The way that EU27 citizens in the UK have been used as bargaining chips in the Brexit negotiations is woeful. Unfortunately, write Ruvi Ziegler (University of Reading) (left) and Brad Blitz (Middlesex University and LSE), the EU has not helped matters by conceding that the rights of UK citizens living in the rest of the EU were negotiable, too. This undermines the principle of freedom of movement, which is a fundamental tenet of the EU. When it meets on 14 December, the European Council should end this deplorable state of affairs and guarantee the rights of UK citizens in the EU, thereby putting the ball squarely in Britain’s court.
Do EU citizenship rights matter? This is the question the European Council needs to answer when it meets this month. The answer is vital not only to the Brexit negotiations, but to the future of the European Union itself.
Since the Maastricht treaty, signed just over 25 years ago, the right to the free movement of persons has formed the basis for substantive EU citizenship rights. Today, EU citizenship means much more than allowing EU nationals to work in another Member State. In addition to a series of political rights, the scope of EU citizenship applies to dependents of EU citizens, and under certain circumstances to other family members as well.
Millions of people have moved across EU Member States where they have built careers, founded families, and established a social identity as EU citizens. As the European Parliament affirmed in October, EU citizens who took up residence in another EU Member State did so on the basis of rights under EU law and on the understanding that they would continue to enjoy those rights throughout their lives.
That presumption is no longer secure. As negotiations over the UK’s withdrawal gather pace, citizenship rights are also up for grabs.
Many blame Britain for this state of affairs. They have good reason to do so. In June, the UK government published a policy paper which suggested that the future rights of EU27 citizens currently in the UK depended on reciprocal commitments agreed with the EU institutions. In her Florence speech in September, Theresa May offered to give protections for EU27 citizens living in the UK in the withdrawal agreement. What she did not say was that her government has inserted a clause into the UK’s EU (Withdrawal) Bill which, if passed unamended by the Westminster Parliament, would give a minister – not Parliament – free rein to limit or remove the rights that domestic law presently grants to EU27 citizens.
After eight months of negotiations, it is still difficult to divine the UK’s intentions. Theresa May’s cabinet have repeatedly contradicted her – and each other. When pressed in a radio interview last month she was unable to unequivocally assure EU27 citizens in the UK that, in the event of a ‘no deal’, their rights will be maintained.
Unfortunately, the UK is not alone. When the European Council agreed in April to enter into Brexit negotiations with the UK government, both sides conceded that citizenship rights were negotiable. The rights of EU citizens on both sides of the Channel were put on the table alongside the question of the UK-Irish border and the financial settlement of the UK’s obligations. As a result, rights are treated like tradable commodities. In its guidelines of 28 April 2017 authorising the withdrawal negotiations, the Council outlined the principle that ‘nothing is agreed until everything is agreed’ and that individual items including citizenship rights could not be settled separately.
By continuing with the current mandate, both the European Council and the UK government are potentially violating the rights of millions of EU citizens. As Dimitrios Giannopoulous has argued before the House of Lords’ EU (Justice) sub-committee, the creation of prolonged uncertainty and distress as a result of the Brexit negotiations may itself be a violation of the right to family and private life in Article 8 of the European Convention on Human Rights.
The way in which the negotiating mandate is implemented also conflicts with the European Parliament resolutions, which have repeatedly stated that any withdrawal agreement must incorporate the full set of rights citizens currently enjoy, on both sides of the Channel. The Parliament insists that the final agreement must ensure reciprocity, equity, symmetry and non-discrimination, for EU27 citizens in the UK and UK citizens in the EU27. The European Parliament has a veto: it can reject the Withdrawal Agreement.
This situation risks creating further long-lasting harm. Beyond the distress caused to some three million EU27 citizens in the UK and over a million UK citizens in the EU27, and beyond conflict between the EU’s institutions, the Brexit negotiations are damaging the EU as whole. Specifically, the conduct of the Brexit negotiations now imperils the right to free movement, one of the four fundamental pillars upon which the Union rests. If European Union institutions cannot guarantee the rights of EU citizens, then the costs of relocation and settlement in another Member State increase dramatically. Why would you choose to make your life elsewhere, only to build a house on shifting sands?
There is still one chance left. The European Council, convening in December, can revise the mandate given to its chief negotiator Michel Barnier. It can provide unilateral guarantees that the rights of UK citizens in the EU27 will be protected. Such a strategy would at least unblock the uncertainty and put the ball squarely in the UK’s court. A game that should never have been played may then be brought to an end.
This post represents the views of the authors and not those of the Brexit blog, nor the LSE.
Brad Blitz is Professor of International Politics at Middlesex University, Visiting Professor at the Institute of Global Affairs at the LSE and author of Migration and Freedom: Mobility, Citizenship and Exclusion.
Reuven (Ruvi) Ziegler is Associate Professor in International Refugee Law at the University of Reading, Academic Fellow of Inner Temple, and author of Voting Rights of Refugees. They advise New Europeans.