Sunday 11 December 2016

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

Steve Peers


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

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  1. Some points.
    Role of EP> I think you don't take into account the no standard trilogue way of operating in Brussels post TEU/TFEU. As Brexit is in effect a co-decision there will be a trilogue set up of the three institutions. The aim is to ensure not major Council/EP differences. EP will set up a Brexit committee which gather its thoughts. the trilogue meetings will be the venue for settling differences between Seeuws for the Council, Barnier for the EC and Verhofstadt for EP.
    2. UK govt needs to say that it will continue the S1 payments for eligible British state pensioners in Eu27. Without this they will lose their residence rights under existing EU Decision on free movement as non-economic residents. They need to show adequate income and comprehensive health cover. Hence the S1 system. Few British state pensioners in EU27 could afford private health insurance. Of course would not be on offer for those who move to EU27 after Brexit day or even you harsher Art50 cut off day. This in effect kills the "retire in the sun" for many Brits after 2017 or 2019.
    3. UK also needs to push several MS to offer their nationality to qualifying Brits and to allow them to keep their British nationality. Several including Spain do not allow dual nationality for Brits.

    1. Thanks for your comments. 1 Trilogues apply to EU legislation (ie if there were a proposal for special status for UK citizens in the EU), but do not apply to international treaty negotiations. 2 Agreed - 'ex-EU' status for UK citizens in the EU also has a UK dimension, although the inquiry only covered EU citizens in the UK. But 'retire in the sun' is over anyway for UK citizens heading to the EU for the first time after 2019, unless the UK agrees a deal with the EU to cover this. 3 That would be nice but I can't see what leverage the UK has there without making concessions on something.

  2. Probably the direction it will go. Not due to the recommendations but since these are already announced political stances. Although the risks are in getting to agree. Even though there may be certain acquired rights and a moral high ground the reality is that many politicians simply don't consider that. Their purpose is the outcome no matter what (I should say "who") and/or safeguarding against loss of votes. History shows us that in these situations the (moral) rights of the few are often neglected. We all know we should have certain rights, that is not the issue... the issue is how far right politicians and society are willing to go in their misguided endeavour. In that they can write/create any law they want, ignoring all decency, fairness and morals. That is the danger. How far are they willing, or pushed by the momentum, to go. Later you'll get "ich habe das nicht gewusst".

  3. Great analysis. I'm just not sure if the idea of 'associate citizenship' is feasible within the current EU framework. Of course, you could see it as individual MS or the EU adopting a privileged immigration regime for UK citizens. But this 'status' would be frail and nowhere near comparable to the EU citizenship that UK citizens (would no longer) possess. Anything more than that, however, seems to contradict the (text and) spirit of Article 18 TFEU, which explicitly links EU citizenship to MS nationalities. An 'associate citizenship' would seem, IMO, to be moving towards a true 'EU nationality' separate from MS nationalities.

    Just as an aside, is there any particular reason that, in your proposed provision to the Article 50 treaty, that you chose 'Brexit day' as the cut-off date? It seems a bit contradictory to your earlier statement of taking the 'Brexit notification day' as the cut-off date, given that after said date, EU citizens could not legitimately expect to keep their rights as EU citizens in the UK.

    1. Thanks for your comments. I don't think 'associate citizenship' is that frail compared to other non-EU citizens - if you're comparing it with EU citizenship it might be a different conclusion. On the cut-off date you're right, I was sticking with my initial proposal, not the British Future cut-off date - which the panel recommended as a compromise based on what it thought the UK government and public opinion could accept.

  4. Very interesting analysis. I wonder what can happen to Eu citizens who are also British nationals. Especially regarding the rights of their family members who are EU citizens only. Many thanks for your attention. Laura

    1. Thanks. Do you mean a) people who are dual citizens of the UK and another Member State, or b) people who are UK citizens only, given that the UK is part of the EU for now? If the family members are EU citizens then they can obtain EU citizen status (and ultimately permanent residence status) in their own name if they are working or self-sufficient; the case law says that self-sufficient includes people who have been supported by family members.

    2. Thanks for your king answer, Mr Peers. I'm Italian and also a British national. My mother is Italian and failed the "habitual residence test" after 9 months she was living here, exactly when I became a British Citizen., because I was no longer a an EEA citizen. We changelled the DWP and lost the First Tier Tribunal appeal. I support her and she has a tiny State Italian Pension. We will try with the Upper Tribunal. Thanks for your valuable opinion. Laura

  5. Unstable internal policy of the EU - from the UK or not - is a gateway to the Chinese economy. America has vast country, Australia is huge, Asia has several major countries and especially labor. Only Europe is still divided into small states, whose people continue to fight each other. The ideal situation for the "Asian tigers". If from the start, the EU was one nationality for citizens of accession countries - which is not dominant design for better and worse - then no one would feel worse. Too many people in the EU are considered to be worse than others. UK as a country with colonial traditions should lead by example, he can merge the nations and form a coherent policy. I think in the last decade did not go too well the British politicians on the world stage.
    I do not want to offend anyone.

    1. Take a bow! The suggestion that Britain should colonise the remaining EU perfectly sums up 2016!

  6. Hi Steve, very interesting article.

    Your article doesn't mention what will happen to those non-eu family members of Brtish Citizens who return to the UK after exercising treaty rights in another member state aka Surinder Singh.

