settled status’ legislation does, maintaining that the EU has the power to legislate on this issue and should do so for the sake of legal certainty.

The EU has not adopted comprehensive legislation covering citizens’ rights in the event of ‘no deal’, and if this happens continuation of these rights will largely depend on individual Member States’ legislation.330 EU27 States are making some progress in preparing relevant WA-related legislation and producing other legislation in case there is no deal. The UK has reached agreement on separation issues, including citizens’ rights, with the EFTA States. There are also UK reciprocal citizens’ rights agreements with Spain and Latvia, and suggestions for reciprocal rights agreements with Austria, Czech Republic, France, Hungary, Portugal and Slovakia.331

However, as part of its Brexit preparedness contingency planning, the Commission has proposed Regulations which are intended to mitigate some of the effects on UK citizens living, working and travelling in the EU27 and vice versa if there is no deal.

On 29 January 2019 the EP’s Civil Liberties Committee voted unanimously in favour of a Commission proposal (2018/0390(COD)) to exempt UK nationals from visa requirements for stays in the EU of up to 90 days in any 180-day period from 30 March 2019. If agreed by both the Council and EP, the UK will be included in a list of countries (in Regulation 2018/1806) whose nationals do not need a visa to enter the EU for business, tourism or visits to family or friends. The visa exemption does not provide a right to work in the EU. The proposal requires a reciprocal visa waiver from the UK for EU

329 European Commission, press release – ‘Brexit: European Commission implements “no-deal” contingency action plan in specific sectors’, 19 December 2018

330 For EU27 preparedness to date, see Politico Pro, 31 January 2019, ‘Citizens’ rights for Brits in the EU if there’s no Brexit deal’

331 MLex,

 

nationals. The draft states that if the UK introduces a visa requirement for nationals of at least one Member State, “the reciprocity mechanism foreseen in EU legislation should apply”.

On 30 January 2019 the European Commission proposed a Regulation on establishing contingency measures in the field of social security coordination.332 The EU press release stated that the proposal “ensures that Member States continue applying the core principles of EU social security coordination, namely the principles of equality of treatment, assimilation and aggregation”, but it did not “replicate” the text of the November WA, cover rights accumulated after 29 March 2019 (postponed to 31 January 2020, with a transitional period to effective withdrawal on 31 December 2020), or “cover the exportability of cash benefits, the continuous provision of sickness benefits in kind and the rules on applicable legislation”.

9.1 Mutual recognition of professional qualifications

Automatic recognition in UK but not necessarily reciprocated

As just one example of the influence of EU law on domestic work entitlements, under EU Directive 2005/36/EC on the mutual recognition of professional qualifications, EEA healthcare professionals with a qualification from an EEA country have their qualification automatically recognised when applying to be registered with a relevant professional regulator. Regulators include the General Medical Council (GMC), Nursing and Midwifery Council (NMC) and General Dental Council (GDC).

Mutual recognition of qualifications is written into UK legislation and regulations governing doctors, nurses and other healthcare professionals, as well as a variety of other regulated professions set out in the EU Directive. This would probably be retained in UK law in the case of a no-deal Brexit, allowing UK regulators to automatically recognise EEA nationals’ qualifications; however, as discussed below, the conditions under which recognition of EEA qualifications operates can be amended by Parliament at will in the event of ‘no deal’.

‘No deal’ would mean that the qualifications of UK-trained medical professionals would no longer be automatically recognised when registering to practise in the EU27, unless equivalent provisions were swiftly introduced into national legislation by other EU countries.

The BMA has argued that continued mutual recognition of professional qualifications is crucial for hiring EU nationals to work in the health service, with any changes to this being particularly felt in Northern Ireland, whose health service employs a large number of healthcare professionals from Ireland.333

It is important to note as well that, although UK regulators may continue to be allowed to unilaterally recognise EEA nationals’ qualifications, the UK would lose access to the current EU-wide alert system. This notifies UK

332 European Commission press release, 30 January 2019

333 BMA, The impact of leaving the EU on patients, February 2018

 

regulators at the pre-registration stage of EU health professionals where concerns have been raised about their fitness to practise.

English language testing

The Government has commented to the Health Select Committee that after leaving the EU it would consider introducing more stringent pre-registration English language testing for healthcare professionals, which they are not currently allowed to do under the EU Directive on mutual recognition. Therefore, the Government may choose to amend the law on recognition of EU healthcare qualifications, rather than retain it in its current form. In its response to the Committee’s report on Brexit and health and social care, the Government set out its view on the need for a balance between language stringency and avoiding bureaucracy:

The primary purpose of regulating healthcare professionals is to ensure public safety. Some regulatory bodies have concerns that MRPQ (Mutual Recognition of Professional Qualifications Directive) limits the action they can take when registering EEA professionals, particularly by restricting tests of language competence. The Department agrees that a balance needs to be struck between managing this risk in a proportionate way and ensuring that the flow of skilled and valuable healthcare professionals into the NHS is not impeded by unnecessary levels of bureaucracy.334

More information can be found in the Commons Briefing Paper, Language testing for healthcare professionals, 7 March 2018.

9.2 Reciprocal healthcare

Current reciprocal healthcare arrangements

The EEA Member States and Switzerland co-ordinate the provision of social security including healthcare under Regulation 883/004. The Regulation includes rules on the reimbursement of healthcare costs between Member States in the following main circumstances:

• for visitors using the European Health Insurance Card (EHIC) for all necessary care during temporary stays in another Member State;
• for state pensioners and their dependants who have moved abroad, the state that pays their state pension is responsible for paying the costs of their healthcare – known as the S1 route;
• for a person who has been authorised to undergo a planned medical treatment in another Member State, costs are paid by the Member State that has referred them – known as the S2 scheme;
• for a dependant (usually a spouse or child) of someone who lives in another EEA Member State or someone from another EEA Member State working in the UK.

