Author: City Legal

UK must agree implementation period for EU migration curbs – Lords committee

The European Union and Britain offered few compromises at their first full round of Brexit talks which ended on Thursday, and the pound fell on worries that British ministers were prepared to walk away without a deal.

While negotiators laid out their disagreements in Brussels, Prime Minister Theresa May met company bosses at home, with one employers’ group saying her government needed to engage in “sustained and structured” discussions with business over Brexit and avoid an abrupt departure from the bloc. Separately, academics warned of “widespread, damaging and pervasive” costs if Britain failed to reach at least a transitional trade deal with the EU before its scheduled departure from the bloc less than two years from now. At the European Commission, the negotiators laid out their opening positions in four days of talks that showed some common ground. But they also confirmed differences over how to protect the future of expatriate citizens, while uncertainty persisted over a financial settlement and the future of the Irish border, which will become an external frontier for the EU in 2019.

Chief EU negotiator Michel Barnier said there was “a fundamental divergence” on how to protect the rights of EU citizens living in Britain and of Britons in the remaining 27 EU countries after Brexit. He said European courts should guarantee citizens’ rights after Brexit. “Any reference to European rights imply their oversight by the Court of Justice of the European Union,” he told a joint news conference with British Brexit Secretary David Davis. Britain, however, says people voted in last year’s Brexit referendum to end shared EU sovereignty, and its judges should therefore have jurisdiction.

Davis said the meetings in Brussels had provided “a lot to be positive about”. But when asked if Britain would accept the principle of a net payment from London to Brussels – and not vice versa as some British ministers have suggested – he gave no direct answer. Barnier called on Britain to clarify at the next round of talks in August how it would maintain a common travel area with the Republic of Ireland, which will remain in the EU.

Both sides have said they want to avoid reimposition of border controls between the republic and British-ruled Northern Ireland. However, so far neither has proposed a solution to an issue that remains sensitive almost two decades after a peace deal ended years of violence in the province.

Full story can be read here

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Wrong Brexit immigration policy could leave north-east industries without a workforce

The Under-Secretary of State for Scotland said he had grave concerns for the north-east’s fish processing, soft fruit and seasonal farming sectors, which rely heavily on EU nationals.

Lord Duncan said there needed to be more focus on how to allow EU nationals to continue to work in the north-east of Scotland after Brexit. He said: “The area I have most concern about is the EU nationals question, particularly on the fish processing side, where upwards of 90% of workers are EU nationals. These are challenging but very well-paying jobs but they are not attractive jobs and so they are filled with migrants in places like Peterhead.

“How do we create a system that allows EU migrants to continue to fill these processing jobs as well as those in farming and seasonal work?”

Lord Duncan said he did not think rural affairs minister Michael Gove’s preferred points-based system was workable. He said: “It needs to be a non points-based system.”

Full story can be read here

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Theresa May under pressure to drop migration target after warning over Brexit recruitment crisis.

Theresa May has come under new pressure to drop her target to reduce migration after a report warned that Brexit is already causing recruitment problems for UK companies.

The Recruitment and Employment Confederation (REC), the professional body for the recruitment industry, said the Government’s failure to outline a post-Brexit immigration policy was adding to uncertainty for both business and EU workers in the UK. REC’s survey of 607 employers found evidence that a growing number are taking on temporary workers to plug gaps caused by skill shortages. Some 87 per cent intend to maintain or increase their use of temporary staff in the next three months.

Kevin Green, REC’s chief executive, said: “Brexit is making the situation more challenging. In London for example, a third of people working in construction are from the EU and it’s difficult to see how firms will manage if their workforce aren’t encouraged to stay in the UK and continue to contribute to our economy.”

Mr Green added: “Decisions about the future immigration system are too important to be subject to political whim – we need policy to be built on sound evidence and data. Businesses need access to people to deliver growth, and that the current UK workforce alone cannot meet demand.” The REC’s “jobs outlook” report said the engineering, construction and education sectors could face unfilled vacancies in September or October.

Full story can be read here

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Brexit talks must not lose sight of immigration issue.

We hear masses about a Brexit “Bill” and about the future role of European Court of Justice. But what has happened to the issue of free movement? Wasn’t this supposed to be one of the Government’s fabled “red lines”?

