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BREXIT

UK can cancel Brexit before March 29th without EU’s consent, ECJ rules

A new option has become available to the UK in the Brexit process as the European Court of Justice ruled that revoking Article 50 unilaterally is a possibility.

UK can cancel Brexit before March 29th without EU’s consent, ECJ rules
File Photo: Justin Tallis/AFP.

The European Court of Justice (ECJ) has judged that the UK is free, should the government choose to, to “revoke unilaterally” its notification to withdraw from the European Union.

The judicial review was lodged in the EU’s Court of Session, First Division in Scotland by a cross-section of lawyers, MPs and MEPs from the UK Parliament, the Scottish Parliament and the European Parliament.

The judicial review was led by the Good Law Project, whose director Jolyon Maugham QC released a statement calling the ECJ’s decision “arguably the most important case in modern domestic legal history.” The Good Law Project was not supported by Labour or the Conservatives: “The tiny Good Law Project and six brave Scottish Parliamentarians have taken on the Government, the other 27 Member States and the Commission – and won,” added the statement.

The review was lodged in 2017 “to determine whether the notification referred to in Article 50 can be revoked unilaterally before the expiry of the two-year period, with the effect that such revocation would result in the United Kingdom remaining in the EU,” clarifies a press statement by the ECJ on Monday December 10th.

The option to revoke the withdrawal notification “exists for as long as the withdrawal agreement concluded between the EU and that Member State has not entered into force,” or, in the case of no ratified agreement, before the expiry of the two-year notification period from the date Article 50 was activated.

The UK notified the EU of its desire to exit the bloc by activating Article 50 on March 29th 2017 and would therefore be free, should the draft exit agreement not be ratified by the UK Parliament and the European Parliament, to revoke its notification to leave before March 29th 2019.

British Prime Minister Theresa May is still keen to go ahead with the UK’s departure as her embattled government faces a decisive vote in the UK Parliament tomorrow that could well decide the direction the Brexit process could take. UK and EU negotiators have agreed on a draft Brexit agreement that would settle certain issues related to the future relationship, including on trade, the reciprocal rights of citizens and certain issues of regulation.

READ ALSO: 'It's better than no deal': Do Brits in Europe hope Theresa May wins Brexit vote

Many observers, however, believe PM May will face a humiliating defeat in Parliament on Tuesday, December 11th, when MPs vote on that deal. This could force May to either seek a renegotiation with the EU or to request an extension to the Article 50 period beyond March next year. Worse still for her, the decision could contribute to the possibility of a vote of no-confidence in her leadership or a general election.
Should a UK government decide to revoke Article 50, the UK’s EU membership would be confirmed and its status as a Member State would remain unchanged. The withdrawal process, in such a scenario, would be brought to an end, the ECJ further clarified.

The UK’s Parliament is notoriously divided on the issue of Brexit and the news that the whole process could be cancelled with a few strokes of a pen will no doubt encourage those seeking a People’s Vote, a second referendum on the UK's exit from the European Union.

READ ALSO: 'Brexit won't happen': Why not all Brits in France are panicking about the future

MPs in favour of the UK remaining in the EU welcomed the ECJ’s clarification. “A simple way out of the Brexit chaos is available,” tweeted Richard Corbett, leader of the Labour MEPs. “This is hugely important. We can now stop Brexit quickly, with no loss of existing rights & benefits,” commented Labour Peer Andrew Adonis.

The First Minister of Scotland Nicola Sturgeon suggested an extension of Article 50 to allow time for another referendum, followed by a revocation, are options “now available to the House of Commons.”

READ MORE: Pensions and healthcare: UK offers assurances to Brits in EU over no-deal Brexit

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EUROPEAN UNION

How Europe plans to ease long-term residence rules for non-EU nationals

Non-EU citizens living in the European Union are eligible for a special residence status that allows them to move to another country in the bloc. Getting the permit is not simple but may get easier, explains Claudia Delpero.

How Europe plans to ease long-term residence rules for non-EU nationals

The European Commission proposed this week to simplify residence rules for non-EU nationals who live on a long-term basis in the European Union.

The intention is to ease procedures in three areas: acquiring EU long-term residence status, moving to other EU countries and improving the rights of family members. 

But the new measures will have to be approved by the European Parliament and the EU Council, which is made of national ministers. Will EU governments support them?

What is EU long-term residence?

Non-EU citizens who live in EU countries on a long-term basis are eligible for long-term residence status, nationally and at the EU level. 

This EU status can be acquired if the person has lived ‘legally’ in an EU country for at least five years, has not been away for more than 6 consecutive months and 10 months over the entire period, and can prove to have “stable and regular economic resources” and health insurance. Applicants can also be required to meet “integration conditions”, such as passing a test on the national language or culture knowledge. 

