Bargaining Chips No More: The Status of EU and UK citizens after Brexit

Steve Peers

Introduction

Today, the results of an inquiry into the status of EU citizens in the UK after Brexit, set up by the NGO British Future, are released. I was a member of the panel of that inquiry, which sought to bring together supporters of both the Leave and the Remain side, from different political parties and from outside Parliament as well.

This blog post has three related objectives: a) to set out and defend the main recommendations of the inquiry regarding EU citizens in the UK after Brexit; b) to set out my own recommendations for what should happen to UK citizens in the EU after Brexit; and c) to discuss the idea (floated recently) of ‘associate citizenship’ of the EU for UK citizens after Brexit. Just to make clear, the second and third points were outside the remit of the British Future inquiry – but I think it makes sense to look at those issues in parallel today. Obviously, the comments here on the latter two points are mine alone, and my views on them are not necessarily shared by any of the other people on the panel.

Results of the Inquiry: Recommendations on EU citizens in the UK

The basic starting point of the inquiry is that EU citizens who were in the UK exercising rights on the basis of EU law before a cut-off date should retain their rights after Brexit. This was the explicit position of many senior people on the Leave side during the referendum campaign, and necessarily also reflects the views of those on the Remain side, who were advocating the continued application of EU free movement law to the UK.

It is also consistent with the international law principle of ‘acquired rights’ in international law. It’s unlikely that this principle could, by itself, ensure enforceable protection of specific individual rights in British law, for the reasons explained by Professor Douglas-Scott. However, the UK certainly ought to act to give practical effect to this principle. Equally, the proposal takes account of the barriers to expelling many EU citizens imposed by human rights law, discussed by Matthew White here.  

Quite apart from legal considerations and political promises, it would give effect to basic ethical principles of humanity and fairness: it would be morally wrong to disrupt the lives of people who came to the UK legally and have contributed a great deal to it. Their anxiety and uncertainty about the future should be alleviated as soon as possible.

Our recommendation would in effect create a special ‘ex-EU’ status for EU citizens who were resident in the UK before the cut-off date. Those who were already entitled to permanent residence status as of the cut-off date would keep that status (or their entitlement to apply for it). Those who were resident in the UK as of the cut-off date, but who had not yet earned entitlement to permanent residence status could still obtain it over the next five years. Those who first arrive after the cut-off date would be entitled to invoke EU free movement law in the UK until Brexit Day, after which point they would switch to ‘ordinary’ UK immigration law status, whatever that might be. (It remains to be seen whether the EU and the UK negotiate some agreement on immigration issues, which might entail a preferential status falling short of free movement of people, after Brexit).  

Ex-EU status for EU citizens in the UK would entail keeping all the same rights they would have had if the UK had stayed in the EU, in terms of access to employment and equal treatment. There are several advantages to this approach.

First of all, this approach would be easy to reciprocate on the EU side, for UK citizens living in the EU (more on that below). Secondly, it would be easier to administer: forcing all EU citizens in the UK to apply for a completely new distinctly British status would cost a fortune, and it would take years to process all the applications. Having said that, there will be some difficulties of implementation in practice, although some complications are unavoidable no matter what approach is taken to this issue. The report of the inquiry makes some detailed suggestions about how implementation could work.

Thirdly, the proposed approach would come with built-in legal clarity, since the rules governing EU free movement law are already the subject of EU legislation and many court judgments. Finally, it would be consistent with the government’s plans for a ‘Great Repeal Act’, which will keep EU law on the British statute book until Parliament (or, if given power, the executive) decides to amend or repeal it.

We chose a cut-off date of the official start of the process of leaving the EU. This is earlier than Brexit Day, on the basis that people that come after the notification date cannot expect to enjoy EU free movement rights in the UK indefinitely after Brexit Day. However, it is later than the referendum date, on the basis that EU citizens who arrived before the process of leaving the EU officially began should not be prejudiced.

Finally, why recommend that the UK act unilaterally, before the EU guarantees the status of UK citizens in the EU? Firstly, because of the principles of humanity and fairness discussed above: EU citizens in the UK should be regarded as ends and not means, and certainly not as bargaining chips. Secondly, because a principled position taken unilaterally by the UK could reduce the political tension on this issue, and make it easier to reach a bilateral agreement once talks start. If it adopts our recommendations as regards the position of EU citizens in UK law, the UK government could and should point out that it expects the EU side to agree to the same principles, particularly given that our recommendation would be easy for them to reciprocate.

UK citizens in the EU

So far, the EU has refused to negotiate on the status of EU and UK citizens post-Brexit, because the UK has not yet officially notified its intention to leave the EU. While it is unfortunate that negotiations have not already started, those who condemn the EU for its position but who also voted Leave should reflect that it was their vote that threatened the status of the people concerned in the first place.

Once Brexit negotiations begin, hopefully the negotiators will tackle this issue first and aim to reach early agreement on it, so that the people affected can make firm decisions about their future and administrations can prepare to implement the rules in practice. In principle, it should be easy to reach agreement, if both sides aim for a reciprocal ‘ex-EU’ status. Since the issue logically falls within the scope of Article 50 TEU, as an issue to be agreed as part of the Brexit process, it should not be necessary to get unanimous agreement of Member States or to subject the deal to national ratification by Member States (the Article 50 deal can be approved by a qualified majority of Member States in the EU Council).

As I suggested on the day after the referendum, it would be best to have rules in the withdrawal treaty on this issue which are legally binding, define the exact scope of the rule, can be supplemented by further joint measures if needed, and must be fully applied in further detail in national law. I suggested some wording for the Article 50 treaty (now amended to make clear that non-EU family members of UK and EU citizens are covered): 

1.       Any citizens of the UK residing in the EU as of [Brexit Day] and their family members, and any EU citizens residing in the UK as of that date and their family members, shall retain any rights which they acquired pursuant to EU free movement law before that date. They shall also continue to acquire rights which were in the process of acquisition as of that date.

