The rights of EU citizens living in the UK are not guaranteed. An amendment that would have given them post-Brexit rights regardless of the outcome of negotiations was voted down in the Commons. Ruvi Ziegler says the government’s argument – which says that by refusing to guarantee EU citizens’ rights, it is protecting British people living in the EU – is not only logically flawed, but morally indefensible. Furthermore, given the likelihood of drawn-out exit negotiations, they will remain in limbo for some time yet.
On 8 February, the EU (Notification of Withdrawal) Bill passed Third Reading in the House of Commons, by 494 votes to 122. MPs rejected all amendments to the 133-word Bill. This post concerns the rejection by 332 votes to 290 of an amendment tabled by Harriet Harman, Chair of the Joint Committee on Human Rights (JCHR), designed to ensure that post-Brexit rights of non-UK EU citizens ‘lawfully resident in the UK on 23 June 2016’ will be guaranteed before the triggering of Article 50 and irrespective of the outcome of negotiations between the UK and Union institutions.
Only three Conservative MPs voted for the amendment, after the Home Secretary had sent a letter to select MPs assuring them that ‘nothing will change for EU citizens, whether already resident in the UK or moving from the EU, without Parliament’s approval’. The Government was joined by the DUP, UKIP, and six Labour MPs, including Gisela Stuart. Stuart, former Chair of ‘Vote Leave’, chaired a British Future Inquiry into ‘Securing the status of EEA+ nationals in the UK’. The Inquiry’s December 2016 report concluded that ‘retrospective changes to [EEA+ nationals’] status are unfair as [those] who have settled in the UK could legitimately expect their status to remain secure when they moved here…The Inquiry recommends, as a cut-off date, the day that Article 50 is triggered’. Notably, this is a later ‘cut-off’ date than Harman’s amendment.
The follies of the Government’s reciprocity argument
There are substantive difficulties with the Government’s insistence on reciprocity, as reflected in Section 6 of its White Paper. The Commons debate revealed little zeal among MPs for making non-UK EU citizens’ status conditional upon reciprocity, let alone desire for en masse expulsion, should negotiations fail.
First, the claim that, the Government is protecting UK citizens residing in the EU-27 by refusing to unilaterally and unconditionally give non-UK EU citizens the reassurance they seek is fanciful (I have written about their future status). Organisations representing UK citizens resident in Germany, Gibraltar, France, Spain, Finland, and Belgium signed a joint letter to the PM urging her to unilaterally offer guarantees to non-UK EU citizens. There is no evidence of hostility against UK citizens in the EU-27, and assigning blame to Union institutions for supposedly refusing to reach a reciprocal agreement before the UK serves its Article 50 notification is a red herring.
Second, the Government cannot have it both ways: if the fate of non-UK EU citizens will not depend on the outcome of the negotiations, the refusal to remove the uncertainty and to clarify the ‘cut-off’ date before negotiations commence is puzzling. The Government’s insistence on reciprocity logically implies that, if negotiations fail, rights of non-UK EU citizens may be curtailed. In 2017, such a ‘bargaining chips’ approach is morally indefensible.
Third, whereas it is within the unilateral gift of Westminster to secure the status and rights of non-UK EU citizens irrespective of the withdrawal agreement, reciprocity ipso facto requires agreement, and it is far from certain that it will be reached at an early stage of the negotiations.
It bears mentioning that non-UK EU citizens (except Maltese, Cypriot, and Irish citizens), and UK citizens who have been residing abroad for more than 15 years, were not eligible to vote in the 23 June 2016 referendum, despite being (among) those most directly and adversely affected by its outcome (analysis).
The road ahead
The Bill now moves to the House of Lords. A #RightToStay Mass Lobby of Parliament, co-organised by the 3 Million and New Europeans, will take place on 20 February, coinciding with the ‘One Day without Us’ National Day of Action and, intriguingly, with the Bill’s Second Reading in the Lords.
Several Peers have already tabled amendments to the Bill, including in relation to non-UK EU citizens. One replicates the JCHR stipulation, whereas another extends beyond ‘rights of residence’ also to ‘other rights enjoyed by EU citizens’. The Government, which does not have a majority in the Lords, issued thinly veiled threats that the future of the upper house is at risk were Peers to scupper Brexit; since securing the rights of non-UK EU nationals does not stand in the way of triggering Article 50, one remains hopeful that an amended Bill will be sent back to the Commons.
This post represents the views of the author and not those of the Brexit blog, nor the LSE. It first appeared at the Oxford Human Rights Hub blog.
Dr Ruvi Ziegler is Lecturer in Law at the University of Reading. He advises New Europeans.
