Monthly Archives: May 2017

Is the EU stopping the UK from protecting citizens’ rights?

According to The Daily Telegraph, the EU is stopping an early deal on citizens’ rights in Brexit negotiations, a line repeated in other UK newspapers. This is what Amber Rudd said on May 2nd, on the Today Programme, adding that the EU should also give this issue the same priority the UK government is giving it. Clearly, a well established “line” the UK government has decided to take.

This is also a similar line that was given to many EU nationals in the UK (and their British friends and family members) when they contacted some MPs to express concern and anxiety since the referendum  – that Theresa May had tried but Merkel had disagreed to an early deal. Yet, this would have been impossible before article 50 anyway, and it was never clear precisely WHAT May had offered Merkel.

According to this line, it is the EU’s fault that 9 months after the referendum –  in which it was the UK that decided to leave the EU – three million or so EU citizens in the UK and more than one million British in the EU have no idea if they will retain all their rights (including right to work, to health care, pensions, etc) after Brexit happens in 2019. It is causing major anxiety to entire families, including children and old people. There are numerous reports – on the3Million‘s 30K+ strong discussion forum – that some EU nationals are being asked unusual questions at job interviews because of uncertainty and confusion over their residency status.

But is it correct to say it’s the EU’s fault?

No. The government has had plenty of chances to guarantee EU nationals unilaterally before triggering Article 50, including during the debate on the Brexit Bill.  This would have avoided major anxiety for millions of people, and it would have set the negotiations with the EU-27 on a much better footing. Yet MPs voted down a simple amendment which would have guaranteed EU nationals’ rights. The argument used was that this would be against the interests of British citizens in the EU. However, organisations representing British citizens in the EU were actually supporting this unilateral guarantee – because it is the right thing to do, and because they knew it would have protected them better.

Also, EU negotiators DID put the issue of citizens’ rights quite clearly as the first item in the negotiations. How do I know? I was there – with a delegation of the3Million and British in Europe citizens – meeting chief EU Commission negotiator immediately before he announced that citizens’ rights were to be the top priority in the negotiations. This was the day before the UK triggered article 50, and it was clear EU institutions want to protect all 4.5 million expats, including the British in Europe.

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And by protection, the EU means protecting all existing rights, not just some. Including their right to bring family members over e.g. elderly parents – and this is currently possible for British in Europe as well as Europeans in the UK.

Note that this concept of the indivisibility of rights is not being imposed by the EU – it also clearly supported by a House of Lords committee report. This report, together with a later one by the House of Commons committee on leaving the EU, had also recommended a unilateral UK guarantee of EU nationals’ rights before triggering article 50.

A dog’s dinner

But never mind the past. The EU now EU apparently has a draft agreement ready for the UK to sign, although the UK may not be ready – this may have something to do with the EU’s position that the European Court of Justice should have oversight on the protection of citizens’ rights. Not ideal, but this is entirely solvable with good will. Note that the oversight of the ECJ may well be impossible for the UK to get out of, e.g. it it wants to be part of the internal energy market, which is clearly a sensible thing to do that the entire business sector will need and ask for. But there are other options for international arbitration, such as the EFTA court. The potential options will become clearer over time, as negotiations move on to other issues  – and it would be real disaster if this issue were to get mixed up with the issue of 4.5 million people’s citizenship rights.

And then there is another worry.

The much talked about article that appeared in the Frankfurter Allgemeiner Zeitung on Sunday April 30th about Theresa May’s dinner with Jean Claude Juncker, included something worrying on what the UK government may have in mind for an early deal on EU citizens’ rights. 

Here is what the relevant bit says:

“May had idiosyncratic ideas about how the talks should progress. First thing, she wants to clarify the rights of the three Million Europeans in the UK, and the one million Brits on the continent. That suits well, since it is also the first priority for the EU. She suggested to get this topic out of the way at the End of June, at the next European Council. Her visitors were astonished: just two weeks after the election?

Not a problem for May, the EU citizens shall/should simply be treated like Third-state citizens under british law. For Juncker, a big problem: after all, now they are enjoying many additional rights and those should be preserved as far as possible. That involves solving difficult Problems, not only in terms of residency.”

Well, so the early deal the UK says is being blocked by the EU would have involved turning EU nationals in the UK into third country citizens.  I am not assuming this is correct, nor that it is as alarming as it sounds – another explanation is that Theresa May had not been correctly briefed by her advisers or that the German journalist misinterpreted something. But this is clear: UK immigration law for third country citizens could – if used to deal with EU nationals at the stroke of a pen  – effectively make it impossible for most EU nationals in the UK to continue their lives as normal. What EU citizens need, instead, is clear measures to reassure them rapidly, and to ensure they can get on with their lives as normal without fears of losing rights that they assumed would be theirs for the rest of their lives.

EU citizens in the UK (and EU negotiators) also have reasons to be concerned about such proposals, given the worrying treatment EU citizens are receiving by the Home Office, which is currently rejecting 30% of applications for permanent residency. The Home Office has stopped sending the well publicised (and legally invalid) letters asking EU citizens who had been rejected to prepare to leave the country. However, this high rate of rejection is stopping thousands of eligible people from even applying (regardless of Brexit negotiations, getting this PR card is currently a requirement for British citizenship, which many are applying for, as it feels by far the safest protection against future retroactive changes, as well as giving the right to vote in national elections and of course being a way to be fully and more formally part of British society).

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Lack of guarantees by UK government is causing anxiety, including amongst the elderly

How can this be solved? 

I am not trying to suggest that these matters cannot be solved. Quite the opposite. What is needed is goodwill. When there is a will, there is a way. 

Here are some suggestions:

  • UK government should immediately show good will in the negotiations and reassure EU nationals FOR REAL by abolishing the current Home Office based system to acquire permanent residency, which is also highly discriminatory and often based on incorrect interpretation of EU law;
  • this should rapidly be replaced by a simple and cheap way for 3 million people established here to continue to enjoy the same rights as before including health care/pensions etc., made available through a simple, inexpensive registration process and path to citizenship;
  • of course the EU negotiating position is not perfect either. the3Million and British in Europe have been asking the UK and the EU-27 to ensure that any deal on citizens’ rights is ring-fenced from the negotiations, so it would stand in case the negotiations fail or are delayed. This is entirely feasible from a legal standpoint (ignore the misleading headline on this link).

[please note this blog does not necessarily represent the official position of the3Million, as I have written it in a personal capacity]

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