What the Withdrawal Agreement provides

334 Department of Health, Government response to the House of Commons Health Committee report Brexit and health and social care – people & process, Cm 9469, December 2017, page 6

 

The negotiated Withdrawal Agreement aims to protect reciprocal healthcare arrangements for UK nationals resident in the EU before the end of the transition period (and vice-versa), so long as they continue to live or work in the country where they lived or worked at the end of the transition.335 This includes UK state pensioners who have retired to the EU27, as well as people who have started a course of pre-planned health treatment abroad.

The Government will continue to seek agreement with the EU that protects the reciprocal healthcare entitlements of state pensioners, including those not covered by the terms of the Withdrawal Agreement, and seek to fully protect rights under the EHIC S1 and S2 schemes, including:

• the rights of UK state pensioners who retire to the EU (and vice versa) after the end of the implementation period to benefit from a reciprocal healthcare scheme;
• the rights of UK residents to continue to receive needs-arising treatment in the EU under the EHIC scheme (and vice versa); and
• the rights of UK residents to be able to receive planned treatment in an EU Member State when this is pre-authorised by the UK (and vice versa).336

Possible impact of no deal

In the event of a no-deal Brexit, the existing reciprocal healthcare arrangements for UK citizens in the EU and EU citizens in the UK would probably end. The Government has said it is developing contingency plans for this eventuality:

We are confident of securing a comprehensive deal but, to fully prepare for the unlikely event the UK and the EU do not agree the Withdrawal Agreement and implementation period, or secure a deal on future reciprocal healthcare rights, we are further developing contingency plans to minimise disruption for patients after the UK exits the EU. This includes building our understanding of the systems, processes and infrastructure needed in Member States to prioritise the safety of both UK and EU patients in all scenarios.337

But the Department added that it was not at this stage “in a position to reveal further details of our contingency planning” as it was focussing on “securing a reciprocal deal with the EU”.338

The British Medical Association (BMA) provided the following summary of what a no deal could mean:

Should there be a failure to agree a withdrawal agreement by March 2019, access to reciprocal healthcare arrangements for UK citizens and residents within the EU, and EU citizens and residents within the UK, would end. This would lead to significant disruption to those individuals’ healthcare arrangements, an increase in costs of

335 Department of Health and Social Care, Government response to House of Lords European Union Committee, 13th report of session 2017-19, ‘Brexit: reciprocal healthcare’, June 2018, p 6

336 Ibid, p 8

337 Ibid, p 10

338 Ibid

insurance, and uncertainty regarding accessing healthcare abroad. Moreover, the NHS would face a drastic increase in demand for services, which could dramatically increase its costs and place greater pressure on doctors and clinical staff. […] The impact of the loss of reciprocal care on patients would be significant, especially given the number of beneficiaries that are pensioners living abroad. Evidence given to the House of Commons Health Select Committee has suggested that many of them will be unable to fund private healthcare and so will be forced to return to the UK.12 UK citizens travelling within the EEA, and EEA citizens visiting the UK, will also need to purchase their own travel or health insurance should access to reciprocal arrangements be lost. This is a particular concern for those with disabilities or long-term conditions, as the cost of health and travel insurance for those with pre-existing conditions could be prohibitively high.

The UK currently has bilateral reciprocal healthcare arrangements with 16 non-EEA countries.340 In the event of no deal, the UK could negotiate similar arrangements with the EU as a whole or with individual EEA Member States. However, bilateral agreements cannot be negotiated while the UK remains in the EU,341 which means that in the event of no deal, and before bilateral agreements have been agreed, there could be a sustained period where UK citizens do not have any access to reciprocal healthcare arrangements.

The UK has some reciprocal healthcare arrangements which pre-date EU membership (see below), but the status of these agreements if no deal is agreed remains unclear. Evidence given to the Health Select Committee noted that such agreements would not be comprehensive if relied upon as a contingency:

Of course, we have a number of agreements that predate the European Union that we could fall back on, but each of those has different terms and conditions, different eligibilities, different limits and different numbers of people who can be covered.342

Access to the NHS of EU nationals resident in UK

While visitors from the EU to the UK have access to the NHS governed by reciprocal healthcare arrangements, EU nationals who are ‘ordinarily resident’343 in the UK access free NHS treatment through a different legal mechanism.

Under the National Health Service (Charges to Overseas Visitors) Regulations 2015, SI 2015/238, providers of NHS healthcare in England are required to charge overseas visitors (people not classed as ‘ordinarily

339 BMA, Brexit briefing: Reciprocal healthcare between the UK and EU, September 2017, page 2-7

340 NHS Choices, Non-European Economic Area (EEA) countries that have reciprocal healthcare agreements with the UK

341 Health Committee, Brexit and health and social care—people & process, 25 April 2016, HC 640 2016-17, para 108

342 Ibid, para 111

343 Access to the NHS is based on the concept of ‘ordinary residence’, rather than nationality or citizenship.

 

resident’ in the UK) for use of the NHS, unless they have one of the exemptions set out in the regulations.

As set out in the Government’s Guidance on implementing the overseas visitor charging regulations, there is a three-fold test of ordinary residence for EEA nationals:

• Is the individual lawfully in the UK?
• Is the individual here voluntarily?
• Is the individual properly settled here for the time being?

