Fundamental decisions on workforce planning and NHS funding hinge on the right deal being struck on citizens' rights.
The rights of 3.2 million EU citizens living in the UK and 1.2 million UK nationals living in EU countries were widely discussed at the third round of Brexit negotiations.
Both the UK government and EU have emphasised that finding an agreement that allows EU citizens legally residing in the UK, and UK nationals in the EU, to remain residents after Brexit is a top priority. But while both parties agree on the main principles, several legal details and issues have yet to be discussed and agreed.
This is a complex area which concerns a range of different rights – including the right to reside, work, social benefits, pensions, healthcare – and the recognition of diplomas and qualifications, among others.
Progress or stalemate?
Encouraging progress has been made about the rights of people currently living and/or working in other member states and benefiting from entitlements based on existing EU law. But there remains a gulf between the EU, which wants to finalise a deal about existing right-holders first before moving on to discuss a future deal, and the UK, which wants to extend the scope of negotiations to encompass future arrangements in several areas.
One of the most difficult areas to be resolved is the enforcement system that will apply to these rights. The UK insists British courts must enforce the agreement in the UK, while the EU wants the European Commission to monitor the deal and the European Court of Justice – or an equivalent body following ECJ rules – to enforce it.
With the UK government having repeatedly said Brexit must mean leaving the jurisdiction of the ECJ, this is clearly going to be one of the main sticking points. And it remains to be seen whether a compromise can be reached.
Finding an agreement on citizens’ rights as a matter of urgency is vitally important for the NHS, both for our current and future workforce, and for planning the services that depend on them. Here’s why.
Keeping our EU staff
We urgently need to provide reassurance to the 165,000 EU staff who work for the health and social care sector in the UK, and who are anxious about whether they will be able to remain in the future and under what conditions.
Our EU workers are highly valued and play a key role in delivering care to our patients. We have a moral duty to clarify their rights as a matter of urgency and to do our best to ensure they can continue to live and work in the UK.
One sticking point in the negotiations is the cut-off date for EU nationals to be able to get ‘settled status’ in the UK. The EU insists this should be set on exit day, while the UK prefers an earlier date to be set at some point (yet to be defined) between 29 March 2017 (date of the Article 50 notification) and 29 March 2019 (exit date).
The procedure to be followed by EU citizens requesting ‘settled status’ is another point of disagreement, with the EU wanting to stick with current EU procedures and for a single process to cover all family members, while the UK wants to vet individual applications for each family member.
Another important aspect of the negotiations for the NHS is whether qualifications obtained by healthcare professionals in the EU will continue to be automatically recognised in the UK. And, if so, whether only qualifications obtained before Brexit will be recognised or if the right to automatic recognition will be extended to those still undergoing a medical or nursing degree at the moment the UK leaves the EU, or who will qualify at some future point.
This has important implications for NHS workforce planning, as the current system cuts red tape and speeds up the rate at which the health service can recruit staff from the EU.
Keeping patients’ rights to receive healthcare abroad
A decision on citizens’ rights is also important for the planning and funding of NHS services. There are currently 190,000 UK pensioners living in the EU who have the right to receive healthcare on the same terms as the local population, thanks to EU reciprocal healthcare arrangements. If these arrangements are to be discontinued, this would mean that planning and funding provisions must be made in the NHS for these citizens.
Both the EU and UK want these arrangements to continue, as they are mutually beneficial. Encouragingly, consensus was reached during last week’s negotiations that UK nationals permanently resident or staying temporarily in an EU member state, and vice versa, on exit day should continue to be eligible for reciprocal healthcare arrangements. This would include, for instance, UK pensioners, workers and students in the EU at the moment of Brexit, and vice versa.
While this is an important step in the right direction, it does not resolve the issue of future health cover for UK holidaymakers to the EU post-Brexit, who can currently use the European Health Insurance Card (EHIC) to access necessary healthcare during their stay under the same conditions as the local population.
Indeed, the UK government’s request for reciprocal healthcare arrangements to be extended to also cover those citizens who have not crossed the border by Brexit day was rejected by the EU negotiators. This was done on the grounds that such issues are not within the scope of current negotiations, which should focus solely on the terms of withdrawal. Only once the exit terms are clear can the next phase of talks turn to negotiations on a future EU/UK trade agreement which would cover citizens’ rights after Brexit.
Overall, significant progress has been made on various aspects of citizens’ rights during this third round of Brexit talks, but there are still many important issues to be debated and agreed.
A deal must be struck as soon as possible not only to bring the uncertainty and anxiety of many citizens, both in the UK and the other EU member states, to an end, but also to enable the NHS to move forward and plan with greater certainty future services and the workforce needed to staff them.
Elisabetta Zanon is director of the NHS European Office, part of the NHS Confederation, and a member of the Brexit Health Alliance and Cavendish Coalition. Both groups are at the forefront of efforts to ensure the health and care sector, its patients and staff are in the strongest position possible as the UK prepares to leave the EU.
Follow the NHS European Office on Twitter @NHSConfed_EU
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