What Does Exercising Your Treaty Rights Mean?
Buried beneath Covid-19 headlines this week was a notable consequence related to 30 June. This was the deadline for the UK government to request an extension to the transition period between Britain and the European Union (EU). So, deal or no deal (and it is increasingly looking like the former), the UK will be entirely out of the EU on 31 December 2020. All existing trade deals we enjoy through our membership, freedom of movement, access to the European Court of Justice, not to mention millions of euros in EU funding will be consigned to the history books. Furthermore, the term ‘exercising your Treaty rights’ will no longer apply to UK citizens (unless they are dual citizens of another EU member state).
But what does it mean to exercise Treaty rights? This article will demystify the term.
But first, we need to look back to the formation of the European Union to understand how the rights evolved.
A Project for Peace
For as far back as the history books go (and beyond) Europe has been in an almost constant state of war. Until very recent times, the question asked by Kings (and the odd Queen) was not “should we go to war” but “who shall we invade now?”
The calamity of the Second World War resulted in some European countries uniting to prevent such a horrendous event occurring again. Recognising that the only way to achieve lasting peace was through economic dependence, the Council of Europe was founded in 1949. Ironically, Winston Churchill, former Prime Minister of the UK, advocated for the United States of Europe to be formed. Seventy years later, the horror of an ever-closer EU resulted in Britain voting to leave the bloc.
In 1950, Belgium, France, Germany, Italy, Luxembourg, and the Netherlands created the European Coal and Steel Community to bring about greater economic co-operation between the countries. Then on 25 March 1957, the Treaty of Rome was signed by Belgium, France, Italy, Luxembourg, the Netherlands, and West Germany. This was the founding document of the European Economic Community, the predecessor of the EU. It created a customs union between the states and the Common Agriculture Policy, a Common Transport Policy, and a European Social Fund, and established the European Commission.
The four freedoms
The Treaty of Rome established the following four freedoms which form the bedrock of the EU:
Article three of the Treaty states: “The activities of the Community shall include.. . the elimination, as between the Member States, of customs duties and of quantitative restrictions on the import and export of goods.. .; the abolition, as between the Member States, of obstacles to freedom of movement for persons, services, and capital.”
Freedom of movement became a ‘right’ of EU citizens under the Treaty of Rome. Wolfgang Münchau an associate editor of the Financial Times, wrote in 2017:
“UK Prime Minister Theresa May’s infamous “citizens of nowhere” remark explained the Brexit mentality better than anything else because in the EU you are always a citizen of your home state and of the union itself, no matter where you live. This is the very essence of Europeanness. There is a political and economic logic behind the unity of the four freedoms. They constitute the ultimate trade-off in EU politics. The EU’s strength is to mediate between conflicting interests — large countries versus small, producers versus consumers, employers versus employees. While the roots of the old EEC were economic, as the name implied, it required a political and social component to keep it going. As a club of producers, the EU would not have survived for long. Freedom of movement provided workers who were mobile with the ability to raise their income in other parts of the union. It also acted in a small way as a macroeconomic stabiliser.”
The Essence of Freedom of Movement Treaty Rights
Contrary to popular belief, freedom of movement does not allow EU citizens to enter a country and stay there unconditionally. Visa-free travel is permitted for three months; however, after this period, you must be exercising a Treaty right. These are:
- The right to work in another EU member state;
- The right to be self- employed,
- The right to study; and
- The right to be self-sufficient.
EU citizens also have the right to be seeking work in another EU state.
The above are pre-existing rights, not privileges. Neither a passport nor an EU residency document, such as an EU Residence Permit, itself confers any rights; they merely evidence that the rights are held.
Settled and Pre-Settled Status in the UK
As mentioned at the beginning of this article, the UK’s transition period with the EU will be over at the end of this year. EU nationals who are currently living and working in the UK and want to remain must apply for Settled or Pre-Settled Status. For many, this will be the first time they have ever had to register the fact they are living in the UK. This is because, although prior to Brexit, an EU national could have applied for an EU Residence Permit, there was no legal requirement to do so. Furthermore, it is worth repeating that such a permit only acknowledged existing Treaty rights; it did not confer the rights themselves.
Settled and Pre-Settled Status is different. Because EU Treaty rights will no longer apply in the UK when it becomes a non-EU nation, those who have not applied for and been granted Settled or Pre-Settled Status have no legal right to reside in the country. It makes no difference if you have been here five years or fifty – if you have not applied for Settled or Pre-Settled Status before the deadline expires (30 June 2021), you can be deported to your home country. Unlike EU Permanent Residence, Settled and Pre-Settled Status does confer rights on the holder – the right to live and work in the UK free from visa restrictions – the rights that will end on 30 June 2021 for those in the UK and 31 December 2020 for EU citizens outside the country.
Regardless of how long you have been exercising your EU Treaty rights in the UK, obtaining Settled or Pre-Settled Status should now be top of your ‘to-do’ list. If you have any concerns about making your application, talk to experienced immigration solicitors.
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