There are similar ordinary residence requirements in the Scottish, Welsh and Northern Irish equivalent regulations.

As set out above, in the event of a no-deal Brexit, the Government has stated its intention for EU nationals living in the UK to be able to apply for settled status, giving them the same access to the NHS as they have currently:

Wera Hobhouse (Bath) (LD)

…I have a very simple question. Do settled status and pre-settled status give EU citizens the same right to use the national health service as UK nationals?

The Minister for Immigration (Caroline Nokes)

Yes.344

New national body

In a letter on 21 December 2018 the Department of Health and Social Care wrote to providers and commissioners of NHS Services about a new national body, the Operational Response Centre, to respond to disruption in the NHS caused by a no-deal Brexit. The new body “will lead on responding to any disruption to the delivery of health and care services in England” as a result of a no-deal Brexit, and will “co-ordinate EU Exit-related information flows and reporting across the health and care system”. The letter continued:

The Operational Response Centre will also work closely with all of the devolved administrations to ensure a co-ordinated approach across the UK. The Operational Response Centre will not bypass existing regional reporting structures; providers and commissioners of NHS services should continue to operate through their usual reporting and escalation mechanisms.

NHS England and Improvement will also establish local, regional and national teams to enable rapid support on emerging local incidents and escalation of issues into the Operational Response Centre as required.

Medicines regulation and supply

Concerns about the potential impacts of a no-deal Brexit on medicines supply in the UK relate to how medicines (and medical devices) will be regulated and monitored for safety in the future, the supply of medicines and future pharmaceutical trade.

344 HC Deb 21 June 2018, c519

UK imports of medicine and pharmaceutical products were worth £24.8 billion in 2016, and mostly came from the EU. UK exports of these products were worth £24.9 billion – around half of these went to EU countries. The Association for the British Pharmaceutical Industry (ABPI) has said that this reflects:

45 million packs of medicines that leave the UK every month and go to Europe, and 37 million packs of medicines that leave the continent and come to the UK.345

Currently, the European Medicines Agency (EMA) provides and coordinates licensing, expertise and support for medicines and medical devices throughout the EU. Marketing authorisations (medicines licences) may be granted centrally or through a mutual recognition process and apply across the EU, or may be granted by the Member State regulator to apply in one country. The Medicines and Healthcare products Regulatory Agency (MHRA) is the UK medicines regulator. It currently works with the EMA as part of a regulatory network and contributes to its work.

The Government has said that it wants to seek an ‘associate’ membership of the EMA. The Secretary of State for Health and Social Care, Matt Hancock, has said this means “as close as possible participation with the European Medicines Agency with observer rights”.346 The November 2018 draft political declaration on the future stated that Parties will “explore the possibility of cooperation” with EU agencies such as the European Medicines Agency.

However, in the event of a no-deal Brexit, and without other arrangements in place, the UK could not continue to participate in the shared regulatory framework with the EMA. The Government has confirmed that the MHRA would take on responsibility for functions currently undertaken by the EMA and that this would require changes to the Human Medicines Regulations 2012.347

Medicines licences

For those medicines that are to be licensed and supplied in the EU, the EMA has set out that, in the event of a no-deal Brexit, there will be requirements for marketing authorisation holders and batch testing of medicines to be based in the EU from 30 March 2018.348

Following a no deal Brexit, new medicines in the UK would need to be licensed separately. Concerns have been expressed that this could mean delays in applications for licences because the UK would represent a much

345 BEIS Committee, The impact of Brexit on the pharmaceutical sector, 9th Report of Session 2017–19, May 2018 p8

346 Health and Social Care Committee, Work of the Secretary of State, Oral Evidence, 24 July 2018 (Q316)

347 Department of Health and Social Care, Guidance: How medicines, medical devices and clinical trials would be regulated if there’s no Brexit deal, 23 August 2018

348 EMA, Questions and Answers related to the United Kingdom’s withdrawal from the European Union with regard to the medicinal products for human and veterinary use within the framework of the Centralised Procedure, 1 February 2019

 

smaller market, and that this could impact on how quickly medicines would be available.

349,350

Medicines supply

Beyond the regulation of medicines, there are concerns about potential trade barriers and resulting delays in medicines supply that may occur in the event of no deal.

In the absence of a trade agreement with the EU, under the WTO Pharmaceutical Tariff Elimination Agreement, tariffs on medicines are unlikely to increase significantly, compared with other products.351 However, not all medical products are included in this Agreement; pharmaceutical companies have reported that relying on WTO rules could disrupt supply chains and lead to higher costs of medicines.352 There are also concerns about an increase in non-tariff barriers in the event of no deal, and the potential delays this could mean for medicines supply, especially for those medicines with a short shelf life, such as medical radioisotopes.353

Box 4: Medical radioisotopes: Radioisotopes are used in the diagnosis and treatment of a range of conditions354 and are imported to the UK from (mainly EU) research reactors.355 Although radioisotopes can be sourced from beyond the EU, the materials often have short half-lives, meaning they can decay rapidly and cannot be stored for very long. In the UK around 700,000 nuclear medicine procedures using radioisotopes are carried out each year.356

Concerns have been raised that Brexit could affect the supply of radioisotopes357 by causing import delays358 and causing the UK to leave the Euratom Observatory which manages supply chains in times of shortages.359 A no-deal Brexit could mean that any potential customs agreement and cooperation with the Observatory which might be sought as part of a deal would not be realised.

