24 November 2017

Of the key issues to be covered in the EU withdrawal agreement, the gritty negotiation is happening on citizens’ rights. The UK is making all the concessions, and they may need to make more before sufficient progress is made, argues Joe Owen.

Reaching agreement on citizens’ rights isn’t as easy as writing a cheque and it can’t be postponed. An agreement will rely on technical detail, underpinned by political compromise, and progress is already too slow for the millions of citizens who remain unsure of their status come March 2019.  

The EU published a working paper on citizens’ rights back in May, followed by an official position paper from the UK Government a month later. The documents made it clear this wasn’t a simple case of ‘guaranteeing rights’ and there were differing views on exactly what rights to guarantee, the process through which it could be done and the mechanisms for enforcement.

Talks kicked off five months ago and the pressure is mounting on both sides to achieve ‘sufficient progress’ by December. We are repeatedly told that we are within “touching distance” of a deal. But from the outside, it looks like the same stumbling blocks remain.

The big issues on citizens’ rights are still the same as they were on day one of talks

Following the lead of the Institute for Government the negotiating teams have been jointly publishing comparison tables on citizens’ rights, showing the areas of agreement and where issues still remain - although none have appeared since the end of September. 

The areas highlighted red in the first comparison table came as no surprise.

There was disagreement over the role of the European Court of Justice (ECJ). Likewise on the process for registering nationals, the EU felt it should be “declaratory in nature” with no application process, while the UK wanted a carefully managed Home Office system for testing eligibility.

Both sides saw the scope differently - whether ’posted workers’ or voting rights could be included - and there were questions on the rights of future family members and family reunification.

Fast forward to now and the same intractable issues are still at the centre of the debate.

Where things have moved on citizens’ rights, it’s because the UK has been willing to budge

Two weeks ago the UK published its proposal on administrative procedures in an attempt to move things forward. While it doesn’t accept the EU’s declaratory approach, the UK cedes ground on areas that the Institute for Government, along with many others, have called for.

The proposal recognises that the existing process for permanent residence is not fit for purpose and that the UK can’t be dogmatic on timelines. It scraps the requirement for Comprehensive Sickness Insurance and the reams of paperwork to cover absences from the UK, also offering to use HMRC data to lighten the load on applicants. This new system shows a willingness to listen from the UK team, while also reducing the administrative load on government.  

The UK has offered proposals on enforcement as well. It’s said that the withdrawal agreement will be implemented through an act of Parliament, helping to entrench the rights of EEA nationals in law. This doesn’t offer the ECJ the decisive role the EU wants, but it does start to chart a path to compromise. There may well be more movement needed to unlock the next round of talks.

The EU, on the other hand, is yet to blink. In most areas, even the wording that sits in their column of the comparison tables hasn’t changed. They’ve left it to the UK to make the big moves.

The UK may need to make further concessions on citizens’ rights to make sufficient progress

For some Brexit sceptics, this will reinforce their view that the UK is too weak and too inexperienced to get concessions from the EU. For those who are more optimistic about Brexit, it’s just proof that the EU is inflexible and a hard-line approach is the way to cut through.

But the EU argues that both sides misunderstand the premise of the negotiations. Michel Barnier says these talks are not about concessions and instead the focus should be on finding “shared solutions”. The talks suggest his team see it as the UK’s responsibility to come up with these solutions.

One area where it’s hard to avoid a concession of some sort is on family reunification. Currently, an EEA national living in the UK can be joined by a family member from anywhere in the world. The UK Government has opted for a stricter regime for its own citizens, who are only entitled to bring non-EEA family members to the UK if they earn over £18,600 and the spouse passes an English language test.

The choice after Brexit appears relatively simple: either EEA nationals lose their current rights, or they retain them and have more rights than UK citizens, or rules for UK citizens are relaxed.

The EU will oppose the first, while the UK will find both of the other options very difficult politically. Sooner or later a decision will need to be made, even if it is slightly fudged by offering EU citizens a period where their rights are retained, as David Davis has suggested.

Based on progress to date, you’d be wiser to put your money on the UK blinking first.

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