While Theresa May  in her manifesto renewed David Cameron’s vow to bring net migration down to 100,000 a year we have scarcely heard a thing on the subject since the election. There has to be a suspicion that the Goverment is preparing for a climbdown, that it is opening the way for a deal in which Britain would remain partially in the single market with EU citizens free to travel to Britain, to look for work here and to claim benefits here much as before. In fact the Government began to change tone subtly on free movement as early as the first week in April even before Theresa May made her decision to call a general election.

Speaking on a trip to Jordan, about as far from the political fray of Westminster as she has been in recent months, the Prime Minister started to talk of an “implementation period” in which free movement could continue to operate for an unspecified time. There has been a similar shifting of position in the Government’s promise to guarantee the rights of EU citizens already resident in Britain. There is widespread agreement that people settled in Britain should have the right to stay in return for UK citizens resident abroad having the right to remain there.

But there is the issue of a cut-off date: since when should an EU citizen have had to be living in Britain to qualify for the automatic right to stay? At first it was suggested that it should be the date of the referendum: June 23 last year. But the date keeps slipping forward. It now could be any date between when Article 50 was triggered – in March this year – to the date on which Britain officially leaves the EU, expected to be March 2019.

Full story can be read here

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There’s going to be ‘chaos’ in the food industry after Brexit, report warns…

A report from food policy specialists has said that ministers need to establish a clear plan for how a new food system will operate. As it stands, the UK gets 31% of its food from the UK and the report’s authors have warned that provisions need to be put in place before Brexit occurs in 2019. The absence of a trade deal could push the price of imported food up by 22%.

Even a ‘soft’ Brexit – which would see the Uk remain in the single market or customs union, could badly impact the food and farming industries.Ahead of the departure deadline, there are thousands of pieces of legislation concerning food which require consideration, covering areas such as agriculture and fisheries.

Author Tim Lang, a professor from City University in London, accused the government of a ‘serious policy failing on an unprecedented scale’ for its handling of the situation. Mr Lang said: ‘The Government has provided next to no details on agriculture and fisheries, and there has been total silence on the rest of the food chain where most employment, value adding and consumer choice are made. ‘With the Brexit deadline in 20 months, this is a serious policy failure on an unprecedented scale. Anyone would think they want a drop into the World Trade Organisation abyss.’He added: ‘At least the UK entered World War Two with emergency plans. No-one has warned the public that a Food Brexit carries real risks of disruption to sources, prices and quality.’

These include a “clear integrated plan for UK food”, new legislation to ‘replace 4,000 pieces of EU law relating to food’ and subsidies to cover the EU’s Common Agricultural Policy, which the UK is expected to leave. The report, which is based on more than 200 sources, continues: ‘Prices, which are already rising and likely to rise more, will become more volatile, especially harming poor consumers.’

Full story can be read here


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Brexit could cost UK Treasury tens of billions in lost tax revenue.

The Treasury’s official watchdog has highlighted the significant risk posed by Brexit to the UK’s public finances in a new report.

The Office for Budget Responsibility, in its Fiscal Risk Report published on Thursday, said that a possible Brexit “divorce bill”, which some have suggested could be up to €100bn (£88bn), would only be a “one-off hit” to the Exchequer and that the far bigger risk related to the damage that leaving the EU could do to the UK’s long-term growth rate.

It said that if Brexit ended up reducing the UK’s annual trend productivity growth rate – the amount the UK produces per hour of labour – by just 0.1 per cent over 50 years, the economy would be 4.8 per cent smaller than otherwise. That would be equivalent to a cost in lost GDP of almost £100bn in today’s money – which would translate into a £36bn hit to tax revenues.

The OBR said there was “no meaningful basis” on which to predict the outcome of the Government’s Brexit talks in terms of the UK’s future trade arrangement, and so it has not assumed any long-term hit to the UK’s productivity growth rate in its current official forecast. However, many private sector forecasters have downgraded their potential productivity growth forecasts for the UK due to the decision to leave the EU, some by as much as 0.3 per cent.