The Government has said that the availability of radioisotopes should not be impacted by Brexit.360

For further information on the supply of nuclear material, see section 12.2.

349 House of Lords Select Committee on Science and Technology, Corrected oral evidence: Brexit: regulation and standards, January 2017 (Q7)

350 BMA, Brexit Briefing: Medicines and medical devices regulation, October 2017

351 BEIS Committee, The impact of Brexit on the pharmaceutical sector, Ninth Report of Session 2017–19, May 2018

352 BEIS Committee, The impact of Brexit on the pharmaceutical sector, Ninth Report of Session 2017–19, May 2018

353 Dayan M, Over the edge: a no deal Brexit and the NHS, Nuffield Trust comment, August 2018

354 European Commission, Supply of medical radioisotopes, Accessed 13 August 2018

355 World Nuclear News, Radioisotopes in Medicine, May 2017

356 Supply of Medical Radioisotopes, POSTnote 558, July 2017

357 Dr Nicola Strickland, ‘RCR statement on the potential impact of leaving the Euratom treaty’, Royal College of Radiologists, 10 July 2017

358 Lords Select Committee on the EU, Home Affairs Sub-Committee, Brexatom: the health implications of leaving Euratom, Oral Evidence, 22 November 2017, Q3

359 Ibid Q4

360 HC Deb 27 June 2017 Vol 626

Government preparedness

In July 2018 Secretary of State for Health and Social Care Matt Hancock said the Department was preparing for range of outcomes, including a no deal scenario.361 Furthermore, he said that:

We are focusing on the importance of a continuous supply of medicines that have a short shelf life; some of the medicines that would be most difficult to provide in a no-deal scenario where there was difficult access through ports would need to be flown in, for instance. I hope that, even under a no-deal scenario, there will still be smooth movement in through ports, because it is not our intention to provide barriers to that, and the work will take that into account. But you can imagine that it is incredibly important for me, as Secretary of State, to ensure that people will have access to the medicines they need.362

He said the Department was working with industry on the stockpiling of medicines and that he was “confident that with the right amount of work we can mitigate the worst of the circumstances”.

In August 2018, the Government published ‘technical notices’ relating to medicines regulation in the event of no deal:

• How medicines, medical devices and clinical trials would be regulated if there’s no Brexit deal
• Batch testing medicines if there’s no Brexit deal
• Submitting regulatory information on medical products if there’s no Brexit deal

More detailed information on the regulation of medicines and medical devices in the event of no deal is provided in an MHRA January 2019 guidance document:

• Further guidance note on the regulation of medicines, medical devices and clinical trials if there’s no Brexit deal

The technical notices (which have been updated since August) state that in the event of no deal:

• existing EU law on medicines would be converted into UK law under the EU Withdrawal Act 2018;
• the UK will recognise medical devices that are CE marked and approved for the EU market and will comply with new EU medical devices regulations due to come into force in 2020 and 2022;
• current marketing authorisations granted through the centrally authorised product route will be converted to UK marketing authorisations, but after 29 March 2019 (postponed to 31 January 2020, with a transitional period to effective withdrawal on 31 December 2020), all new applications for a marketing authorisation in the UK would have to be made to the MHRA;
• batch testing of imported medicines from the EEA and named third countries will continue to be recognised in the UK;

361 Health and Social Care Committee, Oral evidence: Work of the Secretary of State, HC 523 (Q209), 24 July 2018

362 Ibid, Q308

 

• marketing authorisation holders and those responsible for pharmacovigilance (Qualified Persons) should be established in the UK by the end of 2020; and
• new systems for the submission and processing of regulatory information are being developed for March 2019.

The Government said that the MHRA would:

…take a streamlined approach to approving UKMA applications that places no greater burden on industry and ensures that patients can access new and innovative medicines at the same time as EU patients.363

On 23 August 2018, alongside the publication of the technical notices, Mr Hancock wrote to hospitals, GPs, pharmacies and pharmaceutical companies, setting out what action would need to be taken to ensure medicines supply to patients continues in the event of a no-deal Brexit. The letter requested that pharmaceutical companies ensure that by 29 March 2019 (postponed to 31 January 2020, with a transitional period to effective withdrawal on 31 December 2020) they have an additional six weeks’ supply of medicines on top of the normal buffer stock held and that for products with short shelf lives, suppliers should make plans to air freight these to avoid border delays.364

The letter also informed pharmacists and hospitals that they should not stockpile medicines and asks clinicians to advise patients about Government plans to maintain medicines supply – and that they too should not stockpile medicines.365

In December 2018, Matt Hancock wrote again to medicines suppliers to update on progress. He said that the Government had been working to design customs controls at the borders to ensure that goods can continue to flow into the UK and not be delayed by additional controls and checks. However, the European Commission had advised that in a no deal scenario, full third country controls would be placed on goods entering the EU from the UK. Government planning assumptions had now been revised to show that access across the short strait crossings into Dover and Folkestone could now be reduced for six months. This meant that additional measures would need to be introduced by pharmaceutical companies on top of stockpiling. The DHSC’s Medicines Supply Contingency Planning Programme requires medicines’ manufacturers and suppliers to provide information to the Department on their contingency plans for medicines imported from the EU.

