January 2019

(The following document is dated because it is a work in progress and only represents the current situation at this time.   As and when we get more updates we will update and re-publish this web page)

British citizens , the Withdrawal Agreement (WA) & the Italian government’s outline proposals for a No Deal.

At midnight on 29th March 2019, British citizens resident in Italy will lose EU citizenship and with it, all their EU rights that have allowed them to live and work legally in Italy. On 20th December 2018, officials representing the Italian government met with BiI to outline the government’s proposals to protect some of our rights, including the fundamental right to legal residence and to continue to work in the event of a No Deal Brexit.

Background

The EU and Britain reached an agreement in November 2018, the potential Withdrawal Agreement (WA), on the rights that will be substituted for our EU rights if, and that is a big if, the agreement is approved by the British parliament. There currently seems little chance that it will be approved  – May pulled ‘her Deal’  from a parliamentary vote in early December and proposes for the Bill to return to parliament sometime in the week of 14 January 2019. However,  the government  does not have the numbers in parliament to approve it. The Conservative party remains extremely divided over Brexit (4 ministers resigned as soon as the agreement was made public), the Northern Irish DUP which sustains the government has repeatedly said it will vote against the Deal, as has the Labour Opposition.

Under the WA, British citizens in Italy , and across the EU, would continue to enjoy the majority of the rights  they currently have as EU citizens – legal residence with the right to work, to carry on a profession, to run or set up a business, to contribute to or receive a pension, to access the health system, to attend school or university etc. They would however lose the right to freedom of movement – a major loss for many who have spent their working life in different EU countries or who provide services across EU borders.

If the WA is rejected by the British parliament,  and either  the Article 50 notice is not withdrawn or other concrete steps to delay Brexit are not taken, on 29th March 2019 Brexit is a No Deal Brexit.

Our rights in Italy – NO DEAL SCENARIO

On 20th December 2018, officials from the Italian government met with BiI and outlined (briefly) their proposals to protect some of our rights including – fundamentally – our right to legal residence in the event of a No Deal. It is proposed to enact legislation to create a two-stage process – the first stage being a temporary period of a few months during which all those legally resident will maintain their existing rights whilst the second stage will enable re-registration as Third Country Nationals (TCN).

The table below sets out briefly in the left column our existing EU rights as at 29th March 2019 and those that will be preserved if the WA is ratified, and in the right column the proposed TCN rights (in so far as they are known) that will apply from 30th March 2019 onwards in the event of a No Deal Brexit.

The Italian government’s current outlined proposal on TCN status and rights reflects closely what the EU Commission proposed on 13th November and 19th December 2018 as the approach to be adopted by all EU27.

This table reflects the position as of January 2019. It will be updated as and when new information and details become known to us.

 

EU RIGHTS UP TO MIDNIGHT 29TH MARCH 2019
VS
WA RIGHTS THEREAFTER
NO DEAL PROPOSED TCN RIGHTS FROM 30TH MARCH 2019 ONWARDS
GENERAL
All the rights of EU citizens to residence, work, health, education etc.

The WA preserves the majority of these rights, the major exception being the all-important right of freedom of movement, leaving UK nationals resident in the EU ‘landlocked’ in their EU country of residence/work on 29th March 2019.

GENERAL

The Italian government proposes to legislate to create a ‘grace period’ of about 6 or 9 months (or longer) beginning on 30th March 2019. During this period British citizens legally resident in Italy on 29th March 2019 will continue to have most of their existing EU rights. This will happen automatically, but will only benefit British nationals who have, by March 29th, registered or applied to register their residenza or soggiorno permanente at the Anagrafe under EU law (something most of us will have done anyway as it is a legal requirement).

The purpose of the grace period is to enable us to apply to register as a TCN resident relying substantially on the EU’s TCN Long Term Residence Directive 2003/109.

The extent to which some of the specified conditions for obtaining TCN Long Term Residence under EU Directive 2003/109 will be imposed or waived is still to be clarified. It is not known how UK citizens with less than 5 years residence will be fitted into the TCN scheme, though BiI has been told that they will be covered.

The Italian government proposes to legislate so that rights to healthcare, work etc. replicate as far as possible the WA terms. But government officials also made clear that some aspects may well depend on ‘reciprocity’ with the UK.

Italian government officials have specifically stated that the government does not want British nationals to apply to re-register prior to 29th March 2019.

WHAT FOLLOWS IN THIS COLUMN LOOKS ONLY AT THE RIGHTS BRITISH NATIONALS WILL HAVE AFTER THE GRACE PERIOD
RESIDENCERESIDENCE
There is no general recognition of types or categories of 1. Legally resident if registered with local comune on the Anagrafe (Italian requirement giving effect to EU Directive 2004/38/EU)

NB. Those who can should apply for residence before 29th March 2019

WA rights: legal residence preserved.

Italy is adopting the much simpler declaratory procedure under Article 18.4 WA rather than a complicated re-registration process.
1. Proposed legislation under which British nationals who have applied during the grace period have rights of residence as TCNs thereafter.

