How do citizens’ rights affect Brexit negotiations? – The Guardian
What are citizens’ rights and why are they important?
Citizens’ rights are the protections offered to all EU citizens, including free movement and residence, equal treatment and a wide range of other rights under EU law regarding work, education, social security and health. They are held by 3.5 million citizens from other member states in the UK and 1.2 million British nationals on the continent, and are seen as a key part of the negotiations that are taking Britain out of Europe.
For Brussels, citizens’ rights are “the first priority” of the article 50 divorce talks. “We need real guarantees for our people who live, work and study in the UK, and the same goes for Brits,” the EU council’s president, Donald Tusk, has said.
The UK government has likewise stressed in its Brexit white paper that it wants to “give people the certainty they want … at the earliest opportunity. It is the right and fair thing to do”.
In theory, securing the rights should be one of the easier parts of the Brexit negotiations.
Where did the two sides stand before talks began?
Agreeing that a problem needs urgent resolution is not the same as agreeing on the answer. Citizens’ rights is a far more complex area than many in Whitehall admit – and could prove a big stumbling block.
The issue has already generated ill feeling. Claims by Theresa May that she tried to reach an early deal on reciprocal rights but was rebuffed by member states drew a sharp EU reminder that the topic could not be addressed outside the formal divorce talks.
Following a succession of high-profile cases involving longstanding residents or their children being denied permanent residency, the British government has also been accused in Brussels of failing to treat EU nationals fairly and humanely.
How do the UK and EU positions differ?
The UK government has said it will make a generous offer on citizens’ rights. But it has never said it is ready to secure all the rights EU citizens now have, which cover not just residency but a full spectrum of rights related to education, work, social security and health.
Among the rights Britons on the continent have said they want secured, for example, are those to acquire citizenship, study, have their academic and professional qualifications recognised, work, run a business, move freely between EU member states, and receive healthcare, pensions and other social benefits.
The EU27 have accepted that list, and will expect it to be recognised reciprocally by the UK. They have also already addressed fears of Britons on the continent about being left “landlocked” after Brexit, promising that UK nationals settled in Europe will keep their free movement rights to settle elsewhere within the union.
In a detailed position statement on the “essential principles of citizens’ rights” published last month and handed to the UK’s EU ambassador on 12 June, the EU27 demanded “effective, enforceable, non-discriminatory and comprehensive” reciprocal guarantees “to safeguard the status and rights derived from EU law at the date of withdrawal”.
These proposed rights include, obviously, the right for all EU citizens living legally in the UK (and vice versa) on 29 March 2019 – Brexit day – to be deemed legally resident, the right to permanent residency after five years, and to full equal treatment with nationals as regards to jobs and benefits.
The EU27 believe these rights must apply for life, not just to EU citizens living in the UK and British citizens living on the continent now, but to all who have done so in the past, at any time during the UK’s membership of the EU.
The EU also wants those rights to apply to “current and future family members”, no matter their nationality, who decide to join the right-holder after Brexit, and to continue to apply to family members after the divorce or death of the right-holder.
There is a lot here that an immigration-focused Conservative-led government will find hard to accept. How readily, for example, will it sign up to open-ended access to residence, and particularly benefits, including for family members who may arrive after Brexit and may not necessarily be economically active?
What are the potential stumbling blocks?
Along with many other experts, Jonathan Portes, a senior fellow at the thinktank UK in a Changing Europe, believes the question of family rights is one of two big potential stumbling blocks in the citizens’ rights negotiations.
At present, it is considerably easier for EU citizens to bring even non-EU spouses and other immediate family to live with them in the UK than it is for UK citizens, thanks to stringent minimum earnings requirements introduced in 2012.
The government has long railed against its inability to rectify this, with ministers repeatedly saying they want to extend the income threshold and introduce an English language test for non-European spouses of EU citizens in Britain.
It is already doing its best to root out third-party nationals married to EU citizens who have become British citizens, with a test case involving a Spanish-British dual national and her Algerian husband being considered by 15 judges in the Grand Chamber of the European court of justice (ECJ).
If Britain bows to the EU’s position on citizens’ rights and the court rules in favour of the Spanish-British national, the government would not be able to prevent, for example, a Venezuelan spouse of a Spanish citizen now living in the UK being able to join them – even in 15 years’ time.
While, as Portes points out, the leave campaign promised that EU citizens “will be treated no less favourably than they are at present”, that might be difficult to explain to British voters, who do not enjoy the same right.
The second significant bone of contention is likely to be the EU’s insistence not only that existing rights for EU citizens be maintained in perpetuity and extended to family members, but that they be monitored by the European commission and enforced by the ECJ or an equivalent body following ECJ rules.
This would mean that EU citizens living in the UK would be able to appeal to the ECJ (or another ECJ-approved external body) if they thought the Home Office or UK courts were not respecting their EU rights.
Accepting that condition would represent a big climbdown by the UK government, which has repeatedly said that “taking back control” of British laws means it is determined that Brexit must mean leaving the jurisdiction of the ECJ.