The Government have also invested in additional warehouse space for the stockpiling of medicines, at an estimated cost “in the low tens of millions of pounds.” This warehouse space is due to be in place by February 2019.366

The Department of Health and Social Care (DHSC) published its EU Exit Operational Readiness Guidance in December 2018. This set out a range of actions that were being taken by the Department to prepare for a no deal

363 DHSC, Guidance: How medicines, medical devices and clinical trials would be regulated if there’s no Brexit deal, 23 August 2018

364 DHSC, Letter from Secretary of State for Health and Social Care to pharmaceutical companies, 23 August 2018

365 DHSC, ibid

366 Written Question: 203449 [Drugs], 7 January 2019

scenario and set out what action was required by commissioners, healthcare providers and pharmaceutical companies. It included the following:

• Ongoing work to ensure sufficient roll on, roll off freight capacity to enable medicines and medical products to move freely to the UK, and that these products would be prioritised on alternative routes to ensure unimpeded movement into the UK;
• In the the event of delays, contingency planning was continuing with pharmaceutical companies and other government departments;
• DHSC and NHS England and NHS Improvement were working on measures to enable the local and regional monitoring of stock levels of medicines;
• DHSC would introduce a “Serious Shortage Protocol” through changes in medicines legislation to address potential medicines shortages (see below); and
• Public Health England was leading a UK wide programme to ensure the supply of centrally procured products such as vaccines.367

The guidance also reiterated that there was no need for stockpiling by hospitals, pharmacists or patients.

Two pieces of draft legislation have been published which aim to enable the continued regulation of medicines and medical devices in the event of a no deal Brexit:

• The Human Medicines (Amendment etc) (EU Exit) Regulations 2019 (laid on 23 January 2019) includes provisions to enable the MHRA to act as a standalone regulator in the event of a no deal Brexit.368
• The Medical Devices (amendment) (EU exit) Regulations 2019 (laid on 24 January 2019) amends UK legislation that implements EU legislation on medical devices and confirms that the UK will implement the new EU regulations on medical devices that will apply from 2020 and 2022.

Another piece of Secondary Legislation, the Human Medicines (Amendment) Regulations 2019 introduced the “Serious Shortage Protocol” measures highlighted in the EU Exit Operational Readiness Guidance. These makes provision for Ministers to issue a “Serious Shortage Protocol” in the event of a shortage of a prescription-only medicine.369 This would allow pharmacies to dispense against a protocol instead of a prescription without going back to the prescriber first. This may allow a pharmacist to dispense a different quantity or strength of medicine or a generic or therapeutic equivalent.370 The Government have said that robust safeguards would be put in place to ensure this is used safely.371 These regulations are due to

367 DHSC, EU Exit Operational Readiness Guidance, December 2018

368 The Human Medicines (Amendment etc.) (EU Exit) Regulations 2019, Explanatory Memorandum

369 The Human Medicines (Amendment) Regulations 2019, Explanatory Memorandum

370 Letter from Chief Pharmaceutical Officer at NHS England, 17 January 2019

371 DHSC, EU Exit Operational Readiness Guidance, December 2018

come into force on 9 February 2019. However, some concerns have been expressed about these measures,

372 and the Opposition leader, Jeremy Corbyn, has tabled a motion to annul the negative Statutory Instrument.373

More information for patients on getting medicines in the event of a no deal Brexit is provided in a Government guidance document.374

9.3 Workers’ Rights

Current state of UK and EU employment law

A substantial component of UK employment law is grounded in EU law. This includes the law in areas such as working time, holiday pay, agency workers, discrimination, TUPE and data protection. A full list of EU employment rights is annexed to the Library Briefing Paper, Brexit and employment law.

Many EU employment rights are set out in Directives. These are implemented in the UK either by primary legislation (e.g. Equality Act 2010) or secondary legislation (e.g. Working Time Regulations 1998). Some EU employment rights are set out in Regulations (e.g. Regulation (EU) 492/2011 on workers’ rights) or in the Treaties (e.g. Article 157 TFEU on equal pay). These rights are directly effective.

EU law sets a minimum floor below which UK employment law must not fall. The UK can, and sometimes does, provide greater rights than is required by EU law.

EU employment rights if there is no deal

BEIS Technical Notice

On 23 August 2018, the Department for Business, Energy and Industrial Strategy (BEIS) published a technical notice on workers’ rights if there is no Brexit deal. The notice states that, for the large part, the Government will make no substantial changes to workers’ rights:

The EU (Withdrawal) Act 2018 brings across the powers from EU Directives. This means that workers in the UK will continue to be entitled to the rights they have under UK law, covering those aspects which come from EU law (including those listed above except where caveated below). Domestic legislation already exceeds EU-required levels of employment protections in a number of ways. The government will make small amendments to the language of workplace legislation to ensure the existing regulations reflect the UK is no longer an EU country. These amendments will not change existing policy.

The notice does state that certain technical changes will be made to retained EU law, largely to correct references that are no longer applicable as a result of the UK leaving the EU. These changes will be made by the six statutory instruments which are listed at the end of the notice.

372 Henry Zeffman, Chris Smyth, Ministers will order pharmacists to ration drugs if UK crashes out, The Times, 7 December 2018, and Jenny Cook, BMA safety warning as pharmacists gain power to switch prescriptions, GPonline, 21 January 2019

373 EDM 2048, 5 February 2019

374 Department of Health and Social care, Getting medication, 18 January 2019

European Works Councils

European Works Councils (EWCs) are bodies through which workers at European companies can be consulted by management on decisions that are being made at a European level. EWCs can be set up where a company has more than 1,000 employees and at least 150 in at least two Member States. In the UK the rules on EWCs are implemented by the Transnational Information and Consultation Regulations 1999 (‘TICE Regulations’).

