Analysis: Why Brexit creates a new category of European citizens in search of a status

The agreement published on 19 March sets out in legal text the arrangements for the withdrawal of the UK from the EU on 29 March 2019, and what should happen over the transitional period from then until 31 December 2020. According to article 35, European rights established before or during that period by 3 million EU citizens in the UK and 1.3 million British citizens in the EU will have life-long protection, provided they still meet certain conditions. So how watertight is that guarantee in reality?

As long as it is not clear what kind of relationship will be established between the EU and the UK after the transitional period, the assurances which EU and UK leaders claim the agreement gives to citizens continue to be greeted with scepticism. There are also other difficulties: the ambiguous status of the 4.3 million, the risks of freedom of movement being subject to increasing national control and the under-estimated challenges of enforcement. These are the key issues at stake.

European rights in transition to an unknown future

The agreement seeks to provide an umbrella for the two groups on a reciprocal basis by defining these populations and explaining how the rights to residence under the so-called citizenship directive (2004/38), as well as the rules on social security and recognition of professional qualifications, should be preserved and applied. Most of the text is in green which means that it is agreed thus confirming that the UK and the EU negotiators are genuinely seeking to preserve the status quo on European rights, subject to certain conditions such as processing registration in a simple and user-friendly fashion.

But while a transition may be a good idea to give businesses a period in which they can plan to adjust to a new situation, is it such a good idea for citizens who have to know where they stand in the longer term before making changes to where they live, work and bring up their children? From the citizen perspective, an alternative would be to extend the negotiations for a further two years, which is possible under Article 50 of the Lisbon Treaty, and preserve the status quo on European rights until the future relationship is clear, which could be guaranteed unilaterally by the EU and by the UK. That would avoid citizens having to go through procedures during the transitional period only to discover that they will have to make further changes to their lives afterwards.

On the other hand, whilst all commentators acknowledge that the agreements so far will not guarantee a borderless regime between the Irish Republic and Northern Ireland, it is equally clear that the degree of freedom of movement to and from the UK more generally remains uncertain after the transitional period. The future of European rights will depend on the position of the UK in relation to the customs union and the single market as well as its own immigration regime, which are unknown.

European rights with inexistent status

Whilst the negotiating mandate for the European Commission stressed not only rights but also status, the latter has been ignored. The leading case law of the Court of Justice of the EU (CJEU) is based on article 20 and EU citizenship. The case-law can be quoted in order to claim one’s European rights and should guide national authorities when it comes to enforcement. Will the three million, though, be recognised as European citizens in the UK after the country has left the EU? Will they have a special status like Commonwealth citizens? The question of status is important because it influences greatly the attitude of the administration, whatever the texts may say, to the recognition of rights.

Whether the UK recognises EU citizens will depend on how its own citizens are regarded in the EU. There are different possibilities. A European parliament friendship group organised by New Europeans met on 28 March to consider “the curious incident of the disappearance of article 32 in the night-time” in the Agreement, which read as follows:

In respect of the United Kingdom nationals and their family members, the rights provided for by this Part shall not include further free movement to the territory of another Member State, the right of establishment in the territory of another Member State, or the right to provide services on the territory of another Member State or to persons established in other Member States.

The loss of free movement rights in the EU27 for British nationals already living in another EU state would be the most flagrant reversal of the promise to preserve acquired rights in the agreement. The ECIT Foundation (European Citizens’ Rights, Involvement and Trust) has put in a request to the European Commission to access all documents relating to this clause, which according to Europe Street News may well come back in another context. The text reveals that the Commission sees UK citizens as having acquired European rights only in the country where they are resident, despite the existence of a directive encouraging free movement for longstanding third country nationals.

The European parliament on the other hand, where the idea of associate European citizenship has been floated, recognises that there is a problem and in its March resolution points out that “many UK citizens have expressed strong opposition to losing the rights they currently enjoy pursuant to Article 20 TFEU” and notes “the recent referral to the CJEU of a case bought in a Dutch court concerning the preservation of EU citizenship rights for UK citizens after Brexit”.

