Position Papers – Nov ’18

Working with the3million , British in Europe has published a series of papers clarifying our position on key elements of the negotiations. These can be read in full here…

1) Free Movement/Life Long Right of Return

UK citizens living in the EU should retain their right of free movement throughout the EU; and EU citizens living in the UK should have a lifelong right to return to their UK home. And these rights should be guaranteed by amending the Withdrawal Agreement (“WA”) to include them.


2) The loss of family reunification rights for the3million and British in Europe

The draft Withdrawal Agreement [WA] protects some (though not all) family reunification rights of EU27 citizens in the UK and British citizens in the EU27:
This means that after the end of the post-Brexit transition period:
• An EU27 citizen in the UK who is covered by the WA [EUinUK] can be joined in the UK by certain limited family members as defined in the WA (e.g. an existing spouse, a child or grandchild, a dependent parent)
• Similarly, a British citizen in the EU27 who is covered by the WA [UKinEU] can be joined in their country of residence by those same categories of family members as defined in the WA

However, a related set of family reunification rights (also known as “Surinder Singh” rights) is not covered by the draft WA, which means that after the end of the post-Brexit transition period:
• An EUinUK citizen who wants to return to their country of origin with any non-EU27 family members will face their country’s domestic immigration regulations for those family members
• A UKinEU citizen who wants to return to the UK with any non-British (whether non-EU or EU) family members will face the UK’s stringent domestic immigration regulations for those family members.


3) Declaratory vs Constitutive

The draft Withdrawal Agreement (WA) provides the relevant host country with two alternative options as regards how citizens protected under the agreement will be able to secure their rights:
a) The declaratory system under Article 17(4) of the draft WA, which corresponds to the current system in place under Directive 38/2004 and in accordance with EU law for the registration and confirmation of the primary right of free movement derived from the EU Treaty. The structure set up would thus mirror that under the Directive and EU law: the primary right would derive from the WA and simply be confirmed or “declared” through a registration system under Article 17(4) WA. In many Member States UK citizens are already required to be, and are, registered under this system.
b) The constitutive system under Article 17(1), which is not in line with the current system under Directive 38/2004. This would introduce a requirement to apply for a new status evidencing the rights provided for under the WA and would be subject to conditions that are not in accordance with current EU law e.g. systematic criminal checks. In addition, applications under the constitutive system could of course be rejected and, in the event of failing to apply, a citizen could be an illegal resident in the relevant country.


4) Voting Rights

The loss of voting rights is one of the most undemocratic and shameful aspects of Brexit. At least 60% of British in Europe and almost all EU27 citizens in the UK were disenfranchised in the most important vote of their lives in the EU referendum, as well as in the 2015 and 2017 General Elections. We now face losing other voting rights – and a complete loss of political rights for some – following the negotiations on the Withdrawal Agreement (WA) under Article 50.  


5) Ring-Fencing

Why the UK should support ring-fencing citizens’ rights if there is no deal.