loss of eu citizenship and uk staff
The United Kingdom left the European Union at midnight on 31 January 2020 and UK nationals lost their EU citizenship. A sad moment for European integration. A significant event for EU citizenship, where 66 million EU citizens became third-country nationals overnight. The Commission has treated the event clinically. UK nationals outside of the Commission have however been active: there are now two cases before the Court of Justice which challenge the loss of EU citizenship rights: Case T-252/20 Silver and others v Council (direct action before the General Court); and a preliminary ruling from a French court before the Court of Justice, challenging the overnight loss of municipal election voting rights.
What about UK staff working in the Commission?
Despite the position of a certain large Member State that the Commission should make its UK staff redundant, the Commission under President Juncker recognised that UK staff had left their national hats at the door when they joined. (It also perhaps knew its translation, editing and interpretation services would be decimated, if UK staff were dismissed en bloc). This policy was formalised in a Commission decision of 18 March 2018, allowing UK officials in post on the date of Brexit to stay. Commissioner Oettinger also outlined a process to be put in place for contractual staff where their contract could continue beyond the end of the transition period based on a case-by-case assessment (see more below). The staff regulations would be interpreted in a “European Spirit”, he confirmed. In January 2020, President von der Leyen and Commissioner Hahn importantly confirmed that the Juncker Commission policy vis-à-vis UK staff would continue.
What changes for UK staff within the Commission after the end of the transition period?
As the end of the transition period approaches on 31 December 2020, TAO-AFI offers its support to UK staff in the Commission. We know there are changes ahead for you and your family: both within and outside the Commission.
Within the Commission, UK colleagues, now much reduced in numbers, have faced many challenges and continue to do so. While Commissioner Oettinger referred in 2018 to a process for establishing conflict of interest for UK staff to take on a particular post or task, this process has not been established. Instead there is a lack of transparency and divergent approaches. There is a general unwritten rule that UK staff cannot negotiate Brexit with the UK or be members of UKTF; there remains however a lack of clarity on whether UK staff can work on issues loosely related to Brexit, or on parallel matters being handled with other third countries. Promotion of UK staff up the management chain has largely ended. UK staff serving in EU delegations have been required to return to Brussels where they now must carry out duties often unsuited to their experience and competences. These are uncomfortable issues that Commission senior management prefer not to talk about. TAO-AFI believes that greater transparency and written rules would help. Let’s be more upfront about the difficulties Brexit causes us internally and personally for UK staff.
As for UK staff who are temporary or contract agents, according to information still on the Commission’s Intracomm, they will, after the end of the transition period, face the uncertainty of a case-by-case assessment as to whether their contracts can be continued/renewed. TAO-AFI awaits the publication of the “set of clear criteria” promised for this exercise. In addition, TAO-AFI will hold the Commission to its published undertaking that the assessment “will be performed with due respect for the right to be heard”. TAO-AFI will also support the possibility for UK contract staff to continue to be able to move posts within the Commission. Clarity on this matter is needed.
Life outside the Commission for UK staff after the end of the transition period
Many UK staff have of course acquired another Member State nationality to facilitate everyday life in the EU. Some of them even gave up their entitlement to the Commission expatriation allowance to do so. Unfortunately, some staff with special identity cards (or who have been living in third countries) still face difficulty in acquiring a new nationality. In Belgium, the Belgian authorities will not accept that residence pursuant to a special identity card constitutes residence for the purposes of acquiring Belgian nationality. An appeal brought by Eurocontrol staff to the Flemish Hof van Cassatie on this matter is still ongoing.
In general, UK staff have been advised to give up their special identity card and to register their residence in their state of residence in accordance with the usual EU free movement rules (which still apply during transition until 31 December 2020).
What about continuing residence rights for UK staff after the end of the transition?
DG HR advised UK staff in May that the special identity card will be sufficient to show legal residence in their EU state of work after the end of the transition period. This advice however completely omitted any reference to the procedures under the Withdrawal Agreement for UK staff and for staff who had in any event given up the special identity card. This information gap has now been remedied by the Network of UK Staff, which recently sent an email to UK staff, explaining the procedures for establishing residence rights under the Withdrawal Agreement (eg. in Belgium wait to be contacted in the course of 2021 by the Belgian authorities; in Luxembourg applications for the new residence status have been open since June 2020). UK staff are recommended to obtain the new Withdrawal Agreement biometric residence card for themselves and their families (see Articles 18(1) and (4) of the Withdrawal Agreement and Commission Implementing Decision C(2020) 1114 final). In general terms this card is equivalent to the existing residence card for third-country nationals in the EU, which also facilitates entry to and movement within the Schengen zone.
It remains unclear at a practical level, however, whether national authorities will reach out to UK staff with special identity cards and offer them the Withdrawal Agreement biometric residence card. This reflects an apparent gap in the Withdrawal Agreement, which did not make explicit provision for residence rights of staff of international organisations. Similarly, there is a gap affecting UK staff, who decide to return to the UK with their EU or non-EU citizen spouses after March 2022: they face uncertainty as the Withdrawal Agreement did not make provision for the return of family members to the UK; the so-called “Surinder Singh” rules for EU migrant workers have not been protected; and the UK will be free to apply its standard immigration rules!
TAO-AFI therefore calls on colleagues to show solidarity with UK staff. They did not vote for Brexit; they left their national hats behind to support the project of European integration; and the personal price paid by many of them is already high. Show support and ensure the Institutions’ rules are at least clear on what is happening to them!