Berenberg Bank has downgraded its base-case estimate for long-term annual UK potential productivity growth from 2.1 per cent to 1.8 per cent due to Brexit. Combining that with the OBR’s estimates implies a £100bn hit to tax revenues over the next half-century.

Full story can be read here

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Great Repeal Bill Human Rights Clause Sets Up Brexit Clash With Labour


The government has set itself on a collision course with opposition parties by insisting that it will not bring the EU charter of fundamental rights into domestic law on Brexit day.

The shadow Brexit secretary, Keir Starmer, has made the incorporation of the charter – which interprets EU human rights – one of the six tests he will apply when Labour decides whether to vote for the bill when it returns to parliament in the autumn. The Liberal Democrats have also made it a key demand.

The government believes the charter, which interprets existing EU rights rather than creating new ones, will no longer be necessary after “exit day”, when Britain leaves the EU. But refusing to incorporate it will set up one of a series of parliamentary struggles as Theresa May tries to get the legislation through parliament.

The Lib Dem leader, Tim Farron, who has said the passage of the bill in the autumn will be “hell” for the government, said: “The charter of fundamental rights is a cornerstone of what makes Britain what we are. I cannot understand what issue the government have with it. Is it the right to life, the ban on torture, protection against slavery, the right to a fair trial, respect for privacy, freedom of thought and religion, free speech and peaceful protest? These are not frustrations, these are integral to what it is to be British.”

The first and most historically significant line of the bill says simply: “The European Communities Act 1972 is repealed on exit day.” But the legislation also brings EU law into domestic UK law, to create continuity after exit day. And it contains controversial new powers for ministers to tweak laws and create new institutions, where these are deemed necessary to make EU law work when it is transferred to UK law.

Full story can be read here

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Frequently Asked Questions for EEA Staff and their Family Members

The following FAQs are intended to answer your most immediate questions relating to the effect of the UK’s exit from the EU on EEA citizens, and we will endeavour to update these as and when the situation develops.

How much attention should I pay to these proposals?

It is important to remember that they are merely proposals put forward by the UK as part of its negotiations with the EU. Whilst the proposals are a useful indicator of the government’s current intentions, depending on the outcome of the negotiations, they could, by the time they are implemented, become either more generous or (less likely) more onerous for EEA nationals in the UK.

The proposals refer specifically to EU citizens, but what about those of us in the UK from other EEA (non-EU) member states and Switzerland?

The government has said that it will discuss similar arrangements with Iceland, Liechtenstein, Norway and Switzerland on a reciprocal basis. Throughout these notes, we will use “EU citizens” when referring to the government’s proposals, but “EEA nationals” when discussing the current law and practice relating to the wider group of EU, EEA and Swiss nationals.

What are the relevant points of the proposals?

  • EU citizens who arrived before a specific cut-off date (see below) and who have been continuously resident here for five years will be allowed to stay indefinitely by obtaining “settled status”.
  • EU citizens who arrived before the cut-off date but have not been here for five years will be allowed to obtain temporary permission to stay until they have, after which they will be able to apply for settled status.
  • Family dependants who are living with or who join EU citizens before the UK’s exit will also be able to apply for settled status after five years in the UK.
  • There will be a grace period of up to two years after the UK leaves the EU to give EU citizens and their families sufficient time to make their applications.
  • All EU citizens and their families in the UK will need to apply to the Home Office for permission to stay before the end of the grace period, regardless of the date of their arrival and whether or not they already have permanent residence or documents to confirm that status.

What does “settled status” mean?

Settled status under UK law is expected to be the same as indefinite leave to remain (ILR) granted to non-EEA nationals after five years of continuous residence in the UK. ILR is similar but not identical to the permanent residence which is currently acquired by EEA nationals who have spent five continuous years in the UK in a qualifying status (i.e. as a worker, a self-employed or self-sufficient person or student). The main differences between permanent residence and ILR are:

  • Permanent residence provides an ongoing right to be joined in the UK by eligible non-EEA family members without meeting the rigorous financial criteria applied to non-EEA spouses and partners of UK citizens
  • Disputes relating to ILR are dealt with by the UK courts rather than the European Court of Justice
  • Qualifying EEA nationals are not currently required to obtain a document to confirm their permanent residence status, whilst non-EEA nationals must expressly apply for and be granted ILR

What will the cut-off date be?