In theory, UK citizens could become third country nationals, they could acquire a hybrid status as former EU citizens, or they could preserve that status but if there is a reconfiguration of EU citizenship to become a broader European citizenship. I have submitted a complaint with the support of The Good Lobby to the European Ombudsman demanding clarification of the future of the European citizenship status.

European free movement rights subject to more national control

From the outset of the negotiations, the UK made it clear that the government wished to introduce a regime of settled status for which the three million should apply after departure from the EU. Having given way to this demand, which is not outlawed by directive 2004/38, the negotiators have at least reduced the original lengthy document to be filled out to a procedure which should be quick, simple and cost free.

There is also a provision for lengthening the timescale for registration by one year and treating tolerantly people who fail to respect the deadline. Nevertheless, the introduction of settled status remains a massive task for which the UK authorities will have to recruit additional staff from among EU citizens. It is also questionable whether it is necessary, since the whole purpose of the withdrawal agreement is to keep the status quo as far as possible.

Since the negotiations are based on reciprocity, the European Commission apparently wrote last year to the EU27 asking whether they intended to introduce a similar scheme for UK citizens who had moved to their country but received no answers at the time. Now, however, the text of the agreement is a very open invitation to the EU 27 to introduce a similar process to the one in the UK for British citizens, thus adding a further expensive administrative burden to the process of Brexit. There is also the possibility of introducing systematic criminality checks.

Rather than a citizens’ right to free movement which can only be challenged subject to strict conditions of proportionality and public interest, the risk is that the situation will now be reversed, and that people have to first ask permission from national authorities and acquire European rights from them rather than have them in the first place.

The original aim of directive 2004/38 was to increase free movement and reduce the administrative burden, for example, by abolishing short-term residence permits and concentrating on permanent residence acquired after five years. It is possible that the pressure to introduce more national controls, and the risk that they could spread from this agreement beyond the 4.3 million, could be resisted by introducing a European citizens’ card.

The underestimated problems of enforcement

Article 4 states that EU citizens and UK nationals “shall be able to rely directly on the provisions”, and anything which contradicts them shall be “disapplied”. This sounds fine except that the issues are in an uncertain grey area rather than black and white.

The intention is that the agreement should be directly enforceable, like an EU regulation, and will be followed by detailed guidelines. A joint committee will be set up to supervise the implementation of the agreement for a minimum period of eight years after the transitional period. There will be a special committee on citizens’ rights, and the UK will set up an independent authority which will receive complaints, conduct inquiries and be able to take legal action. Moreover, the UK will be able to participate when appropriate in systems set up by the EU, such as for the coordination of social security arrangements.

There are, though, reasons to doubt whether this will be enough to guarantee proper enforcement even after eight years (a generation would be nearer the mark):

1) The EU culture is based on the belief that the priority is to negotiate and agree the legal text, whilst the tough and unrewarded task of enforcement takes second place. Its style is to sign of the texts and move on. Even within the EU, enforcement of European rights is problematic — c.f. the notorious difficulties of applying the free movement directive correctly in any of the member states — this will be much more challenging both within and outside the EU.

2) Much of the text of article 4, which provides for the application of EU law in the UK, remains in white and therefore not yet agreed, reflecting the Brexit slogan of “take back control” and resistance to the role of the CJEU. The UK is looking for equivalent effects to those within the EU, but not the same effects.

3) In article 33, a new clause has been introduced requiring the member states and the UK to disseminate information about the agreement, but it is a general and non-prescriptive text failing, for example, to spell out that all those affected by the agreement should be informed personally. Without knowing how citizens themselves might act and without guaranteeing that they are informed, the time and costs involved in processing everyone are bound to exceed even the most pessimistic assumptions.

In summary, it is not surprising that groups such as the3million or British in Europe are warning, despite the drafting talents of EU negotiators, that much is as “clear as mud”, especially when very specific questions are asked about the effects of the agreement, and claiming that it would be better to be a cheddar cheese rather than an EU citizen moving between the UK and the EU27.

 

Tony Venables, Director of the ECIT Foundation (European Citizens’ Rights, Involvement and Trust), Brussels.
Photo: graffiti on the Berlin Wall, via Pixabay.

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