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For almost a year EU citizens in the UK – and UK citizens elsewhere in the EU – have been living with the uncertainty over their status created by the UK’s vote to Brexit.  Meanwhile, the UK government has been claiming for some months that the only thing standing in the way of resolving this uncertainty for EU citizens here was the EU-27’s refusal to agree reciprocal treatment for UK citizens. In December, the Prime Minister told the House of Commons:

“We want to give certainty and reassurance to people that this issue can be dealt with at a very early stage and then the people concerned can get on with their lives.”

In January, the Home Office wrote:

“The prime minister has been clear that she wants to protect the status of EU nationals already living here, and the only circumstances in which that would not be possible are if British citizens’ rights in other EU member states were not protected in return,”

In March, the Government’s Brexit White Paper stated:

“The UK remains ready to give people the certainty they want and reach a reciprocal deal with our European partners at the earliest opportunity. It is the right and fair thing to do.”

Well, if anyone was gullible enough to believe any of this, the events of the last few days should have disabused them.  The EU-27 has made its negotiating position clear. It wants to protect the rights of EU-27 citizens in the UK, and of UK citizens in the EU-27, on a complete, comprehensive, and reciprocal basis:

“Safeguarding the status and rights of the EU27 citizens and their families in the United Kingdom and of the citizens of the United Kingdom and their families in the EU27 Member States is the first priority for the negotiations because of the number of people directly affected and of the gravity of the consequences of the withdrawal for them. “The withdrawal agreement should provide the necessary comprehensive, effective, enforceable and non-discriminatory guarantees for those citizens’ rights.

The Agreement should safeguard the status and rights derived from Union law at the withdrawal date, including those the enjoyment of which will intervene at a later date (e.g. rights related to old age pensions) both for EU27 citizens residing (or having resided) and/or working (or having worked) in the United Kingdom and for United Kingdom citizens residing (or having resided) and/or working (or having worked) in one of the Member States of the EU27.”


In other words, the EU has proposed, in some detail, precisely what the UK claims it wanted: a reciprocal deal, guaranteeing full rights. So why is the UK government not immediately welcoming and endorsing the EU proposal – indeed, proclaiming it as a great victory for the UK’s approach to the negotiations?

The answer is, of course, that what has actually happened is that the EU-27 have called Theresa May’s bluff. The UK is simply neither ready nor willing to make good on the very clear promise made by Vote Leave and our current Foreign Secretary.

“There will be no change for EU citizens already lawfully resident in the UK. These EU citizens will automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present”

The UK has indeed always been willing to grant EU-27 citizens permanent residence – although, as I wrote as long ago as August, the administrative difficulties of setting a cut-off date, a qualifying period and actually identifying who is eligible remain formidable. However, offering permanent residence in some form is not the same as guaranteeing that EU-27 citizens (and, of course, UK citizens elsewhere in the EU) won’t lose any of their rights – that is, that they will be treated “no less favourably than they are at present”.

As both David Allen Green (here) and Steve Peers (here) explain, those rights go far beyond residence and the right to work. They cover pensions, other benefits, access to healthcare, education and training and so on. Moreover – again, a point I raised shortly after the referendum – they cover the right to be joined by spouse and family. As I wrote then:

What about the Latvian who arrived here three years ago but whose husband and children stayed home, planning to join her when he finished his studies? At the moment, those rights aren’t in question. Similarly, what about the Briton and his Polish fiancé, planning next year’s wedding? Of course it is possible to draw rules that would allow in those deserving-sounding cases – but there will be almost equally deserving ones the other side of the line.

Preserving these rights was, of course, precisely what Vote Leave and our current Foreign Secretary promised:

“There will be no change for EU citizens already lawfully resident in the UK. These EU citizens will automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present.”

Indeed, taken literally, this promise – and the EU-27 offer – would mean that post-Brexit EU nationals currently resident here would have more rights than either UK citizens (who don’t have the automatic right to be joined by a non-EEA spouse) or than they would have if we’d voted to Remain (when David Cameron’s now-forgotten renegotiation would have meant they’d have lost some rights to benefits).

Now, there is no obligation for the UK to sign up to every dot and comma of the EU-27s proposal – in particular, the provocative suggestion that the European Court of Justice should oversee any deal (although, given the shameful behaviour of the Home Office towards EU citizens since the referendum, the desire for some grown-up supervision is understandable).

But there is absolutely nothing to stop the UK from saying, today, that it is prepared to accept a comprehensive deal, as proposed by the EU-27, that would guarantee all rights – except, that is, the fact that the UK government is neither ready nor willing to make good on its promises. It has been hiding behind the EU-27’s supposed unwillingness to offer a reciprocal deal. It has now been put on the spot; the ball is in our court.

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


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