Why cit­i­zens’ rights could be a stum­bling block in EU di­vorce

Pro­tec­tions for 1.2m Bri­tons on the con­ti­nent and 3.5m Euro­peans in Bri­tain should be easy to set­tle in the­ory, but there are ob­sta­cles

The Guardian - - NATIONAL BREXIT - Jon Hen­ley Where did the two sides stand be­fore talks be­gan? How do the UK and EU po­si­tions dif­fer? Po­ten­tial stum­bling blocks Fam­ily ties Mon­i­tor­ing mech­a­nisms

Cit­i­zens’ rights – the pro­tec­tions of­fered to all cit­i­zens of the Euro­pean Union, in­clud­ing free move­ment and res­i­dence, equal treat­ment and a wide range of other rights un­der EU law re­gard­ing work, ed­u­ca­tion, so­cial se­cu­rity and health – will be a key part of ne­go­ti­a­tions that take Bri­tain out of Europe.

Such rights are held by 3.5 mil­lion cit­i­zens from other mem­ber states liv­ing in the UK and by 1.2 mil­lion Bri­tish na­tion­als on the con­ti­nent. For Brus­sels, cit­i­zens’ rights are “the first pri­or­ity” of the ar­ti­cle 50 di­vorce talks. “We need real guar­an­tees for our peo­ple who live, work and study in the UK, and the same goes for Brits,” the EU coun­cil’s pres­i­dent, Don­ald Tusk, has said.

The UK gov­ern­ment has stressed in its Brexit white pa­per that it wants to “give peo­ple the cer­tainty they want … at the ear­li­est op­por­tu­nity. It is the right and fair thing to do.”

In the­ory, se­cur­ing th­ese rights should be one of the eas­ier parts of the Brexit ne­go­ti­a­tions. The is­sue has al­ready gen­er­ated ill-feel­ing. Claims by Theresa May that she tried to reach an early deal on re­cip­ro­cal rights but was re­buffed by mem­ber states drew a sharp EU re­minder that the topic could not be ad­dressed out­side the for­mal di­vorce talks. Fol­low­ing a suc­ces­sion of cases in­volv­ing long­stand­ing res­i­dents or their chil­dren be­ing de­nied per­ma­nent res­i­dency, the gov­ern­ment has also been ac­cused in Brus­sels of fail­ing to treat EU na­tion­als fairly and hu­manely. The gov­ern­ment has said it will make a gen­er­ous of­fer on cit­i­zens’ rights. But it has never said it is ready to se­cure all the rights EU cit­i­zens now have, which cover not just res­i­dency but a full spec­trum re­lated to ed­u­ca­tion, work, so­cial se­cu­rity and health.

Among the rights Bri­tons on the con­ti­nent have said they want se­cured, for ex­am­ple, are those to ac­quire cit­i­zen­ship, study, have their aca­demic and pro­fes­sional qual­i­fi­ca­tions recog­nised, work, run a busi­ness, move freely be­tween EU mem­ber states and re­ceive health­care, pen­sions and other so­cial ben­e­fits.

The EU27 have ac­cepted that list, and will ex­pect it to be recog­nised re­cip­ro­cally by the UK. They have also ad­dressed fears of Bri­tons on the con­ti­nent about be­ing left “land­locked” af­ter Brexit, promis­ing that UK na­tion­als set­tled in Europe will keep their free move­ment rights to set­tle else­where within the union.

In a de­tailed po­si­tion state­ment on the “es­sen­tial prin­ci­ples of cit­i­zens’ rights” pub­lished last month and handed to the UK’s EU am­bas­sador on 12 June, the EU27 de­manded “ef­fec­tive, en­force­able, non-dis­crim­i­na­tory and com­pre­hen­sive” re­cip­ro­cal guar­an­tees “to safe­guard the sta­tus and rights de­rived from EU law at the date of with­drawal”. Th­ese in­clude, ob­vi­ously, the right for all EU cit­i­zens liv­ing legally in the UK (and vice versa) on 29 March 2019 – Brexit day – to be deemed legally res­i­dent, the right to per­ma­nent res­i­dency af­ter five years, and to full equal treat­ment with na­tion­als with re­gard to jobs and ben­e­fits.

The EU27 be­lieve th­ese rights must ap­ply for life, not just to EU cit­i­zens liv­ing in the UK and Bri­tish cit­i­zens liv­ing on the con­ti­nent now, but to all who have done so in the past, at any time dur­ing the UK’s mem­ber­ship of the EU.

The EU also wants those rights to ap­ply to “cur­rent and fu­ture fam­ily mem­bers”, no mat­ter their na­tion­al­ity, who de­cide to join the right-holder af­ter Brexit, and to con­tinue to ap­ply to fam­ily mem­bers af­ter the di­vorce or death of the right-holder.

There is a lot here that an im­mi­gra­tion-fo­cused Con­ser­va­tive-led gov­ern­ment will find hard to ac­cept. How read­ily, for ex­am­ple, will it sign up to open-ended ac­cess to res­i­dence, and par­tic­u­larly ben­e­fits, in­clud­ing for fam­ily mem­bers who may ar­rive af­ter Brexit and may not nec­es­sar­ily be eco­nom­i­cally ac­tive? At present, it is con­sid­er­ably eas­ier for EU cit­i­zens to bring even non-EU spouses and other im­me­di­ate fam­ily to live with them in the UK than it is for Bri­tish cit­i­zens, thanks to strin­gent min­i­mum earn­ings re­quire­ments in­tro­duced in 2012.

The gov­ern­ment has long railed against its in­abil­ity to rec­tify this, with min­is­ters re­peat­edly say­ing they want to ex­tend the in­come thresh­old and in­tro­duce an English lan­guage test for non-Euro­pean spouses of EU cit­i­zens in Bri­tain.

It is al­ready do­ing its best to root out third-party na­tion­als mar­ried to EU cit­i­zens who have be­come Bri­tish cit­i­zens, with a test case in­volv­ing a Span­ishBri­tish dual na­tional and her Al­ge­rian hus­band be­ing con­sid­ered by 15 judges in the Euro­pean court of jus­tice (ECJ).

If Bri­tain bows to the EU’s po­si­tion on cit­i­zens’ rights and the court rules in favour of the Span­ish-Bri­tish na­tional, the gov­ern­ment would not be able to pre­vent, for ex­am­ple, a Venezue­lan spouse of a Span­ish cit­i­zen now liv­ing in the UK be­ing able to join them – even inn 15 years’ time. A sec­ond sig­nif­i­cant bone of con­tention is likely to be the EU’s in­sis­tence not only that ex­ist­ing rights for its cit­i­zens be main­tained in per­pe­tu­ity and ex­tended to fam­ily mem­bers, but that they be mon­i­tored by the Euro­pean com­mis­sion and en­forced by the ECJ or an equiv­a­lent body fol­low­ing the court’s rules.

This would mean that EU cit­i­zens liv­ing in Bri­tain would be able to ap­peall to the ECJ (or an­other ECJ-ap­proved ex­ter­nal body) if they thought the Home Of­fice or UK courts were not re­spect­ingg their EU rights.

Ac­cept­ing that con­di­tion would rep­re­sent a big climb­down by the UK gov­ern­ment, which has re­peat­edly said that “tak­ing back con­trol” of Bri­tish laws means it is de­ter­mined that Brexit must mean leav­ing the ju­ris­dic­tion of the ECJ.

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