A heartfelt argument, but even though I am myself an EU national living in the UK – and therefore completely affected by this issue – I cannot – with some personal regret – agree with it. There are few points on which reciprocity between the UK and the EU27 are on the same subject matter and at roughly the same degree of intensity. This happens to be one of them. I can see the value of linkage, and I cannot see why the UK would give up on this negotiating chip. Linkage is more likely to become more odious when the issues are materially different, and the value of the negotiating chips is radically different. There is a difference between saying give me your money and I’ll give you something worth about that much, on the one hand, and saying give me your money and I’ll let you live. I think we are in the territory of the former.
As to morality, I do think there is moral equivalence on both sides. And that gives me the comfort that you seem to lack. I would hope furthermore that because of the logic of reciprocity the matter is solved relatively quickly on both sides and that this, at least, makes its way into a final Article 50 divorce agreement, regardless of the financial bill or other matters. But to pretend that this is solely a matter for the UK and not at all for the EU27 strikes me as unfair.
Please could someone explain to me why government does not seem to consider a seemingly obvious compromise? Why does the government in the Brexit Bill not unilaterally guarantee EU nationals’ rights but limit that guarantee to only those EU nationals in the UK whose EU country reciprocates?
At least then the relevant EU nationals know where to go to safeguard their livelihoods, their own governments.
Why don’t you answer the same question yourself can a UK national come into your country and within two to three months he or she is given the right to stay permanatly
No l don’t think so it does not work that way every country has rules and regulations, the way l see it it seem you just want to come in and get what you want at the flick of a finger
No it does not work that way .
The vote in the commons was a mistake every EU must stay in Britain for up to 4 5 years before they are given permanent resident .We have had rules and regulations in this country before Brexit and it must stay that way.
I don’t understand your responses. Parliament has been discussing whether, as part of the Brexit Bill, EU nationals living in the UK (many of whom for many years) should be guaranteed the right to stay after Brexit, before each of the EU countries have guaranteed the same for UK nationals living in those countries. I was just saying that I don’t understand why the UK government is not able or willing to provide such guarantee unilaterally for those EU nationals living in UK whose EU countries guarantee the same for UK nationals living in those countries. I don’t understand why some grand agreement needs to be made with all 27 EU countries in one go (which one or two unnamed EU countries reportedly are blocking). A unilateral, conditional, country-specific guarantee from the UK would be an easy solution that puts pressure on other EU countries to reciprocate soon and provides an acceptable level of certainty to the indivuals concerned in the meantime.
Totally agree with your point.
The above article is waffle. It does not address the matter in hand.
Guarantee our Citizens abroad and we shall guarantee theirs.
By refusing to guarantee our citizens rights abroad, it is not the UK whom are turning people into bargaining chips.
2 way street.
I agree with you too to ,the EU are taking a Mick,they have not even made any vote in their parliament to guarantee the UK citizens and the parliament are voting for them ,complete rubbish ,they have refused to guarantee the uk citizens I don’t understand why the parliament should be voting for them to stay without getting no guarantee from the EU .
It is not the Lords or the opposition that are “taking the Mick” (as per Sunday olusanjo).
It is government/PM that is acting stupidly and immorally. The government should have offered unilateral, conditional, country-specific guarantees many months ago (even before they blocked any guarantee arrangement in the Commons), but they were too busy with party politics, with offending everyone in Europe to ensure that any Brexit would inevitably become “hard” (good luck!) and with pandering to the misguided sentiment expressed in your responses to my question.
Only the 27 EU member states can offer these kind of guarantees to UK nationals in Europe, not the EU. I know that people enjoy EU bashing in this country on matters even when the EU has nothing to do with them. It would help if people stopped blindly faring on the agenda-based writing in The Times, The Telegraph, The Sun, The Mail.
EU nationals in UK are net contributors. A relatively high proportion of UK nationals in European member states are aging heavy-users of local healthcare. Britain’s negotiating position would be morally so much better if it simply provided unilateral guarantees and got on with the job (however disastrous it will be).
Websearch, google or whatever ‘Donald Tusk UK citizens within EU’
End of discussion.
There is nothing “morally indefensible” about the UK governments position whatsoever and to imply that it is, is absurd.. There are many EU citizens living and working here, who are bringing much needed skills and making a very real overall net financial contribution to the UK and they are very welcome and I would like to see those people stay after we have left the EU. However, that has to be a reciprocal agreement whereby those UK citizens living, working and making an overall net financial contribution in other EU countries are allowed to stay there after we have left the EU.
To say that we should unilaterally say that all EU citizens can remain is ridiculous, there are many EU citizens living and working here who are a net drain on the economy, as well as some who are not making any financial contribution whatsoever, why would, or should, we let them remain?
