Membership of the EU has meant British citizens have built up rights as members of a wider European project, as have those from the continent living in the UK. The most obvious rights affected by Brexit are those to travel freely, and live and work in different countries.
However, less obvious factors will also be affected, including access to public services such as healthcare and education, as well as property rights and the ability to claim benefits or collect a pension.
Concerns resulted in a group called the 3 Million forum being set up to lobby for the rights of EU citizens.
Why do these have to be affected at all, and is there a cut-off date at which European citizens will be treated differently?
Given Theresa May’s claim that immigration will be a red line in the Brexit negotiations, European citizens arriving in the future will inevitably be subject to more restrictions than those already in Britain. They may be less likely to be allowed to work or live freely in the UK.
However, most politicians agree that those already living in the UK should not be affected.
One complication is that the prime minister will have to choose a cut-off date as to when the rules change. However, she is unlikely to pick a date in the future, as that could result in a big increase in migration as people try to beat the deadline.
Instead, experts have suggested that restrictions could be backdated to the date of the referendum result – 23 June – or to when article 50 is triggered, or after Brexit is complete.
Why can’t Theresa May act to end the uncertainty now?
She can. The prime minister could take action to guarantee rights unilaterally at any point.
Immediately after the referendum, Vote Leave chair, Gisela Stuart, criticised May for failing to do so, using an urgent question in the Commons to raise the issue. The Labour MP and prominent Brexiter said it was “deeply offensive” to deny millions of people their rights, and argued that individuals should not be used as “bargaining chips”.
However, Stuart was accused of hypocrisy by remain campaigners, including the Lib Dem leader, Tim Farron, who said her campaign to leave the EU had suggested the number of migrants would fall.
May has also come under intense pressure to act unilaterally from opposition parties and from both the group British Future and the Lords committee, which said the move to guarantee rights would provide goodwill.
Given that Brexiters are pushing for such guarantees, why doesn’t the prime minister just act?
The issue has blown open divisions between Britain and those ready to negotiate the Brexit deal, with Conservative MPs writing angrily to the European council president, Donald Tusk, accusing key EU figures of making it harder to end anxiety over the issue.
He responded with a public slap down in which he claimed the only cause of anxiety was the Brexit vote itself.
Those pushing for unilateral action argue that other countries will almost certainly follow suit.
Seeing as this appears to be in everybody’s interest, why don’t European countries engage with May and begin discussions?
It is clear that a number of European countries, in particular Poland, Bulgaria and Romania, are extremely concerned about the status of their citizens living in Britain. In October, ambassadors made that argument to a Lords committee, claiming that there was too little focus on the fact that their trained medical workers contribute to Britain’s NHS.
A month later, the Polish prime minister, Beata Szydło, stressed it was her main concern at a bilateral meeting with May.
However, she was also clear that she was sticking to the mantra of the EU27 when it came to Brexit – that there would be no negotiation without notification, even on the issue of EU citizens. That means nothing to be discussed until Britain triggers article 50.
Angela Merkel, the German chancellor, also reportedly said no to early talks on the issue during a meeting with May, and warned the British prime minister she faced tough negotiations over Brexit.
However, this issue is likely to be tied up as quickly as possible after article 50 is triggered, and certainly long before the two-year period is over.
What should EU citizens do in the meantime, and what about British people living abroad?
Helena Kennedy, who chairs the Lords committee that recently reported on acquired rights, suggested it would be sensible for EU citizens to start putting together documentary evidence of their time in Britain, including proof of employment and residence, appointment letters and even references.
Her committee heard from experts who suggested creating a new status for EU citizens in Britain, instead of asking people to apply for permanent residence. Prof Catherine Barnard warned that the paperwork involved in the latter would be staggering.
There could be particular issues for people who are in the country but do not work. One worrying factor is that there is a little known rule that those applying for permanent residence may have to prove they had health insurance that went beyond NHS provision.
Britons living overseas are similarly concerned, with fears about whether they will be able to maintain access to healthcare, and keep on drawing from their pensions.