The BEIS technical notice summarises the changes that will be made to the TICE Regulations: UK regulations will be amended so that:

• no new requests to set up a European Works Council or Information and Consultation procedure can be made
• provisions relevant to the ongoing operation of existing European Works Councils will remain in force
• requests for information or to establish European Works Councils or Information and Consultation procedures made before EU exit but not completed by EU exit will be allowed to complete.

Part 1 of the Employment Rights (Amendment) (EU Exit) Regulations 2019 will give effect to these changes.

Insolvency

Directive 2008/94/EC (the Insolvency Directive) makes provision about protection of employees in cases where their employer goes insolvent. The Directive requires, in short, for Member States to set up financial “guarantee institutions” to provide certain financial protection to employees in such situations. Where a company operates in more than one Member State, the guarantee institution of the State where an employee habitually works is responsible for making insolvency payments to them.

In the UK, insolvency payments are made through the National Insurance Fund and is governed by Parts XI and XII of the Employment Rights Act 1996. The BEIS technical notice states that this scheme will not change in the event of a no-deal Brexit. It notes, however, that the rights of employees of UK companies in EU Member States will be determined by the laws of that country:

UK and EU employees who work outside the UK in an EU country for a UK employer may still be protected under the national guarantee fund established in that country. However, this might not always be the case, as there are variations in how each EU Member State has implemented the guarantee required by EU law and how this applies to employees of employers based outside the EU, which will include UK employers after exit if there is no agreement

9.4 Social security

In the event of ‘no deal’, the provisions in EU law on the co-ordination of social security schemes for people between Member States375 – in Regulation 883/2004 and associated regulations – would cease to apply to

375 The co-ordination rules apply to countries in the European Economic Area (EEA), and to Switzerlandsituations involving the UK and the EU. The co-ordination rules do not harmonise social security systems across the EU, but instead support freedom of movement by, for example, providing for equal treatment in access to benefits with nationals of the host state, clarifying which state is responsible for paying benefits, allowing aggregation of insurance periods across countries, and enabling certain benefits to be ‘exported.’ A well-established system of administrative co-operation between Member States ensures the effective operation of the co-ordination rules, dispute resolution and secure data sharing.

This could have serious implications for people – both UK nationals and EU27 citizens – in cross-border situations. Situations that might occur include, for example:

• Individuals being unable to aggregate contributions paid or periods of residence in the UK and the EU27 states to satisfy the conditions for benefits;
• No clear rules about which country, if any, is responsible for paying a person’s benefits where they have lived in more than one country, and no mechanism for resolving disputes; and
• Posted workers – i.e. employees working in another country temporarily – finding themselves liable to pay social security contributions in both countries, instead of remaining insured only under the scheme of their home country.

UK contingency planning

The European Union (Withdrawal) Act 2018 converts EU law as it stands at the moment of exit into domestic UK law (‘retained EU law’) in order to maintain a functioning statute book. This will include EU Regulations relating to social security co-ordination. The Government has already laid before Parliament proposed negative Statutory Instruments (under powers in the EU (Withdrawal) Act to address deficiencies in retained EU law) intended to ensure that, to the extent that the UK can do so unilaterally, social security co-ordination can continue to operate in a ‘no deal’ scenario. So, for example, where previously the Department for Work and Pensions would have been able to request information from a Member State to determine which state is responsible for paying benefits in a particular case, it would now ask the claimant to provide evidence directly. Section 4.4 of Commons Library briefing CBP-8473, Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19, gives further details.

The Immigration and Social Security Co-ordination (EU Withdrawal) Bill currently before the House of Commons would enable the Government (and/or where appropriate, a devolved authority) by regulations to modify retained EU legislation on social security co-ordination. The Government states that this power is necessary to enable it to deliver a range of policy options from EU exit day, and specifically to implement its preferred approach to social security co-ordination in a ‘no deal’ scenario. It has not

376 For further information on social security co-ordination see section 4.1 of Commons Library briefing CBP-8473, Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19, 25 January 2019

however explained what its preferred approach is. Given that social security co-ordination requires reciprocity, there would have to be an agreement or agreements in place with the EU or individual states for a working system to be established.

The UK Government is committed to implementing the EU Settlement Scheme even in a ‘no-deal’ scenario. EU nationals granted settled status should have full access to UK social security benefits. The position of those who, on 29 March 2019 (postponed to 31 January 2020, with a transitional period to effective withdrawal on 31 December 2020), have not been resident in the IK for five years – those with ‘pre-settled status’ – is less clear.

On 6 December the Department for Exiting the EU published a policy paper outlining the Government’s plans to protect citizens’ rights in the event that the UK leaves the EU without a deal.377 While it acknowledged that co-ordinating social security for people in cross-border situations required reciprocity from EU states, it said that the Government was exploring options to protect past social security contributions and reciprocal healthcare arrangements in the event of a ‘no deal’ scenario. EU citizens resident in the UK by 29 March 2019 (postponed to 31 January 2020, with a transitional period to effective withdrawal on 31 December 2020) would be able to access benefits in the UK as they do now, and the Government called on the EU and Member States to take corresponding steps to protect the rights of UK nationals in the EU.

