During the second reading of the bill that will give the government the go-ahead to trigger Britain’s exit from the European Union, MPs had a chance to safeguard the rights of EU citizens after Brexit. An amendment, tabled by Labour MP Harriet Harman, would have forced the government to preserve the current residence rights of EU citizens in the UK at the time of the referendum vote on June 23 2016. But when the division bell rang on the evening of February 8, the amendment was defeated with 332 MPs voting against and 290 in favour.
The rejection of this amendment means that the future status of EU nationals in the UK still remains unclear. However, there are some suggestions that as the bill progresses through the House of Lords this and other amendments on EU citizens’ rights may be successfully added.
The prime minister, Theresa May, has made clear her desire to guarantee the rights of EU citizens to stay in the UK after it leaves the EU “as soon as possible”. But the government has been reluctant to make this guarantee until it has assurances that UK citizens living in other EU member states will be treated equally. This has left the 3.5m EU-born nationals living in the UK as bargaining chips in the upcoming negotiations.
There are, however, a number of options open to the government when it comes to making a decision about the rights of EU citizens to stay in the UK.
One idea would be to give residency to any national from the EU who is lawfully residing in the country by the point at which the UK ceases to be an EU member state. If the withdrawal process triggered by Article 50 begins as expected in March 2017, and stays within the two-year time frame, that point would be reached in March 2019.
A key point of debate here relates to the definition of “lawful”. Reports have already emerged in recent months of EU nationals being advised to leave the country when they apply for permanent residency. If an EU national has lived in the country for five years, they are eligible to apply for documents certifying their permanent residency, but there are a number of conditions they need to meet, which many may have been unaware of.
Determining who is lawfully resident is already overwhelming the Home Office and leading to errors in letters being issued to applicants, decisions being made outside a six-month period and documents being lost. Any scenario in which all “lawful” EU nationals are given the permanent right to remain will need to address these issues.
Another option would be to award the right to stay only to those EU citizens lawfully resident in the country by June 23 2016, the date of the referendum. The idea of setting a cut-off date is clearly to discourage EU nationals from moving to the UK before the withdrawal date and may even aim to encourage those that have arrived since June 23 to move back.
But if seriously considering this option, the government must remember that the UK remains bound by EU laws enabling free movement of persons up until the process of withdrawal is completed. So to suggest the day of the referendum, or any retrospective date before the withdrawal date, as a cut-off point for residency rights of EU nationals newly coming to the UK would be a very clear breach of EU law. The European Commission could possibly take the UK to court over this issue.
So should the government seek to award residency rights to all EU nationals present in the UK – regardless of whether they had been in the country for a year, or 15 years – it will need to be careful not to breach EU law when setting the cut-off date. It may even prevent the government from taking this option, as when it comes to negotiating “the best deal possible” with the European Union, both sides need to be on good terms. On the other hand, the commission is likely to wait to make an informed judgement on whether it is worth starting proceedings against a member state, particularly if that member state is seeking to leave the union.
Another option would be for EU nationals currently residing in the UK to continue to enjoy the rights of free movement, even after the UK ceases to be a member state of the EU. The argument for this centres on a 2004 directive which secured the rights of EU citizens who have crossed the border from one member state to reside in another. The UK agreed to this secondary piece of legislation, and some MPs argue that the law should remain applicable and citizens should be able to continue to enjoy the rights outlined by the directive.
The obvious question here is how these rights would be enforced. Will EU nationals whose rights under the directive are affected by the UK government – for example those told to leave the country – be able to seek help from the European Court of Justice? Or could they address the UK courts to protect these rights? Once the UK has withdrawn from the EU as a member state, any reference to EU law becomes a well-intended shell – easily shattered by political realities. This may well be an uncertainty the government is willing to accept.
The simplest solution would be a uniquely tailored citizenship status for EU nationals living in the UK. Just as the EU is considering associated citizenship for UK nationals living abroad, the UK could save itself time and money by doing the same. Associate citizenship would give UK citizens the opportunity to opt into some form of EU citizenship status, allowing them to continue to reside in and move freely between member states. The UK could offer EU nationals residing in the UK a similar status.
The UK has a track record of being innovative when it comes to citizenship and nationality statuses, due to its Commonwealth history. Now could be the time to add another form of British nationality and citizenship to the mix.
Most EU nationals living in the UK pay their taxes, raise children who hold British passports and care for British family members. A simple right to remain does not do them, or the UK’s strong connection with Europe, justice. A quick and simple solution would be to give them a unique status as citizens of the UK with particular rights attached to it, such as the right to reside and the right to access health care.
The government still has the opportunity to guarantee that no EU citizen currently living in the UK will be forced to leave after Brexit. There is no legal reason why it needs to wait until negotiations begin to make this assurance.
Anne Wesemann, Lecturer in Law, The Open University
This article was originally published on The Conversation. Read the original article.