Existing periods of legal residence will count towards the 5 years legal residence required to obtain Long Term Residence under Directive EU/2003/109

It is uncertain as to whether those with less than 5 years residence will, during the period leading to the 5 years total, continue to need proof of -
a) health insurance or an S1 (if not working). Whether the S1 will continue is unknown as it largely depends on UK agreeing to continue it.
b) Minimum income (currently level of assegno sociale – circa €5889,00 for single person and circa €11.661,52 for married couple)
c) Appropriate accommodation
(a), (b) & (c) above are the current basic requirements to be met when applying for residence as an EU citizen in Italy.
2. Permanent resident with ‘attestazione di soggiorno permanente’ per i cittadini EU (available on application after 5 years legal residence) – EU Directive 2004/38/EU;

In Italy, an application for ‘soggiorno permanente’ has been optional. Many UK citizens, legally resident for many years, have never applied.

NB. Those who can should apply for a ‘soggiorno permanente’ before 29th March 2019

WA rights: same as above
2. Proposal to grant a ‘permesso di soggiorno per soggiornanti di lungo periodo’ in accordance with EU Long Term Residence Directive for TCNs to British nationals who already have 5 years legal residence (EU Directive 2003/109/EU); TU Immigrazione – DLgs 286 del 25.7.1998 articolo 9. This is in line with EU Contingency Plan December 2018.

Proposal (but subject to further clarification) not to require British long-term residents to comply with current EU Directive 2003/109 pre-conditions of –
a) Health insurance (Article 5(1)(b) EU2003/109)
b) Minimum income requirement (currently higher for families than that required to obtain residence as EU nationals) EU2003/109 Article 5(1)(a); TU Immigrazione – DLgs 286 del 25.7.1998 articolo 9.
Other pre-conditions required under EU Long Term Residence Directive 2003/109 that have not been expressly referred to by Italian government officials include -
a) Italian language test (Article 5(2) EU 2003/109)
b) No single absence from Italy of more than 6 months in preceding 5 years
c) No cumulative absences from Italy of more than 10 months in preceding 5 years
(see Article 4(3) EU/2003/109)

It is unknown whether any of (a) to (c) above will be required to be met.
It is not known whether and/or how the EU Single Permit Directive (EU Directive 2011/98/EU) for TCN workers and their families, the ‘Blue Card’ system for highly skilled TCNs (EU Directive 2009/50/EU) and other specific directives for TCN scientific researchers, students, seasonal workers etc. will impact on specified categories of British nationals already resident.

Most likely they will apply as appropriate to anyone arriving after 29th March 2019, including habitual seasonal workers.
CAR OWNERSHIPCAR OWNERSHIP
As a legal resident, the right to own a car or other vehicle.
Car insurance validity is also subject to being legally resident.

WA rights: as above
The validity of car ownership and car insurance would continue under the new proposals – in so far as they are dependent on legal residence.
HEALTHCAREHEALTHCARE
As a legal resident the right to access the health system (SSN) on the same basis as Italian citizens – during first 5 years either through possession of health insurance if not working, or S1 certificate (equivalent to health insurance for pensioners) or through work as a self-employed or employed worker contributing to INPS - Regulations (EC) n. 883/2004 and 987/2009.
WA rights: as above
Italian government proposes to continue access to healthcare for all British residents – in so far as possible replicating WA terms.

It is not known whether the SI scheme for pensioners’ healthcare will continue. The British government has announced it intends to continue the scheme until 2019/20 (whether that is the UK tax year 2019/20 or the complete calendar year 2020 is not yet known). It is more a matter for the UK government rather than the Italian. But if it does not continue, it is not yet known what health provision will be available for pensioners with less than 5 years residence in Italy.

Employed and self-employed British nationals will continue to access SSN on the same or substantially the same basis as at present.
1. The full panoply of rights available to EU citizens – both as independent and dependent worker – EU Directive 2004/38/EU.

WA rights: as above save that the loss of freedom of movement rights means the right to cross-border work is only available in the country(ies) in which one is working as at 31.12.20 (end of Transition period); seasonal working is not available to British nationals
1.The basic right to work will be maintained.

No details are available as to how the proposed No Deal legislation will affect employed and self-employed people but Italian government officials have said that the new legislation will replicate in so far as possible the employment/self-employment rights in the WA.

There will be a loss of cross-border and seasonal working rights due to the loss of freedom of movement rights (see below).
1. The same right to set up and to maintain a business as Italian nationals – TFEU Article 49 (Treaty on the Function of the EU)

WA rights: as above
2.The Italian government’s intention is to ensure current business activities will and can be legally maintained.
No details are available as to how this will be achieved – beyond the basic right to legal residence and right to work.

Although the right of TCNs to set up and run businesses are is frequently based on reciprocal arrangements between Italy and the TCN’s country of origin, Italian government officials have said that British nationals should continue to be able to run businesses, and that those rights will replicate in so far as possible those in the WA.
RIGHT TO FAMILY REUNIONRIGHT TO FAMILY REUNION
All EU rights applicable to family reunion – including the right to be joined by TCN spouses, partners of registered partner relationships, children and grandchildren under 21 or if dependents, and parents and grandparents if dependents. EU Directive 2004/38 Articles 2, 3

WA: as above except for the right to be joined by a future spouse which will be lost
The proposals will include rights to family reunion – but the extent of such rights are yet to be identified.

