Brexit phase one report: what it means for HR

Read about the key implications of the report on progress between European Union and the United Kingdom on phase 1 of Brexit negotiations

The Joint Report issued on 8 Dec 2017 begins by highlighting that nothing is agreed until everything is agreed, and does not prejudge any adaptions deemed to be appropriate in future discussions.

From a HR perspective, there are important areas of progress on citizens’ rights and the Ireland and Northern Ireland relationship, which directly impact Ireland’s labour market.  What is proposed, if it survives the phase two negotiations, generally allow for the protection of citizen rights for those currently residing in the EC and UK up to the date of departure or the ‘specified date’. The ‘specified date’ refers to the date of the United Kingdom’s withdrawal from the Union, without prejudice to a possible transitional period.

One of the biggest concerns of CIPD Ireland members remains the free movement of people between Ireland and Northern Ireland. The Report seeks to protect the gains of the peace process and the Good Friday Agreement, reduce the risk of a hard border, maintain existing bilateral arrangements, including the Common Travel Area which allows for free movement of people. Below are a number of specific points in the Report for HR to note.

On citizens’ rights, concerning where people live and work:

  • The Report protects citizens’ rights to enable both EU citizens and United Kingdom nationals, as well as their respective family members, for the rest of their lives, to continue to exercise their rights derived from EU law in each other’s territories, where those rights are based on life choices made before the ‘specified date’ of departure. UK citizens already here will be able to remain and work here, and EU citizens already in the UK, will be able to remain and work there.
  • It prohibits discrimination on grounds of nationality when such a citizen resides in a host State.
  • Additional specified family members, including partners in durable relationships, will be entitled to join family members.
  • There can be a requirement for individuals to obtain rights of residence, and the criteria and procedures must be proportionate, transparent and streamlined, giving at least two years to apply.
  • Social security coordination rules will remain in place, recognising relevant periods up to the ‘specified date’. The European Health Insurance Card (EHIC) and healthcare reimbursement will continue for EU citizens in the UK and vice versa on the ‘specified date’, as long as that stay, residence, or treatment continues.
  • Equal treatment will apply including rights of workers, self-employed, students and economically inactive citizens with respect to social security, social assistance, health care, employment, self-employment, education and training, social and tax advantages (within the limits of Articles 18, 45 and 49 TFEU, Article 24 of Directive 2004/38/EC and Regulation (EU) No 492/2011).
  • Recognition of already regulated professions (e.g. lawyers and auditors) will be grandfathered to protection entitlements / permissions already granted on the ‘specified date’.
  • The EU and UK agreed that these citizens’ rights outlined will be given legal effect in both the EU and the UK.
  • In interpretation of rights, the UK courts will have due regard to the relevant decisions of the Court of Justice of the EU (CJEU), and will have a mechanism to ask the CJEU questions of interpretation.

On Ireland and Northern Ireland

Both parties agreed to protect the 1998 Good Friday Agreement, the principle of consent and its practical application to the island of Ireland, and the UK reinforced its commitment to the avoidance of a hard border, including any physical infrastructure or related checks and controls. The Report states the UK’s intention to achieve this through the overall EU – UK relationship, and if not the UK will propose specific solutions on this, while ensuring no new regulatory barriers develop between Northern Ireland and the rest of the UK. 

The UK respects Ireland's ongoing membership of the EU and our place in the Internal Market and the Customs Union and will continue to support North-South and East-West cooperation across the full range of political, economic, security, societal and agricultural contexts. These commitments do not predetermine the outcome of wider discussions on the future relationship between the EU and the UK. However as they are specific to the unique circumstances on the island of Ireland, they must be upheld in all circumstances, irrespective of any future agreement between the EU and UK. 

Both Parties acknowledge that the 1998 Agreement recognises the birth right of all the people of Northern Ireland to choose to be Irish or British or both. The people of Northern Ireland who are Irish citizens will continue to enjoy rights as EU citizens and the next phase of negotiations will examine the arrangements to give full effect to this, including upholding all EU protections against discrimination. 

The Report recognises that the UK and Ireland may continue to make their own arrangements relating to the movement of people in the Common Travel Area. The UK confirmed that the Common Travel Area and associated rights and privileges can continue to operate without affecting Ireland’s obligations under EU law, in particular with respect to free movement for EU citizens. 

The implications of this will be to ease travel within the island of Ireland and facilitate the travel of Irish residents to the UK and vice versa.

Financial settlement

The parties agreed a methodology for the financial settlement. No figure is given in the Report, however it outlines the methodology for calculating the component elements. The UK will continue to participate in the EU’s Multiannual Financial Framework (MFF) to 2020, which includes funding programmes to support competitiveness and growth. The UK has stated that it may wish to participate in some Union budgetary programmes of the new MFF post-2020 as a non-Member State. 

The above elements of the Joint Report are a package, except for the specific cast iron guarantees regarding Northern Ireland, and may be upheld or amended during phase two negotiations.

Read the full report