To the extent that it was within its control, the Government would seek to preserve the rights of UK nationals in the EU. It is however making contingency plans to help returning UK nationals access benefits and other support quickly, should they find themselves unable to continue to live abroad. The policy paper published on 6 December stated:

We recognise that an issue raised by UK nationals is their ability to access to benefits and housing quickly on return to the UK. Arrangements will be made to ensure continuity of payments for those who return and are already in receipt of UK state pension or other UK benefits while living in the EU. We are considering how support could be offered to returning UK nationals where new claims are made and will set out further details in due course.378

EU contingency planning

On 19 December the European Commission issued a communication for Member States on contingency planning for a ‘no deal’ Brexit covering, among other things, social security co-ordination.379 It stated:

If the Withdrawal Agreement is not ratified, Union rules on social security coordination will no longer apply to the United Kingdom. This raises concerns for EU citizens who currently work or reside in the United Kingdom, or have done so previously, about their social security entitlements. The same applies to UK nationals currently working/residing in a different Member State.

377 Citizens’ Rights – EU citizens in the UK and UK nationals in the EU

378 Ibid. para 24

379 Preparing for the withdrawal of the United Kingdom from the European Union on 30 March 2019: Implementing the Commission’s Contingency Action Plan, COM(2018) 890 final. See also the accompanying memo, Questions and Answers: the consequences of the United Kingdom leaving the European Union without a ratified Withdrawal Agreement (no deal Brexit)

The Commission calls upon Member States to take all possible steps to respond to these concerns and to ensure legal certainty and protection of the social security entitlements acquired by citizens who exercised their right to free movement prior to 30 March 2019.

In particular, the Commission calls upon Member States to:

1. take into account, for EU27 citizens and UK nationals, periods of work/insurance that occurred in the United Kingdom before the withdrawal;
2. inform citizens that they should keep the appropriate documentation that provides evidence for these periods;
3. ensure that ‘aggregation’ of periods completed until withdrawal also benefits those who continue to live in the United Kingdom;
4. export old-age pensions to the United Kingdom, despite the fact that it will be a third country. This would apply to those citizens who continue to reside in the United Kingdom after the withdrawal date, but also to the UK nationals who acquired old-age pension entitlements within the EU27 prior to the withdrawal date.380

The communication remined Member States however that ‘the Union has exclusive competence on social security coordination for the periods completed and for facts and events that occurred before the withdrawal date.’

This was followed on 30 January by a European Commission proposal for a new EU Regulation “on establishing contingency measures in the field of social security coordination following the withdrawal of the United Kingdom of Great Britain and Northern Ireland.”381 An accompanying Commission press release states:

Protecting citizens’ social security rights

The Commission has consistently made clear that the rights of EU citizens in the United Kingdom and UK nationals in the EU are our priority. They should not pay the price for Brexit. Today’s proposal aims to ensure that in a “no-deal” scenario, the entitlements of those people who exercised their right to free movement before the UK’s withdrawal are safeguarded. These entitlements include periods of insurance, (self) employment or residence in the United Kingdom before withdrawal. For example, this means that if an EU27 citizen worked for 10 years in the United Kingdom before Brexit, this period should be taken into account when his/her pension rights are calculated by the competent authorities in the EU Member State where he/she retires.

The proposed Regulation ensures that Member States continue applying the core principles of EU social security coordination, namely the principles of equality of treatment, assimilation and aggregation. Today’s proposal by no means replicates the significant advantages of the Withdrawal Agreement, as agreed in 14 November. It does not cover rights accumulated after 29 March 2019 (postponed to 31 January 2020, with a transitional period to effective withdrawal on 31 December 2020), nor does it cover the exportability of cash benefits, the

380 p5

381 COM(2019) 53 final, 2019/0019 (COD)

continuous provision of sickness benefits in kind and the rules on applicable legislation.

382

Existing bilateral agreements

For some of the states covered by the co-ordination rules, the UK has bilateral, reciprocal social security agreements which pre-date their, or the UK’s, EC/EU entry.383 These agreements were superseded by the EU co-ordination rules, but remain in force for limited purposes. Should the co-ordination rules cease to apply and no alternative arrangements be in place, it is possible that these bilateral agreements would become applicable again.384 These bilateral agreements are, however, far more limited in scope than the EU co-ordination rules; vary widely in terms of the persons and benefits covered and may refer to benefits which no longer exist. Administrative mechanisms would also need to be established in tandem with each of the other countries for any reciprocal arrangements to work.

In a report published on 5 February the European Scrutiny Committee said that it had written to the Minister for Employment, Alok Sharma, seeking information as soon as possible about, among other things-

The extent to which any pre-existing social security agreements with individual EU countries can be revived in a ‘no deal’ scenario, given the Commission’s assertion that the EU has exclusive competence over social security and healthcare arrangements with the UK that relate to periods of work undertaken before its withdrawal from the EU, and to what extent this limits what Member States can agree with the UK bilaterally with respect to UK and EU nationals who would otherwise have been within the scope of the Withdrawal Agreement.385

Migrants in the UK

The NRPF Network – a “network of local authorities and partner organisations focusing on the statutory response to migrants with care needs who have no recourse to public funds (NRPF)” – notes on its webpage about EEA Nationals that at present “EEA nationals and family members of EEA nationals, who are not eligible for welfare benefits social housing, may be able to receive housing and financial assistance from social services” only “if this is necessary to prevent a breach of their human rights or their European Treaty rights” and that any such assistance is limited to:

382 Brexit Preparedness: European Commission adopts final set of “no-deal” contingency measures for Erasmus+ students, social security coordination rules and the EU budget

383 EEA states with which the UK has historic bilateral social security agreements include Austria, Belgium, Croatia, Cyprus, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Luxembourg, Malta, Netherlands, Norway, Portugal, Slovenia, Spain, and Sweden. The UK also has a social security agreement with Switzerland.

384 Article 8 of EC Regulation 883/2004 provides that the co-ordination rules “shall replace” any pre-existing social security convention entered into by a Member State. It is not clear whether this means these conventions effectively cease to exist or merely remain ‘dormant’.

