There is a serious risk of a political stitch-up in December, where progress falling well short of protecting our rights is certified by the EU to be “sufficient”, just so that the sides can move on to discussing trade. If that happens and Citizens Rights are discussed in parallel with trade and other matters, we will be bargaining chips in the full sense of that term. So it is vital to avoid that, and for the same reasons any agreement which is made now must be ring-fenced to prevent it being revisited as part of the trade negotiations.
Why is there no deal yet?
Each side has said that Brexit should not alter people’s daily lives but the negotiations are far from achieving that.
The EU made the first offer – a principled proposal on its face protecting our existing rights. If the UK had simply accepted this offer, the negotiations would have gone on to clarify the detail and we believe that a deal would have been done by now.
But the UK did not accept: they made their own offer some weeks later which did not even refer to the EU’s. By making a low offer knowing they would have to raise it, they showed that they saw Citizens Rights as a matter for standard commercial negotiation. They have since made a number of concessions, but they still have a long way to go. Unfortunately, the EU’s reaction to this approach appears to us to have been to harden its line, as we show below.
Stumbling blocks for the EU27
They drew a flawed distinction between the rights of citizens who have already moved and the future relationship between the UK and the EU. This led them to refuse to discuss the position of present posted workers, to cut off at Brexit the freedom of movement rights of UK citizens now in the EU, including to work, and to limit dramatically the recognition of professional qualifications upon which people already depend to earn their living, as well as the scope of economic rights. This was a surprise to us all as the EU Negotiating Directives, amended after discussions between BiE/t3m and the EU, promised to preserve our rights of free movement.
They have been inflexible about modifying the application of their laws to those affected by the unprecedented circumstance of a Member State leaving the Union. They will not relax the 2-year rule under which a person with permanent residence in a State loses that right if s/he is absent for two years. It seems the UK offered to grant an unlimited right to return to EU citizens in the UK in exchange for freedom of movement for UK citizens within the WA, – if this is confirmed, it should be accepted immediately.
Stumbling blocks for the UK
First, the UK refuses to accept the simple continuation of the existing system of EU residence rights and insists on requiring EU nationals to be brought under UK immigration law where ‘leave to remain’ is granted to ‘applicants’. This is fundamentally different to the concept of citizens’ rights in the EU and would confer on EuinUK much less protection.
They insist that this is because “the UK will no longer be subject to EU law”, but they are happy for this to happen where convenient, having said from the outset “the UK will seek to protect the healthcare arrangements currently set out in EU Regulations and domestic law.” Moreover, it is the approach of the Government’s EU (Withdrawal) Bill to continue to apply existing EU law save where it is specifically disapplied.
Second is the argument, used to justify a restriction on the right to bring an ageing relative to live with one and the right to bring a future spouse, that the rights of EU citizens in the UK should be no better than those of UK citizens. The flaw in this argument is that the ageing relatives of most UK citizens in the UK live in the same country and the majority marry fellow-nationals. So there are no restrictions on them.
British in Europe and the3million’s road map to ensuring Citizens Rights by December:
- Agree a workable alternative to ‘settled status’ in UK by accepting the3million’s proposals in their paper entitled “The alternative to current proposals for EU citizens living in the UK before Brexit.”
- Confirm a solution on free movement and the 2-year rule providing reciprocity in practice: an agreement should be made conceding continuing free movement rights to reside and work across the EU 27 for UKinEU in exchange for a lifelong right to return to the UK for EuinUK. The UK also needs to relax the rules restricting the family members UKinEU can bring with them if they decide to return to the UK.
- Professional qualifications: mutual recognition of qualifications should be confined to those who have been residing or frontier-working away from their country of origin at Brexit but otherwise should not be restricted to the country of residence, work or individual recognition-decision; recognition of professional qualifications, whether generic or individual-specific, should apply across the EU28 and a professional who has practised under his/her home title should continue to be allowed to do so. Degrees obtained post-Brexit by EU27 students in the UK and vice-versa (including GB passport holders who have lived in the EU27 and vice versa) should be recognised.
- Economic rights: Again, economic rights such as the right of establishment as a self-employed person or to run a business should continue to apply across the EU for those who are exercising freedom of movement pre-Brexit.
- Voting rights: a right to vote in local and European Parliamentary elections is an essential aspect of the right to live in a democratic country and the EU should concede it.
- Export of benefits: the UK should not limit the right to export benefits to those currently being exported (pensions and health benefits of course excepted as agreement has been reached on these).
- Children born to citizens after Brexit should have life-long rights; however, these cannot be passed on to future generations.
Have the talks been a total failure? No. A number of important points have been agreed so far, including confirmed rights of residence in the country where they are living for all those living legally (ie in accordance with EU Treaty rights) at Brexit; confirmed rights to work or be self-employed in the country where one is working at Brexit (except for posted workers); some recognition of professional qualifications; the S1 reciprocal healthcare arrangements for pensioners and others on certain benefits to continue; UK pensioners in the EU to continue to receive inflation increases; and past and future pension contributions by those who have worked in various EU countries to continue to be aggregated.. However, unfortunately those for whom these are the most important issues cannot relax yet because they are all conditional on an overall agreement being reached. If that does not happen, we are back to square one.
Read our full, detailed reasoning view the pdf here which has been sent to both sides of the negotiations.