The EU long-term residence permit is valid for at least five years and is automatically renewable. But the status can be lost if the holder leaves the EU for more than one year (the EU Court of Justice recently clarified that being physically in the EU for a few days in a 12-month period is enough to maintain the status).

READ ALSO: IN NUMBERS: How many non-EU citizens live in European Union countries?

Long-term residence status grants equal treatment to EU nationals in areas such as employment and self-employment or education. In addition, EU long-term residence grants the possibility to move to other EU countries under certain conditions. 

What does the European Commission want to change?

The European Commission has proposed to make it easier to acquire EU long-term residence status and to strengthen the rights associated with it. 

Under new measures, non-EU citizens should be able to cumulate residence periods in different EU countries to reach the 5-year requirement, instead of resetting the clock at each move. 

This, however, will not apply to individuals who used a ‘residence by investment’ scheme to gain rights in the EU, as the Commission wants to “limit the attractiveness” of these routes and not all EU states offer such schemes. 

All periods of legal residence should be fully counted towards the 5 years, including those spent as students, beneficiaries of temporary protection or on temporary grounds. Stays under a short-term visa do not count.

Children who are born or adopted in the EU country having issued the EU long-term residence permit to their parents should acquire EU long-term resident status in that country automatically, without residence requirement, the Commission added.

READ ALSO: Why it may get easier for non-EU citizens to move to another European Union country

EU countries should also avoid imposing a minimum income level for the resources condition but consider the applicant’s individual circumstances, the Commission suggests.

Integration tests should not be too burdensome or expensive, nor should they be requested for long-term residents’ family reunifications. 

The Commission also proposed to extend from 12 to 24 months the possibility to leave the EU without losing status, with facilitated procedures (no integration test) for the re-acquisition of status after longer absences.

A person who has already acquired EU long-term residence status in one EU country should only need three years to acquire the same status in another EU member state. But the second country could decide whether to wait the completion of the five years before granting social benefits. 

The proposal also clarifies that EU long-term residents should have the same right as EU nationals with regard to the acquisition of private housing and the export of pensions, when moving to a third country. 

Why make these changes?

Although EU long-term residence exists since 2006, few people have benefited. “The long-term residents directive is under-used by the member states and does not provide for an effective right to mobility within the EU,” the Commission says. 

Around 3.1 million third-country nationals held long-term residence permits for the EU in 2017, compared to 7.1 million holding a national one. “we would like to make the EU long-term residence permit more attractive,” said European Commissioner for Home Affairs Ylva Johansson.

The problems are the conditions to acquire the status, too difficult to meet, the barriers faced when moving in the EU, the lack of consistency in the rights of long-term residents and their family members and the lack of information about the scheme.

Most EU member states continue to issue “almost exclusively” national permits unless the applicant explicitly asks for the EU one, an evaluation of the directive has shown.

READ ALSO: Pensions in the EU: What you need to know if you’re moving country

This proposal is part of a package to “improve the EU’s overall attractiveness to foreign talent”, address skill shortages and facilitate integration in the EU labour market of people fleeing Ukraine. 

On 1 January 2021, 23.7 million non-EU nationals were residing in the EU, representing 5.3% of the total population. Between 2.25 to 3 million non-EU citizens move to the EU every year. More than 5 million people have left Ukraine for neighbouring states since the beginning of the war in February. 

Will these measures also apply to British citizens?

These measures also apply to British citizens, whether they moved to an EU country before or after Brexit. 

The European Commission has recently clarified that Britons living in the EU under the Withdrawal Agreement can apply for a long-term residence too.

As Britons covered by the Withdrawal Agreement have their residence rights secured only in the country where they lived before Brexit, the British in Europe coalition recommended those who need mobility rights to seek EU long-term residence status. 

These provisions do not apply in Denmark and Ireland, which opted out of the directive.

What happens next?

The Commission proposals will have to be discussed and agreed upon by the European Parliament and Council. This is made of national ministers, who decide by qualified majority. During the process, the proposals can be amended or even scrapped. 

In 2021, the European Parliament voted through a resolution saying that third-country nationals who are long-term residents in the EU should have the right to reside permanently in other EU countries, like EU citizens. The Parliament also called for the reduction of the residency requirement to acquire EU long-term residence from five to three years.

READ ALSO: COMPARE: Which EU countries grant citizenship to the most people?

EU governments will be harder to convince. However, presenting the package, Commission Vice-President for Promoting our European Way of Life, Margaritis Schinas, said proposals are likely to be supported because “they fit in a broader framework”, which represents the “construction” of the “EU migration policy”. 

National governments are also likely to agree because large and small employers face skill shortages, “especially in areas that are key to our competitiveness, like agri-food, digital, tourism, healthcare… we need people,” Schinas said.

The article is published in cooperation with Europe Street News, a news outlet about citizens’ rights in the EU and the UK.

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