385 Fifty-third Report of Session 2017–19, HC 301-lii 2017-2019, para 6.26

 

• Families where there is a child in need (if the family are destitute then the child will be in need) [for a definition of “children in need”, see the Library briefing paper on this issue]
• A young person who was formerly looked after by a local authority
• An adult requiring care and support due to a disability, illness or mental health condition

In a no-deal scenario, the NPRF Network states that “the Government and EU have yet to reach a final agreement on the full terms that will apply to the UK when it leaves, and it is unclear how a ‘no deal’ situation will impact on these proposals. Arrangements have not yet been confirmed for non-EU EEA (Iceland, Liechtenstein and Norway) or Swiss nationals, but the Government has indicated it intends for them to be subject to the same process”, adding that:

The Government is currently proposing that after the UK has left the EU on 29 March 2019 (postponed to 31 January 2020, with a transitional period to effective withdrawal on 31 December 2020), there will be a transition period that ends on 31 December 2020. EU nationals and their family members living in the UK by the end of the transition period will need to take action before 30 June 2021 and apply for either settled or pre-settled (temporary) status under the EU Settlement Scheme if they wish to stay here. EU nationals and family members who arrive after 29 March 2019 (postponed to 31 January 2020, with a transitional period to effective withdrawal on 31 December 2020) and people who have already obtained a permanent residence document will also need to apply. The Government has indicated that a person who fails to apply by the end of June 2021 may have no lawful basis to remain in the UK, but it is unclear what the consequences of this will be. The EU Settlement Scheme is being piloted at the end of August and is due to be implemented by the end of the year. .

9.5 Pensions

State Pensions

The social security co-ordination rules allow periods of insurance for State Pensions purposes to be aggregated, so an individual who has worked in more than one Member States can on reaching pension age make one application to the relevant agency in the country of residence – in the UK, the International Pension Centre. This agency then notifies details of the claim to all countries in which the person has been insured. Each Member State in which the person was insured then calculates its pro-rata contribution and puts that amount into payment. There is information about these rules on the Europa.EU website – see State Pensions abroad.

The draft Withdrawal Agreement (WA) published on 14 November 2018 states that EU Regulations on social security co-ordination will continue to apply after the end of the implementation period for individuals in scope of the WA. The intention is to ensure that citizens who have moved between the UK and EU before the end of the transition period are not disadvantaged in their access to pensions. The WA provides protections in other circumstances so that, for example, where a UK national has

 

previously work and paid social security contributions in a Member State, rights flowing from those contributions, such as pensions are protected.386

The UK Government made an announcement on 6 December 2018 on citizens’ rights in the event of “no deal.” It said it had taken steps to provide reassurance for EU Citizens in the UK and had asked the EU and Member States to reciprocate:

19. UK nationals who went to the EU and EU citizens who came to the UK before the UK’s exit from the EU did so on the basis that they would be able to settle permanently and build a life here, or in the EU. That is why the UK has taken steps to remove any ambiguity and provide complete reassurance for EU citizens in the UK. We ask that the EU and Member States do the same for our nationals.
20. We will continue to push the EU and Member States to secure these rights as soon as possible, which are in the mutual interest of all our citizens. Where it is in our control, the UK will also continue to preserve certain rights of UK nationals in the EU, for example by continuing to pay an uprated UK state pension to eligible UK nationals living in the EU.387

It was exploring options in relation to those areas that required reciprocity (like social security co-ordination) and would announce further details prior to exit.388

Regarding uprating, it said it was committed to uprating the UK State Pension for UK nationals in the UK in 2019 to 2020, and beyond that subject to reciprocity:

Will UK nationals continue to get their State Pension uprated under no deal?

The UK leaving the EU will not affect entitlement to continue receiving the UK State Pension if you live in the EU, and we are committed to uprate across the EU in 2019 to 2020. We would wish to continue uprating pensions beyond that but would take decisions in light of whether, as we would hope and expect, reciprocal arrangements with the EU are in place.389

On 30 January 2019, the European Commission published final set of ‘no deal’ contingency proposals for social security co-ordination. Its aim was to ensure that in the event of a “no deal” scenario, EU Member State authorities would continue to take into account periods of insurance, (self) employment or residence in the United Kingdom before withdrawal, when calculating social security benefits, such as pensions.390

For more detail, see Library Briefing Paper CBP-7894 Brexit and State Pensions (February 2019).

386 HM Government, Explainer for the WA, 14 November 2018 37-42

387 DEXEU, Citizens’ Rights – EU citizens in the UK and UK nationals in the EU, 6 December 2018

388 Ibid, para 28

389 Guidance – UK nationals in the EU: benefits and pensions in a ‘no deal’ scenario, 18 December 2018)

390 European Commission, ‘Brexit Preparedness: European Commission adopts final set of ‘no deal’ contingency measures for Erasmus+ students, social security co-ordination rules and the EU budget, 30 January 2019

Private pensions

UK workplace pensions operate on a national basis subject to UK legislation.391 However, they invest internationally and a solution to the financial services passporting and derivatives issues discussed in section 6.2 is therefore important.

Another issue that will need to be addressed is ensuring that the small number of schemes operating across borders (in particular, between the UK and Ireland) are able to continue to do so.

These issues are discussed in more detail in Library Briefing Paper CBP-07629 Brexit – implications for private pensions (February 2019).

391 See Library Briefing Paper 7629 Brexit – implications for private pensions, August 2018

 

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