EU Directive 2003/86 on Family Reunion is generally applicable to TCNs . The minimum required is that at least one family member has got a residence permit for at least a year and a reasonable prospect of permanent residence. There are some restrictions on who constitutes a family member. The TCN resident applying must show –
a) Adequate/appropriate accommodation
b) Minimum income calculated according to various multipliers of the basic assegno sociale
c) Health insurance for the joining family members
TU Immigrazione – DLgs 286 del 25.7.1998 articolo 29,comma 1, comma 2, comma 3
PENSION / SOCIAL SECURITY CONTRIBUTIONSPENSION / SOCIAL SECURITY CONTRIBUTIONS
All EU rights to aggregate social security and pension contributions made in any EU country throughout working life – TFEU Articles 18, 21, 45 and 49; Article 24 of Directive 2004/38/EC; Regulation (EU) n. 492/2011 ; Regulation (EC) n. 883/2004;
WA rights: as above
Italian government proposes to legislate to preserve rights to pensions and to social security benefits but it is unclear how aggregation of pension contributions between UK and Italy will work. For those with EU27 wide pension contributions made up to 30th March 2019, it is likely that aggregation of contributions in accordance with Regulation (EC) 883/2004 will be applied to British nationals already retired or retiring in the future after Brexit.
See also EU Contingency Plan December 2018.
It is unclear how and to what extent social security provisions in the Directive EU 2003/109 will be applied post-30th March 2019.
For example, Article 11(4) allows EU states individually to legislate locally to limit access to social security core benefits only.
UK pensions paid with annual uplift

WA rights: pension uplifts included
UK pensions will be paid but they may not include any aggregation of contributions made when working in other EU countries.
It is not known whether the UK will pay the annual pension uplift. The UK has so far only guaranteed to pay increases up to the year 2019/20, and has said it would like to continue to do so for UK citizens living in the EU “subject to reciprocity”, a term which is hard to understand. It has not made clear whether it will pay increases to Italians and other EU citizens who get UK pensions but have returned to their countries of origin or another EU27 country.
If a British citizen has made sufficient contributions in Italy to qualify for an Italian pension, it should be paid.
RECOGNITION OF QUALIFICATIONSRECOGNITION OF QUALIFICATIONS
All rights to the EU mutual recognition of qualifications – professional, trade, academic etc. TFEU Articles 45 & 49;

WA rights: With few exceptions the professional qualifications of any individual who already has obtained a ‘recognition decision’ of her or his qualifications prior to 31st December 2020 (end of the Transition Period) or who has a decision pending on that date, will be recognised
With few exceptions the EU/UK have both announced they will continue to recognise the professional qualifications of any individual who already has obtained a ‘recognition decision’ of her or his qualifications prior to 29th March 2019.

The Italian government has not expressed a contrary view but it is unknown as to how and to what extent the provisions for recognition of qualifications in the TCN Long Term Residence Directive EU 2003/109 will be applied – Article 11(c).
There is no general recognition of types or categories of qualifications, and individuals applying after 31st December 2020 for a ‘recognition decision’ will have to satisfy Italian rules.There is no general recognition of types or categories of qualifications, and individuals applying after 29th March 2019 for a ‘recognition decision’ will have to satisfy Italian rules.
SCHOOLING / UNIVERSITYSCHOOLING / UNIVERSITY
EU rights to schooling - Children have an automatic right to schooling within Italy – whether illegal migrants or not – TU Immigrazione – DLgs. 286 del 25.7.1998 articolo 38
and/or to attend university – including any university in EU.

WA rights: as above
Proposed retention of right to attend university in Italy.
We don’t yet know whether the right to attend university in any other EU 27 country will be governed by TCN rights under directive EU2003/109.
FREE MOVEMENT WITHIN THE EUFREE MOVEMENT WITHIN THE EU
All EU rights to free movement, including the right to work, to health care, to family reunion etc throughout the EU – TFEU Article 21

WA rights: no right to freedom of movement; that includes no right to cross border work outside of country of residence unless so working as at 31st December 2020; no right to seasonal work outside country of residence
It is not known whether and/or how the EU Single Permit Directive (EU Directive 2011/98/EU) for TCN workers and their
The TCN Long Term Residence Directive EU 2003/109 does give specific rights to move within the EU for work and other purposes. But if the TCN Long Term Residence status has been granted by a country applying more generous national provisions than those provided for under Directive EU 2003/109, then EU 2003/109 rights to ‘free movement’ are not available – Article 13

The Italian government’s proposal to grant British nationals TCN status akin to that under Directive EU 2003/109 but without having to meet some, at least, of the specific conditions under the Directive will mean that British nationals resident in Italy will lose the TCN rights of free movement under EU2003/109 – unless the EU proposes to legislative changes or individual EU countries come to some other agreement.
If British citizens are granted some form of legal residence by the Italian government, they will be entitled to move freely through Schengen areas without visas but will have no right to work, reside etc.