The government has indicated that the cut-off date will be no earlier than the date on which Article 50 was triggered (29 March 2017) and no later than the date on which it is anticipated the UK will leave the EU (29 March 2019). In theory, this means that if you came to the UK after 29 March 2017, you may not be eligible for settled status. The actual cut-off date will be a key point in the negotiations between the EU and the UK. We think it is unlikely to be much before the UK’s actual exit date.

What will the qualifying criteria for settled status be?

The proposals refer to arriving in the UK before the cut-off date and being continuously resident for five years (and, in places, to lawful residence). It is possible the government intends to impose additional qualifying criteria, including proof that an EU citizen has been in a qualifying status (i.e. as a worker, a self-employed or self-sufficient person or student) during the five-year period (as is the case for EEA nationals to acquire permanent residence now). Thankfully, the government has indicated that it intends to remove the requirement that EU nationals who have been studying or economically selfsufficient in the UK (but not working) during any part of their five years in the UK must be able to show that they had comprehensive sickness insurance during those periods as a condition of their ability to obtain temporary permission or settled status.

What will the process be to obtain temporary residence or settled status?

We do not yet know what the process will involve or when it will be introduced. The proposals state that it will be “as streamlined and user-friendly as possible” using “existing government data, such as income records, to minimise the burden of documentary evidence required (e.g. to prove continuous residence)”. It is likely that the Home Office will require applicants to provide their biometric information during the process.

What will it cost to apply for a temporary residence permit or settled status?

The proposals state only that the government intends to set fees at a “reasonable level”. The current cost of an EEA residence document is 65 per person, but an ILR application (the closest equivalent to a settled status application) is 2,297 (without fast-tracking).

If I have already acquired permanent residence, will this mean that I am automatically granted settled status?

No. The proposals state that permanent residence status will no longer be valid after the UK leaves the EU (even if you have obtained a document to confirm that status). You would, therefore, still need to apply for settled status; although, the proposals also state that “for those who have already obtained a permanent residence document, we will seek to make sure that the application process for settled status is as streamlined as possible”, which is a positive indication that having a permanent residence document will be (as a minimum) helpful in obtaining settled status.

Can I still apply for a document confirming permanent residence now?

Yes, and you should not be put off by Home Office emails or website postings indicating that you should not apply. Many EEA nationals will find it useful and reassuring to have a formal record of their continuous residence in the UK in a qualifying status, given that the law in this respect has not yet changed and we do not know if, how or when it will do so. As stated above, having a document confirming permanent residence is also likely to facilitate the process of obtaining settled status.

The current online application process for permanent residence,, is now reasonably straightforward. The application fee is 65 per person; if you have not spent more than six months outside the UK in any 12-month period of the relevant five-year period, you are now not required to list all of your absences from the UK and it allows for an immediate passport return service (other than for dependants applying without a main applicant).

Having a document confirming permanent residence is also a prerequisite if you intend to apply to naturalise as a British citizen after six years in the UK.

Do I need to do anything now?

No, you do not need to do anything now unless you want to apply for a document confirming permanent residence. In the meantime, if you do not intend to apply for a permanent residence document, you may want to consider (merely as a precaution) locating and retaining formal original documentation to confirm your continuous residence in the UK, such as P60s or payslips. For non-working dependant family members, proof of residence would include formal original documentation indicating that they have resided with you at the same address in the UK, such as bank statements, tenancy agreements, council tax and utility bills, letters from GPs or schools, etc.

How will I know if I am eligible for a permanent residence document?

If you are an EEA national who has been in the UK for five continuous years in a qualifying status (e.g. as a student, worker or self-sufficient or self-employed person), then you will have acquired permanent residence. Under the current rules, any time spent in the UK as a self-sufficient person or as a student also requires you to have held comprehensive sickness insurance during that period (which, for practical purposes, generally means private medical insurance). If this applies to you, but you did not hold private medical insurance during the relevant period, then, given that the government intends to remove this requirement, you may want to seek further advice before applying and may be better off waiting for the new settled status process to be introduced rather than have your application for permanent residence formally rejected.

