Citizens’ rights: the EU already has a “generous offer” but will the UK accept?
Equal treatment is key to the EU’s position. But there is already unequal treatment in the UK over family reunification.
Theresa May will outline the government’s “generous offer” on citizens’ rights (for both EU citizens in the UK and Brits in the EU) to other EU leaders tonight. The UK’s official position paper on citizens’ rights will follow on Monday, which Whitehall officials told Politico would be a “big generous offer”.
The EU published a detailed position paper on citizens’ rights as well as another on the financial settlement earlier in June. And as part of their commitment to transparency in Brexit negotiations, the EU also published draft versions of both papers at the end of May.
A key principle of the EU’s position on citizens’ rights is that they receive the “same level of protection as set out in Union law at the date of withdrawal”. Another tenet of their position is that there is equal treatment “in accordance with Union law” of EU citizens in the UK as compared to UK nationals and vice versa. This should be enforceable and should apply to all those residing “legally respectively in the UK or EU27 at the date of entry into force of the Withdrawal Agreement”.
You can see published EU negotiating documents including their position papers at ec.europa.eu.
It’s clear that the EU effectively wants all those affected citizens to have the same rights that they do now and that these should be protected. As offers go, it seems a pretty generous one. The Guardian reports that the EU’s position would also include continued freedom of movement for Britons settled in Europe post-Brexit. Some Brits had expressed fears that whilst they felt confident they would be allowed to stay in the country they were living in, they would lose their rights to move to another country in the EU in the future. But the EU has offered to protect this. As their position paper states, they would have “equal treatment” as compared to EU27 citizens. It’s really just us Brits living in the UK who would lose freedom of movement rights.
The Guardian’s report includes a quote from Jane Golding, the chair of British in Europe who said “the EU offer now gives us almost everything we need and abides by a core principle which both sides should respect”. She added “we expect the UK, which has said it will be guided by the principle of reciprocity, to respond with similar magnanimity”.
The EU offer gives plenty of detail and goes almost all the way to guaranteeing all our rights, but everything depends on how the UK decides to respond.
We expect the UK, which has said it will be guided by the principle of reciprocity, to respond with similar magnanimity.
Jane Golding, chair of British in Europe
So the ball is in the UK’s court. How will it respond? We’ll find out more on Monday but as the BBC reports, there are already a few differences between the two sides’ positions that may prove to be stumbling blocks. They include the date by which the agreement would apply. The EU has been clear that this should come into effect on the date of withdrawal (March 2019) but the government has previously suggested that this should be the date the prime minister triggered Article 50 (March 2017).
How these rights will be enforceable is also likely to be a stumbling block in negotiations. The EU position states that the European Court of Justice (ECJ) should have full jurisdiction over EU citizens’ rights. But leaving the ECJ’s jurisdiction is something Theresa May has publicly been insistent on.
There is already unequal treatment in the UK over family reunification
Another tricky issue relates to family reunification. Under EU law, the rights EU citizens receive extend to their immediate family even if they are not from the EU. This means that under EU law, an EU citizen can bring in a non-EU spouse.
However, under British law, Brits can only bring a non-EU spouse to the UK if they – the Brit – meets a minimum income threshold. The restriction wouldn’t apply for Brits living in another EU country because EU law applies. It also doesn’t apply to EU citizens living in the UK because EU law applies to them. Presumably, the EU offer on citizens’ rights is that Brits already living in the EU would keep this right.
What this means is that EU citizens living in the UK already have more rights in the UK than Brits living in the UK. Brits living in the EU also have more rights than Brits living in the UK.
So “equal treatment” already doesn’t apply. It seems we Brits in the UK have the worst deal.
You can find more on the rights of EU citizens to bring a non-EU spouse and children the EU at europa.eu. It includes a note to say “if you are an EU citizen and have never lived in another EU country only national rules will apply”.