2.       The parties shall give full effect to this principle in EU or national law, as the case may be.

3.       The EU/UK Joint Committee may adopt further measures to implement this rule.

The British Future report describes how the UK could implement such a legal obligation in its law. The EU side could best implement its corresponding legal obligation in the form of a short Regulation or Directive setting out general rules on ex-EU status, making consequential amendments to other EU laws. Later EU laws can then cross-refer to this basic law and/or the Article 50 deal.  

Associate EU citizenship

Another issue much discussed in recent weeks is the idea of ‘associate citizenship’ for UK citizens in the EU post-Brexit. Presumably this would be offered not only to UK citizens in EU, but to other UK citizens too. It was first suggested by a Luxembourg MEP, and since then has been promoted by Guy Verhofstadt, who represents the European Parliament (EP) during Brexit talks.

There’s a lot of unpicking to do here. First of all, the UK press has described Verhofstadt as an ‘EU negotiator’ who will make this idea part of his ‘negotiating mandate’. But neither part of this statement is true. Verhofstadt does not ‘negotiate’ on behalf of the entire EU; he may well not even end up ‘negotiating’ on behalf of the EP. Article 50 TEU leaves it up to the EU Council (Member States’ ministers) to decide who negotiates, and they usually choose to designate the Commission (subject to a negotiating mandate from the Council) to negotiate with non-EU States. The Council might choose to designate itself as negotiator. It’s entirely unprecedented for it to designate the EP as negotiator, and there’s no reason to think it would start now.

The actual role for the EP is its power of consent (veto) over the final Article 50 treaty, as discussed further by Darren Harvey here. So Verhofstadt – if he has support from a majority of MEPs – could threaten a veto at the end of the process unless one of the EP’s demands are met. That’s significant, but not the same thing as being a negotiator.

The second big issue to unpick is the status of EU citizenship. Whenever it’s mentioned, a phalanx of keyboard warriors take to social media to argue ‘There's no such thing as EU citizenship, because the EU is not a State’. This is clearly false, as Article 9 TEU shows:

In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

So EU citizenship exists despite the EU not being a State (note that the ECJ has confirmed that the EU is not a State). However, that citizenship can only be obtained by means of holding citizenship of an EU Member State. It therefore seems obvious that UK citizens will lose EU citizenship after Brexit (unless they have dual nationality of an EU Member State), although some contest this interpretation.

It follows that ‘associate citizenship’ for UK citizens after Brexit is a new idea that would have to be established by way of Treaty amendment, entailing ratification by all Member States. Another route to this end would be for some or all Member States to agree formally or informally to offer their citizenship to UK citizens. Either route would give the full panoply of EU citizenship rights (free movement, voting, consular representation) to UK citizens. But equally either scenario sounds incredibly fanciful.

A simpler way forward is to aim to retain only some of the rights of EU citizenship for UK citizens – namely the free movement rights. Most of these rights could indeed be retained by adoption of an EU immigration law extending them to UK citizens, perhaps by means of a special ‘ex-EU’ status for all UK citizens, not just those living in the EU on Brexit Day. By way of exception, an EU immigration law could not address the issue of UK citizens entering the EU post-Brexit to work, since Article 79(5) TFEU leaves that issue up to Member States. However, a group of Member States could agree common rules on that between themselves.

Thirdly, as noted already, there’s nothing to ‘negotiate’ here – at least between the EU and the UK. All these scenarios are unilateral – the EU and its Member States can decide on what they want to offer to UK citizens (if anything) without approval from the UK – just as some UK citizens already have (or can obtain) dual citizenship of Ireland or other Member States. Of course, Member States may be unwilling to go down this road without some form of reciprocity from the UK, and the UK might be unwilling to offer that; but that is a purely political matter.

Next, what role does Verhofstadt actually have as a ‘negotiator’ here? Not much. Since any unilateral decision by the EU would not be negotiated with the UK (and Verhofstadt will not be ‘negotiating’ the Article 50 deal anyway), and the EP cannot directly force the other EU institutions or Member States to consider the idea of associate citizenship (in whatever form), there would be no explicit role for the EP unless the Commission tabled EU legislation. So it’s not clear why Verhofstadt makes a big fuss about this issue.

Maybe he simply wants the attention. That’s an understandable trait in a politician. However, there’s something not only cynical, but a little bit cruel, in raising false hopes. Unless Verhofstadt clarifies his objective and presents a plan for achieving it, he risks a backlash.

Finally, at least a few Leave supporters seem upset by this associate EU citizenship idea – although conversely some Leavers seem perfectly relaxed about it. But frankly, so what? If the EU made a unilateral offer to individual UK citizens, how could the UK government stop them accepting it? Even if the UK banned dual citizenship in general, or dual EU/UK citizenship in particular, the EU could still offer EU citizenship to UK citizens who were willing to denounce their UK citizenship to obtain it. If the UK then passed a law banning people from denouncing their UK citizenship to this end, there is no legal reason why the EU should recognise the effect of that law. If the UK then persecuted anyone who purported to denounce UK citizenship, those people could seek asylum in the EU. 

Any Leavers who are really angry about the idea of UK citizens getting EU citizenship would be better off instead spending some time trying to understand why some of their fellow UK citizens value their EU citizenship so highly – and why all UK citizens should honour this country’s long history of respecting those with different points of view.  

Barnard & Peers: chapter 13, chapter 27

Photo credit: timeshighereducation.com