What does “continuous” mean for the purpose of qualifying for a permanent residence document?

It means being in the UK as a qualified person without a break of six months or more in any 12-month period. Absences from the UK or gaps in work of up to six months in any 12-month period will not usually prevent you from acquiring permanent residence (in certain circumstances, including maternity leave, longer gaps are also acceptable). Further advice should be sought where your work history or residence in the UK has material gaps.

Can my spouse/partner and children apply for a permanent residence document at the same time as I do?

They may qualify for a permanent residence document in their own right (as set out above) but will also have acquired permanent residence if they have been living in the UK as your family members for a continuous period of five years, even if they have not been here as qualified persons. In that case, they can apply for a permanent residence document at the same time as you. This will also be the case for your family members from a country outside the EEA, but they will have needed proof of their status in the form of a family permit or residence card from the beginning of their time in the UK. If your family members have not been in the UK for five years when you apply for a permanent residence document, they may still apply at the same time as you, but will be issued with a registration certificate (EEA nationals) or residence card (non-EEA nationals) instead of a permanent residence document.

How long does it take to obtain a permanent residence document?

Although the Home Office is strictly required to process EEA applications within six months, in light of the significant increase in applications the Home Office is currently dealing with, it could take longer. In some cases, particularly where the online process has been used, applications have been approved well before the six-month deadline.

Can I lose my permanent residence status once I have acquired it?

Under current law, having acquired permanent residence (whether or not you obtain a permanent residence document), you will only lose it if you leave the UK for more than two consecutive years. This will also apply to the settled status. In addition, of course, under the government’s new proposals, permanent residence will cease to be recognised as such once the UK leaves the EU, hence, the need to apply for settled status.

Can I apply for British citizenship?

Yes, if you have lived in the UK for a continuous period of five years and are the spouse or civil partner of a British citizen, or for a period of six years if you are not the spouse or civil partner of a British citizen. You would first need to obtain a permanent residence document before applying for British citizenship. There are also additional qualifying criteria, including stricter UK absence rules than those for acquiring permanent residence and a requirement to pass a “Life in the UK” and English language test. EEA nationals with non-EEA dependant family members with them in the UK should seek further advice before applying for British citizenship, as this will affect the rights of their non-EEA dependant family members. You should also check first whether your home country will allow dual nationality some do, but others do not, and acquiring British citizenship could lead to you forfeiting your nationality of origin.

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EU citizens must bring family over before Brexit or face tougher immigration

The Prime Minister has decided not to heed the call from the European Commission to allow EU citizens living in the UK the right to be joined by family members after Brexit, as part of a deal on citizens’ rights for the estimated 3.2 million EU nationals living in the UK. Instead, Mrs May said family dependents joining EU citizens living in the UK after Britain’s exit “will be subject to the same rules as those joining British citizens” who arrive after the cut-off point.

The Government also again rejected calls from the EU that the rights of citizens be upheld by the European Court of Justice, stating in its offer document today that the ECJ “will not have jurisdiction in the UK”, but would instead be guaranteed by UK law.

Following the PM’s statement, the European Commission’s chief Brexit negotiator Michel Barnier tweeted: “EU goal on #citizensrights: same level of protection as in EU law. More ambition, clarity and guarantees needed than in today’s UK position.”

The differences in position – both on rights and who enforces them – underline how tough these negotiations could be in the coming weeks, as the two sides try to thrash out a deal that will affect one million Britons living in the EU and an estimated 3.2 million EU citizens living in the UK. The scale of the administrative task facing the Government was also laid bare on Monday, as the Home Office said it had given itself a two-year window to process applications from EU citizens for “settled status” to protect their rights.

That could amount to over 4,000 applications a day.

“It’s most definitely a challenge for the Home Office,” said an official.

The Government said it would scale up the operations to process applications but admitted that it had not done a study on whether there will be a surge in migration before the cut-off point. The 15-page document will grant EU citizens who have lived in the UK for five years “settled status” after Britain leaves, meaning they will be treated as if they are UK citizens for healthcare, education, benefits and pensions.

