Steve Peers

Introduction

This post examines the findings of a British Future inquiry into the post-Brexit status of EU citizens in the UK. It outlines the inquiry’s key recommendations concerning EU citizens residing in the UK after Brexit, proposes recommendations for UK citizens in the EU after Brexit, and analyzes the concept of ‘associate citizenship’ for UK citizens post-Brexit. The latter two points, while outside the inquiry’s scope, are addressed in parallel.

Inquiry Results: Recommendations for EU Citizens in the UK

The inquiry proposes that EU citizens residing in the UK and exercising their rights under EU law before a specified cut-off date should retain those rights post-Brexit. This stance aligns with the position of many prominent Leave campaigners during the referendum and reflects the views of Remain supporters who advocated for continued EU free movement within the UK. This approach aligns with the international law principle of ‘acquired rights’ and addresses ethical concerns surrounding the disruption of legally residing individuals’ lives.

The recommendation proposes a unique ’ex-EU’ status for EU citizens residing in the UK before the cut-off date, safeguarding their existing rights and enabling those eligible for permanent residency to maintain or apply for it. Individuals residing in the UK by the cut-off date but without permanent residency could acquire it within five years. New arrivals after the cut-off would fall under ‘ordinary’ UK immigration laws post-Brexit, potentially subject to negotiated agreements between the EU and UK.

This ’ex-EU’ status would preserve the same rights enjoyed under EU membership, ensuring access to employment and equal treatment. This approach offers several advantages, including ease of reciprocity for UK citizens in the EU, simplified administration compared to new status applications, inherent legal clarity due to existing EU legislation and court rulings, and consistency with the UK government’s ‘Great Repeal Act.’

The recommended cut-off date aligns with the official start of the EU exit process, striking a balance between fairness for existing residents and acknowledging the temporary nature of EU free movement rights for those arriving after the notification date. The report advocates for unilateral action by the UK based on ethical considerations and the potential for such a move to de-escalate political tension and facilitate bilateral agreements.

UK Citizens in the EU

The EU’s current refusal to negotiate the post-Brexit status of citizens until the UK formally submits its withdrawal notice presents a challenge. However, it’s anticipated that this matter will be prioritized once negotiations commence, ideally leading to a reciprocal ’ex-EU’ status agreement. Incorporating such a provision within the Article 50 TEU framework would streamline its implementation without requiring unanimous Member State approval.

Including legally binding provisions in the withdrawal treaty outlining the scope of the agreement and allowing for supplementary joint measures is crucial. The British Future report suggests how the UK could implement this legally binding obligation domestically. The EU could achieve this through a regulation or directive establishing general rules for ex-EU status and amending existing EU laws.

Associate EU Citizenship

The recently debated concept of ‘associate citizenship’ for UK citizens post-Brexit, potentially encompassing all UK citizens and not just those residing in the EU, merits further examination. Initially proposed by a Luxembourg MEP and championed by European Parliament representative Guy Verhofstadt, this idea necessitates clarification.

Firstly, characterizing Verhofstadt as an ‘EU negotiator’ with the power to include this concept in his ’negotiating mandate’ is inaccurate. Article 50 TEU grants the EU Council authority over negotiating parties, typically delegating this responsibility to the Commission. The European Parliament’s role primarily lies in its power to approve or reject the final Article 50 treaty.

Secondly, the notion that EU citizenship doesn’t exist due to the EU not being a state is factually incorrect, as outlined in Article 9 TEU. However, EU citizenship is contingent upon holding citizenship of an EU Member State, making it likely that UK citizens will forfeit this status post-Brexit unless they possess dual nationality.

Establishing ‘associate citizenship’ for UK citizens would necessitate Treaty amendment and ratification by all Member States, or individual Member States offering their citizenship to UK citizens. Both scenarios appear improbable. A more feasible approach would be to preserve specific EU citizenship rights, particularly free movement rights, for UK citizens. This could be achieved through EU immigration law, potentially granting a special ’ex-EU’ status to all UK citizens. However, addressing the entry of UK citizens into the EU for work post-Brexit falls under the purview of individual Member States, as per Article 79(5) TFEU.

The concept of ‘associate citizenship’ lies outside the scope of negotiations between the EU and the UK, as any decision would be unilateral. While UK reciprocity might be a factor for Member States, ultimately the decision rests with the EU.

Verhofstadt’s role as a ’negotiator’ in this context remains unclear, as the European Parliament lacks the authority to compel other EU institutions or Member States to consider ‘associate citizenship.’ Without a concrete plan, Verhofstadt’s advocacy for this concept risks raising false hopes.

The potential for UK citizens to acquire EU citizenship post-Brexit, even if unilaterally offered by the EU, highlights the limited control of the UK government in such matters. This emphasizes the importance of respecting the choices and values of individuals who value EU citizenship.

Barnard & Peers: chapter 13, chapter 27

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