Citizens of somewhere? Article 50 and expat’s rights

For EU citizens living in the UK, and UK citizens living elsewhere in the EU, Article 50 notification is likely to arouse mixed feelings. On the one hand, it sets in motion a process which will inevitably lead to a significant change in their status. At the moment, as citizens of one Member State resident after another, they have most if not all of the rights of natives; that will change after Brexit.

On the other hand, it does at least hold out the prospect that some of the uncertainty currently hanging over their heads  may be resolved.   After all, both sides have made it clear that this is the first priority for the negotiations

The UK government has said:

“Securing the status of, and providing certainty to, EU nationals already in the UK and to UK nationals in the EU is one of this Government’s early priorities for the forthcoming negotiations”

 

while the EU’s lead negotiator, Michel Barnier has used similar, and equally positive, language:

“But we can and we should agree, as soon as possible, on the principles of continuity, reciprocity and non-discrimination so as not to leave these citizens in a situation of uncertainty.”

 

Many argued that the UK government should have unilaterally guaranteed the status of EU nationals in the UK even before Article 50 negotiation, both as a matter of goodwill and self-interest. That is now water under the bridge: surely now that the negotiations have started both sides can agree quickly, put this issue to rest, and move on to more difficult issues, at least providing certainty to the millions of people involved?

The problem is that the issues – political, legal and administrative – are far too complex to be solved with a simple handshake and proclamation of goodwill on both sides. I have already explained at length that simply saying that everybody who was resident in the UK on the date of notification can remain here indefinitely is impossible to operationalize.

But even assuming there is both mutual agreement on the qualification period for residence, and that the UK Home Office can make that operational in a pragmatic and humane way – and as the Home  Office has demonstrated this latter point is far from obvious- a deal on this point will only mark the start of the negotiations.

In particular, what does M. Barnier’s principle of “continuity” means? Reports suggest that the UK government has accepted that EU nationals resident in the UK will be able to continue to claim benefits under the current rules, including child benefit for children living elsewhere in the EU.

If we didn’t, the risk is that UK nationals abroad might lose access to healthcare and other services. Ironically, some EU nationals in the UK might actually be better off financially as a result of Brexit – since if we had voted to Remain then David Cameron’s renegotiation would have allowed the UK to phase out some of their entitlements.

But this is only one of the many thorny legal issues that will have to be sorted out.  Family rights, in particular, are likely to be an issue; at the moment there are almost no  restrictions  on the rights of EU nationals resident in the UK to be joined by their spouse (indeed, in some respects they have more rights than UK nationals do).

M. Barnier’s comments suggest that the EU is likely to argue that EU nationals, who moved to this country in good faith, should continue to be able to be joined by family members from their home countries.  How will Theresa May  reconcile that with her pledge that “ will design our immigration system to ensure that we are able to control the numbers of people who come here from the EU”?

The negotiations are also likely to be complicated by the very different interests of the other 27 EU member states.  Some – most obviously Poland – will be under strong domestic political pressure to preserve their nationals’ existing rights.

Others, from Latvia to France, might secretly not be too unhappy if some of their young, skilled diaspora were to decide that the UK is a less attractive place to live and were to return home.  And others, most obviously Spain, may not wish to give indefinite guarantees to treating UK citizens as generously as they do now.

Nevertheless, the optimistic perspective is that no-one has an interest in publicly blocking an agreement on this issue; and there are no obvious reasons why a broad deal that all countries will respect M. Barnier’s basic principles should not be achievable.

Early progress on this would provide considerable comfort to those affected, even if uncertainty on many of the details will take a lot longer to resolve, and would generate considerably goodwill, which might help the more difficult negotiations to come.  The flipside of this is that if we can’t do a quick deal on this issue – which should be easy – it will be a truly bad omen.

By Professor Jonathan Portes, senior fellow at The UK in a Changing Europe

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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  • Fergal O’Shea

    What about the special case of Irish – EU – passport holders in Northern Ireland? foreigners?

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