There will be a “cut-off date” which will be no earlier than the day Britain triggered Article 50 – 29 March 2017 – and no later than Britain’s withdrawal from the EU. However, the Government said EU citizens had a two year window after Brexit to apply for “settled status” in order to avoid a cliff-edge. The paper also says that EU citizens who arrive before the cut-off date, but with fewer than five years as a resident, will be given time to stay in order to obtain settled status.

Those who arrive after the cut-off point can stay in the UK for a temporary period but “should have no expectation of guaranteed settled status”.

Key points from the paper include:

  1. EU citizens applying for “settled status” will have to bring over dependants before the UK’s exit from the EU. After Brexit, dependents will be subject to the standard UK immigration rules.
  2. EU citizens with “settled status” will continue to have access to UK benefits on the same basis as a comparable UK national.
  3. EU citizens who do not have five years’ residence at the time of the UK’s exit but are on “pathway” to settled status will be able to access the same benefits as now – equal access for those in work and limited benefit access for unemployed.
  4. The Government will create new rights in UK law for qualifying EU citizens resident here or before exit. This will be enforced by UK courts. The European Court of Justice will not have jurisdiction in the UK.
  5. EU citizens will no longer be able to vote in local elections.
  6. EU nationals will be allowed to keep sending their UK benefits to other countries in the EU – such as child benefit – if they were already doing so before the “cut-off date”.
  7. The UK will continue to pay out state pension within the EU to qualifying EU nationals.
  8. The UK will protect healthcare arrangements for EU citizens who arrive in the UK before the “cut-off date” for UK nationals living in the EU.
  9. The UK will protect a UK European Health Insurance Card (EHIC) so British citizens can continue to benefit from free temporary healthcare while in the EU.
  10. EU citizens who arrived before the “cut-off date” will continue to be eligible for student loans, and “home fee” status in line with persons with settled status in the UK.
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Theresa May wants EU criminals out; following Brexit it may become more difficult to remove them

Last Monday’s announcement on the rights of EU citizens in the UK post-Brexit carried the headline grabbing statement that the Government will “apply rules to exclude those who are serious or persistent criminals and those whom we consider a threat to the UK”. The Daily Mail took the bait, publishing a story entitled “We’ll Kick Out EU Killers”. The reality is, however, that following Brexit it may be more difficult to remove serious criminals than it is under the law as it is now. The law does currently provide for the removal of EU citizens convicted of criminal offences in the UK. Where offences have been committed abroad, it is only through our membership of the EU that the UK has access to information about those offences and the ability to extradite accused or convicted persons.

There are two ways in which EU citizens accused of or convicted of criminal offences may be removed from the UK:

  1. EU citizens in the UK convicted of committing offences in the UK are in fact subject to deportation already: the UK Borders Act 2007 requires the Secretary of State to make a deportation order in respect of a foreign criminal unless exceptions apply. Under the Act, a ‘foreign criminal’ is defined as someone who is not a British citizen and who has been sentenced to a period of imprisonment of at least 12 months, or who has committed a specified offence under the Nationality, Immigration and Asylum Act 2002. This means that, on conviction, EU citizens can already be deported.
  2. EU citizens accused of or convicted of an offence in another country may be subject to extradition, under the EAW scheme. There is no requirement for such offences to be serious, in fact, as has been well-publicised, extradition can take place for relatively trivial offences, such as theft of a chocolate bar or cycling while drunk.

It is right to say that current legal provisions mean that it is more difficult to deport EU citizens exercising their treaty rights in the UK who have been convicted and served a sentence abroad than non-EU nationals. Nevertheless, as a result of information sharing across the EU, the prospects of determining whether an EU citizen has previous convictions from abroad are much better. The UK has access to information about previous convictions through its membership of the EU, and in particular through Europol, the Schengen Information System (II) and ECRIS. Without this access, it will in fact be more difficult for the UK to determine who is, or is not a “serious or persistent” criminal. If the UK is not permitted to remain part of the EAW scheme, extradition of those accused or convicted of offences abroad is likely to become more difficult than it is now. Further detail is awaited, however, in practical terms, if the UK does wish to exclude EU citizens who are “serious or persistent” criminals, UK negotiators may find that major concessions will have to be made in order to retain access to the key EU crime and security information databases and agencies.

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