I agree with Karl
On the positive side …
“many EU citizens living and working here, who are bringing much needed skills and making a very real overall net financial contribution to the UK and they are very welcome and I would like to see those people stay after we have left the EU”
But we have to look at the negative …
“there are many EU citizens living and working here who are a net drain on the economy, as well as some who are not making any financial contribution whatsoever, why would, or should, we let them remain?”
Thanks for the interesting post Ruvi…
In terms of the morality questions Kant would fully agree with you Ruvi and would reject the view that humans can be bargaining chips in games of States… From a utilitarian point of view the moral position might look different, but then one would need to go down the rule of a very clear and calculated tit-for-tat. And where would you stop? Do you then calculate the value of people vs the value of goods? Eg 600.000 GBP for the Romanian-trained doctor working in the NHS vs exports of goods or of banking services to the EU? But would you use the 600.000 GBP figure which is the cost for training a doctor in the UK or would you use the cheaper Romanian costs? Would the exports of goods and services in this example only be allowed in the total value of 600.000 for that person, or would it be per year?
What is interesting is that making this part of the Brexit negotiations might increase the chances for a hard Brexit without withdrawal agreement. Why? Because immigration and the rights of third country national to live in EU states is not strictly within the EU’s competence. Thus, any agreement would not need to be made with the EU but with also with the 27. This would then give each and every parliament, in some cases two parliaments or even regional parliaments (see Wallonia CETA story), the chance to block the Brexit deal.
Certainly, not something that increases the likelihood of an easy deal within the 500 working days available under Art 50. It rather seems to increase the leverage of even the smallest states.
It cannot be right that we could end up with a situation whereby a French/German National has the right to live and work in the UK whilst a British National does not have the right to live and work in France of Germany.
These things have to be done on a reciprocal basis.
I sometimes wonder if Remoaners actively want the UK to get a bad deal.
we all have to respect the votes of the referendum despite the fact that the remain do not like it sometimes it does not have to go everybody’s way ,eg in the World Cup only one team wins while. Others lose ,those. Who lose will have to accept it and stop fighting against it , just accept it and let sleeping dogs lie.
Dr Ziegler is not an uneducated person, yet his arguments fly in the face of the real world, where dealings between parties such as countries and multinationals are a tug-of-war.There is reciprocity, but there is also the unequal outcome resulting from the differential in power and negotiating skill between parties.It would be nice to expect governments in the western democracies to never put a price on the life and wellbeing of a citizen of the world and to never trade the most basic human rights in a deal, or use people as pawns.The reality and the facts of life, however, are not be ignored.Although, as in this matter, non-UK EU nationals in the UK may speak their case, and play politics in any which way to their hearts’ content, it is doubtful that it will help such EU nationals in the UK to muddy the waters and advance an argument which flies in the face of the real world and which is likely to be given short thrift by the current UK executive under May, or her successor.
As with Brexit, there are parties with significant political clout and financial means who seek to undermine the legitimacy of the electorates and system of government in the western democracies.Not that I would deny anyone the right to play politics.It is said, all is fair in love and war.This includes politices.Dr Ziegler wishes for no person or group of people to be pawns in a tug of war or a negotiating tussle between countries.Well, he should have his work cut out.Indeed, there is so much to do in that regard, in this world, he might be better working for Oxfam.As to the technicalities of this case:
Since the formation of nation-states in Europe and the rights and privileges won by and accorded cittizens of nation-states, such have been acquired by citizens as of right and as and when entitlement accrued, etc.This means inevitably that they who are not citizens of a certain nation-state miss out as of right.There are separate arrangements, differing for each country, or the same for a host of countries per mutual agreement after negotiations, somtimes very lengthy negotiations, for permanent residents, temporary residents, refugees and so on.This is a fact known to almost all political observers/participants.Ne need to spell it all out.In this case, the UK has decides per referendum etc. to get out of the EU.This in the face of strong objections from a host of politically active persons and groups who, for reasons best known to themselves, will not accord the UK and its citizenry the basic human right and civil right of self-determination.This is a fact that the campaigners against Brexit deny or at least will not voluntarily admit to.The implications for the practical application of democracy are obvious, and will in due course be dealt with as and when it becomes a critical matter.
For now, it is well to realise that the intransigence on the part of EU elements which seek to stymie and perhaps even sabotage the negotiations between the UK government and the remaining EU countries’ representatives and the remaining EU countries’ negotiators as delegated by the Commission, the EU anti-Brexit ill-will, which is standing in the way of a sensible mutual agreement fair to all parties.That is not too difficult to achieve once all parties involved decide to let the UK go on a friendly basis, as of right.
