The Swedish government has now published proposals for implementing the citizens' rights provisions of the Withdrawal Agreement (WA). Will it stop the sleepless nights and provide certainty for Brits? Perhaps for most, but certainly not for a while.
The Brits in Sweden group will be submitting a response to the proposal. A few areas of concern are outlined here.
First, a brief run-through of the proposal. Like the UK's Settled Status programme, Sweden's WA implementation would issue temporary (five-year) and permanent residence permits. A Brit who has lived in Sweden for less than five years can get the temporary permit while longer term residents are eligible for permanent residence status.
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A key difference is that the UK waives the EU freedom of movement (FoM) rules used in the WA which require a migrant to have a job, be studying or be self-sufficient.
In principle, the FoM rules should not present a problem. They have governed EU migrants' residence rights for many years. However Sweden, like the UK and many EU countries, has inconsistently enforced FoM rules. Under the WA, Brits will now effectively be given a FoM audit.
While FoM rules contain protections for bumps in the road of life such as unemployment or illness, these are not comprehensive and migrants can find themselves slipping in and out of compliance with FoM law. This isn't a problem for EU migrants as they aren't typically subjected to FoM checks. But Brits who find themselves temporarily non-compliant at the time of application for a residence permit may be turned down.
Also, the prized permanent residence status requires five consecutive years of FoM-compliance. EU migrants are under no obligation to apply for a certificate of permanent residence and so most don't. Of those that do, 20 to 25 percent are turned down.
Since their temporary permits will expire, Brits must apply. They have to be on the FoM straight-and-narrow from the start and stay there for five years. The proposal hints at the possibility of an extension of the temporary permit, though more clarity is needed regarding the rules for an extension and how FoM-compliance will be judged.
Another FoM-related problem is that of registration for residence. Different government agencies can give contradictory advice and it isn't uncommon that it takes a year to get a personal or coordination number.
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The EU SOLVIT body, which helps migrants exercise FoM, has long complained about this. Brits arriving during the transition period may find themselves still unregistered after it ends. The proposal is unclear in how Sweden would treat such an applicant. This would be no problem for an EU migrant in an analogous situation but who has the time to navigate the system.
Failure to comply with FoM laws can thus scupper an application for a Brit under the WA but not affect an EU migrant who must nominally adhere to the same FoM laws. A key message in our response to the proposal is that Sweden should be generous in its interpretation of FoM law.
Another issue concerns the need for an application.
The WA allows countries to choose either an application or registration scheme. In an application model, all rights are lost without a successful application. In a registration scheme, all eligible Brits receive rights automatically. An application is made only for a certificate confirming these rights. The vast majority of Brits would anyway be likely to apply quickly to prove their status at, for example, a passport control.
Furthermore, a registration scheme protects the most vulnerable who otherwise may risk missing a deadline. The proposal cites the UK's choice of an application model as a motivation for Sweden doing likewise.
But Sweden, unlike the UK, has a reliable central population database. Swedish government agencies know when Brits arrive, what they do and where they live. There seems to be no strong need for Sweden to choose an application model for the WA, not least since FoM laws are ordinarily implemented in a registration system.
As for the cost to Brits at a personal level, the sleepless nights won't be ending soon.
It is planned that applications can be submitted to the Migration Agency from December 1st, 2020, with a deadline of September 30th, 2021. However, many Brits in Sweden have lived in limbo since 2016; they need a resolution.
Delays will further deepen the stress and mental health problems caused by Brexit uncertainty. Whilst an earlier start date is unlikely, every effort should be made to minimise the processing time at the Migration Agency.
Lest it be thought that Brits in Sweden are demanding special treatment, they won't be able to obtain a residence permit until almost two years after Swedes in the UK have been able to secure their status (under a scheme which waives the FoM rules).
Furthermore, all EU countries signed treaties enabling and encouraging FoM. They then signed the Lisbon Treaty, which provides a mechanism for a state to leave without even basic guarantees that citizens who had exercised FoM could stay in their homes. Both the UK and the EU have a responsibility to sort out this problem and to do so generously.