Long before the ‘triggering’ of Article 50, I made the normative case for unilateral guarantees by the UK to over 3 Million EU27 citizens. I argued that it is both logically flawed and morally indefensible for the UK to use EU27 citizens’ rights as ‘bargaining chips’ in the negotiations. I was concerned that, absent such unilateral guarantees, the EU will emulate the UK’s approach, adopting a restrictive view of the scope of protection of rights of UK citizens in the EU27 and subjecting rights’ protection to negotiations.
I wish I were proven wrong.
Following the publication of the 'Joint technical note on EU-UK positions on citizens' rights after third round of negotiations' and a meeting last Friday with Ms. Simonsen from the Article 50 task force, it is now regrettably clear that the UK government’s steadfast refusal to offer unilateral guarantees to EU27 citizens (and oppose the House of Lords’ amendment to that effect) has detrimentally affected UK citizens in the EU27.
Scope of protection
Amidst much talk about reciprocity, one fundamental factor is often forgotten: despite the European Parliament’s resolution from 5th April 2017 calling for symmetry, there is no symmetry between EU27 citizens in the UK and UK citizens in the EU27. The former will remain EU citizens after withdrawal, whereas the latter will – at the stroke of midnight– become third country nationals (you can support European Citizenship Initiatives that seek to avert this outcome)
The EU's negotiating position appears to treat over one million UK citizens, resident in the EU27, as prospective ‘third country nationals’ in terms of the scope of protection of their future rights. The position appears to be that, while they will enjoy EU law protections under e.g. the Long Term Residents Directive, they will inevitably lose substantive EU citizenship rights which they currently exercise, including critically the right to vote and stand for elections in municipal elections in their EU Member States of residence and the right to free movement between EU27 Member States.
The EU negotiators’ interpretations of their negotiating mandate is that it inhibits them from making guarantees to UK citizens in the EU27 in these and other areas where EU citizenship rights currently exercised are bound to be lost.
Hence, the EU’s current view is that UK citizens who have made life choices that tie their fate with the EU27 will see their rights diminished. This is an outcome which the EU, rightly, does not accept regarding EU27 citizens in the UK.
Putting citizens’ rights’ first? Not quite.
The EU's position remains that, while citizens’ rights is one of the first three agenda items (alongside the withdrawal bill and the Irish question), 'nothing is agreed until everything is agreed'. Rather than unilaterally guarantee rights for UK citizens in the EU27, the EU (appears) to emulate the UK's 'reciprocity' approach to the negotiations. The status and rights of citizens who have exercised free movement treaty rights in the (possible) scenario of a failure to reach an agreement are worryingly unclear.
Earlier this year, I was involved in drafting the cross-party Question submitted by MEPs on 'Recognition of citizenship rights of UK citizens in other EU Member States and agreement on non-UK EU citizens' rights in the UK' which received a terse and disaapointing reply from the President of the Council, Donald Tusk.
I firmly believe that, as a report I co-authored with Dimitrios Giannoulopoulos has advocated, it is critical for the EU27 to act sooner rather than later in order to preserve rights of UK citizens, resident in the EU27. This is, first and foremost, a human rights issue. Indeed, the continued uncertainty and consequent anxiety that citizens (on both sides of the channel) continue to face, one which may last for many more months is itself an unjustified interference with their right to private and family life under Article 8 of the European Convention of Human Rights.
The way forward
It is not too late for the UK government to change tack and make unilateral guarantees to EU27 citizens. The Liberal Democrats have included a renewed call to ‘The Government to unilaterally guarantee the rights of EU nationals in the UK, ending their ongoing uncertainty’ in their forthcoming party Conference Policy motion. Pressure should be exerted on all other parties to do the same.
In parallel, it is incumbent on the European Parliament, in the first instance, to make its voice heard clearly on the need for the EU to genuinely put citizens’ rights first by offering unilateral guarantees for over one million UK citizens in the EU27.
This, in turn, should lead to the President of the Council advocating to the European Council that it should commit to maintaining EU citizenship rights for UK citizens in other EU Member States, and that these shall remain in place regardless of the outcome of negotiations with the UK.
The time is now.