    Will their non-eu family members be able to complete the 5 year period to obtain permanent residence under EU rules providing the British Citizen returns to the UK before the cut-off date? After all a returning British Citizen is classed as a proxy EEA national.

    1. This category of people should also be covered by the general 'ex-EU' status and the cut-off date. Logically this would apply by means of them coming back before the cut-off date (in the British Future suggestion) or before Brexit Day (in my suggested solution for the Article 50 deal).

  7. The UK is a party to the EEA Agreement.
    The EEA Agreement is a mixed agreement and part of EU-Law.

    Acquired rights are dealt with in the EEA Agreement – see further below.

    The UK would have to withdraw from the EEA Agreement in a simultaneous process with its witdrawal from the EU, as membership of the EEA is reserved for EU Member States and for EFTA Member States.

    Acquired rights are dealt with in the EEA Agreement in the context of the EEA decision making procedure by which new EEA relevant acquis is Incorporated into the EEA Agreement in order to maintain the “homogeneity” between EEA Law (i.a. the EEA Agreement) and EU Law. In case there is failure to reach an agreement in the EEA Joint Committee, which is the joint decision taking body under the EEA Agreement, (see Article 102 EEA) then, under certain conditions, provisional suspension of the relevant part of the EEA Agreement may occur.

    In an Agreed Minute to the EEA Agreement acquired rights are, in a situation of provisional suspension, given protection jointly by all the Contracting Parties to the EEA Agreement. This protection could serve as a starting point for negotiations on protection for “acquired rights” during negotiations on UK withdrawal from the EU and the EEA.

    The Agreed Minute in question is contained in the Final Act to the EEA Agreement “Agreed Minute Ad Article 102 (6) EEA” and lists the following examples of acquired rights:

    – a suspension relating to free movement of workers will not affect the right of a worker to remain in a Contracting Party he had moved to before the rules were suspended,

    – a suspension relating to freedom of establishment will not affect the rights of a Company in a Contracting Party in which it had established itself before the rules were suspended,

    – a suspension in relation to Investment, e.g. in real estate, will not affect Investments made before the date of suspension,

    – a suspension relating to procurement will not affect the execution of a contract awarded before the suspension,

    – a suspension relating to the recognition of a diploma will not affect the right of a holder of such a diploma to continue his Professional activities thereunder in a Contracting Party not having awarded the diploma.

    For further reading see the book;
    EEA Law, A Commentary on the EEA Agreement, Fritzes, 1993, pages 143 – 146.
    ISBN 91-38-92200-2, Norberg, Høkborg, Johansson, Eliasson, Dedichen.

    Yours sincerely,
    Lucien Dedichen

    1. Thanks for this comment. This would indeed be a good text to use as a starting point, although it would probably be necessary to refer to other groups (the future status of workers' children, for instance) and specify some more details. The EEA provision would not apply as such to Brexit since it is a different process to that regulated by Article 102 EEA.

  8. I find a number of arguments here confusing:

    Assuming some or all EU citizens in the UK *are* allowed to stay they will have to be issued with papers/stamps by the Home Office (an organization devoted to being as obstructive as possible and the Home Office will have to check that everyone meets the criteria that have been set. Three million times over. In 2 years. I don't see how "Ex-EU" status is going to help.

    Also, there isn't really symmetry with the plight of UK citizens in the EU. The EU has limited powers to tell its members how to treat non-EU citizens within their own borders (though some rules are common). So a "bilateral" agreement isn't really possible. Is it?

    Or have I misunderstood.

    1. On the second point, see my reply to Simon Gardner's comments in this recent blog post:
      As I suggest there, the issue is within the scope of Article 50, but in any event your assertion as to limited EU powers relating to non-EU citizens isn't correct. There are a number of EU laws on various aspects of immigration and asylum for non-EU citizens, and the only power ruled out by the Treaties is the power to decide on the number of labour migrants coming from non-EU countries. (And given that Member States vote on EU laws in the Council it's odd to refer to the EU 'telling' its members to do things).
      Is it such a huge assumption that EU citizens *are* allowed to stay? As long as the UK has the Human Rights Act and the ECHR there are legal barriers to mass deportations, plus it's not the policy of anyone except an extreme fringe. No reason for the Home Office to check everyone - for those with permanent residence already there's no need to check them again. The two year period is indeed unrealistic in respect of the number remaining, but note the Prime Minister's recent speech referred to an 'implementation' phase during which more of this work could be done.

  9. What about the EU citizens who have been here, sometimes for decades, as have I, and have not exercised our treaties rights? This is something we (I) never knew until now. I know ignorance of the law is no excuse, so am asking for your opinion as to our right to stay. If we don't qualify, will we be asked to leave? Or will we be refused a permanent residency card which might mean that our access to GP, hospital, bank will be curtailed? Or that a new employer will refuse to hire us on the basis of not being a lawful resident? Or that we will not be able to get back in the country, should we leave for a short period of time? Many thanks for taking the time to consider my question.

  10. Thanks, this is a good question that affects a lot of people. For those who have been here as a spouse or partner without being employed or self-employed at all, who have not obtained comprehensive sickness insurance, there is a possible problem. If the government waives the CSI requirement, that should solve the problem for many, in if EU law is also still 'kept running' for those here before Brexit Day or another cut-off date, as detailed above. If the government doesn't waive that requirement then there could be problems - not in terms of deportations (as long as the Human Rights Act and the ECHR apply, anyway) but the other issues you mention. But even on that point the Home Office has been wrongly sending out deportation notices already.

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