Technically, The status of EU citizens living in member states other than their own by citizenship derive their status by means of their country of citizenship’s membership in the EU as well as that of their host country.Obviously, if the host country withdraws, so does the status derived from the earlier relationship.Likewise, the UK withdrawing will have its citizens lose status in the remain EU countries.So far, so obvious.Apart from falling back on earlier agreements and arrangements, which allowed migration and permanent and temporary residency of various countries by mutual consent, there is now an obvious case for sensible arrangements to deal with this situation.To assist such sensible outcome, as in to allow a grandfather clause all round, it would be helpful if people did not make outrageous and unsupportable claims.What is possible is not always what is fair, but what is fair gets a better chance if people are reasonable and refrain from muddying the political waters and seek special deals at the exclusion of others without basis.Let us remind ourselves that as Europeans, within or without the EU, we are most privileged compared to most other world citizens.A breakdown of national borders in Europe would put paid to that wealth and wellbeing relative to most of the world.Good neighbours keep good fences, and good fences make for good neighbours and a well-functioning economy in a peaceful neighbourhood.
Excellent, it seems you finally got everything on the recipe for a classical Brexit debate:
a) Two ounces of tit for tat: but not too much, in particular the other way around, because then the big bad nasty EU is punishing little Britain. Stop no! Not little Britain, the Great British Empire is so powerful that the EU could not punish it because it would destroy itself)
b) One ounce the stab-in-the-back legend: just in case things don’t work out in the end with all the milk and honey. So you can at least blame the EU and the back-stabbing Remainers who should have shut up when they lost, and with their loss in the Referendum they lost all rights to make political arguments. Yet, make no mistake this certainly would not have been the case if the Brexiteers would have lost: The righteous struggle for ‘self-determination’ must go on!
c) One ounce of household comparisons: But again not too much because the Brexit is not like a divorce otherwise one might end up coming to the conclusion that they are typically: costly, lengthy and not really amicable.
d) Add a dose of democracy but be careful!! Too much because you might end up with rights for minorities and maybe the chance that the majority changes…
e) And to round it all up add some parts of ‘the people’ talk. This goes nicely also with ‘the enemy of….’ or ‘elites’
The lovely stew is cooking and doesn’t need anything any more. I ll go grab a French wine and some Italian Parma while I can still afford.
I agree with the previous comment (Jules) 100%. I should point out that I am a proud British citizen. But I am also a realist in international relations. The UK is taking on TWENTY-SEVEN other countries in the forthcoming negotiations – so a little humility by the UK would in fact HELP NOT HINDER the talks process. Obviously the UK needs to stand up for it’s interests, but it must be realistic as to where power lies in today’s world.
A little sub-point – the EU country with far and away the most citizens in the UK is Poland, with around a million. So much for Polish help in the Second World War, and for helping a country which suffered much more than the UK in the Second World War, and the Cold War which followed it.
The logic of this article, such as it may be called logic, is contradictory. In his first point, the writer asserts there is no hostility towards UK citizens from the EU 27 and, therefore, that arguing for reciprocity is a red herring.
That argument falls apart in itself since it does not require something as extreme as hostility for other nations to justify removing or compromising the rights of UK citizens living in the rest of the EU post-Brexit. All kinds of issues may emerge during Brexit negotiations that could see members of the EU 27 ’regrettably’ or otherwise decide they should restrict or remove the residency rights of UK citizens.
Then, in point 3, the argument is made that any deal on the matter will require agreement among the EU 27 and this may not be easy to reach. This is a fair point in itself but it contradicts the first point (no need to worry!) and serves as an argument FOR reciprocity.
It is regrettable that people’s lives are being undermined by the lack of clarity here. But if the idea of freedom of movement among EU countries is important, surely we must learn from this that those who build lives and livelihoods on the back of such freedom need to be protected at an EU level by an agreement that their rights will be protected in the event that any country triggers Article 50. Otherwise, should another country choose to leave the EU, a similar impasse is highly likely to recur.
Why would it not?
Tony Scott – The Government is not acting immorally or stupidly. Whether you like it or not those representatives of the EU who will be negotiating the terms and conditions of our leaving the EU have made it very clear that formal negotiations cannot commence until we have triggered article 50 and those negotiations include the fate of EU citizens, here and Brits abroad, which will not be negotiated with the UK by individual member states
EU Nationals in the UK are not, as a group, net contributors to the UK economy, they consume far more than they contribute. There are a significant number who are not working at all and contribute nothing, the vast majority of those who are working are in low paid jobs and receive a variety of in work benefits which subsidise them and only a small number of people who are in highly paid skilled jobs and it is these people who could be considered net contributors and who we need to keep here.
I don’t think citing an organisation that claims to represent UK Citizens abroad is the slam dunk argument you think it is.
Most EU nations would gladly reciprocate. Unfortunately, the “all or nothing” aspect of the EU is one of its downfalls. I don’t think it fair or honest to put this all on the UK.