European law expert: UK has sparked race to the bottom that will strip citizens of their rights

Citizens’ rights have been left in limbo by Brexit. Andy Rain/EPA

Now that both the UK government and the EU have set out their proposals for citizens’ rights after Brexit, it’s clear that both take the concept of reciprocity as a starting point.

But the EU and the UK have a profoundly different understanding of what reciprocity means. While the EU approaches reciprocity as a moral principle and legal guarantee in its offer, the UK merely uses it as a technique to delay making commitments and with which to make threats that its offer is dependent on the EU doing the same. But because the substance and legal guarantees of the two proposals is very different, the impact on people’s lives would be too.

There are good reasons to argue that unilaterally guaranteeing citizens’ rights is not actually the most appropriate solution for Brexit negotiations. During the recent UK election campaign, Labour offered to unilaterally guarantee the rights of EU citizens living in the UK. This seems morally the right thing to do as it would avoid making these citizens a bargaining chip in Brexit negotiations. But at the same time, it would make UK citizens living elsewhere in the EU more exposed to trade-offs between their rights and other points under negotiation.

Unilateral solutions also fail to recognise the cross-border dimension of the lives of the individuals involved, both EU and British citizens. EU citizenship provides a comprehensive set of rights, such as the recognition of qualifications, healthcare co-ordination between member states and rules to transfer entitlements, such as pension contributions, to another country. Such rules require international solutions and cannot simply be resolved by unilateral action from one party at the negotiating table.

Even offering British citizenship to all EU citizens in the UK, as former Greek finance minister Yanis Varoufakis has suggested, is not an appropriate solution as it would not account for such cross-border issues. Not all EU countries allow dual citizenship and some people may have to give up their citizenship of origin if they want to take British citizenship.

The case for reciprocity

The concept of reciprocity is therefore a more appropriate guide to dealing with the rights of the 3.3m EU citizens in the UK and 1.2m British citizens in the EU after Brexit.

There is a strong moral argument for reciprocity. Both British citizens in the EU and EU citizens in the UK have built up their lives in a foreign country in the legitimate expectation that EU citizenship would protect them. They were never asked to obtain visas, were never told their stay would be temporary, and (with the exception of national voting rights) were treated in pretty much the same way as nationals. They deserve to be treated equally in the opportunity to retain the life and rights they have legitimately acquired.

David Davis and Michel Barnier at the start of Brexit negotiations. Stephanie Lecocq/EPA

The EU has taken reciprocity seriously as a moral starting point. It has offered that all the rights of both EU citizens in the UK and the British in the rest of the EU will be protected for life. It wants to ensure this via an international agreement between the UK and EU that sets out in detail citizens’ current rights for life, to be protected by judicial control of the Court of Justice of the EU.

Under such an international agreement, which can be part of the UK’s Article 50 withdrawal agreement from the EU, or be a separate citizens’ agreement, each set of citizens acts as a safeguard for the rights of the other. Without such an international agreement, these citizens lose each other as safeguards and will be at the whim of national governments, which will undoubtedly undermine the rights on which they have legitimately built up their lives.

The EU might be willing to compromise by accepting an international court other than the Court of Justice to control the agreement, but legally safeguarding reciprocity at an international level is a strict condition for the EU in its Brexit negotiating position. As Antonio Tajani, president of the European parliament, said on a recent trip to the UK: “For us, the agreement is [to have the same rights] as today [and] yesterday, tomorrow … For us, it is a priority and it is a red line.”

Moral and legal principle

In contrast, the UK government’s rhetoric fails to recognise reciprocity as a moral and legal principle. Its offer is far less generous than the EU’s. Unlike the EU, the UK does not propose to guarantee the rights of EU citizens for life. It is ambiguous on who can retain them, and it undermines some existing rights, such as the ability for EU citizens to bring a family member to live with them in the UK.

Its proposal on citizens’ rights is actually unilateral: it intends to act unilaterally on the residence status of EU citizens by turning them into immigrants under general UK immigration law. This implies that EU citizens living in the UK will lose rights that were specific to them.

If the EU “reciprocates” on this offer, it would mean each of the 27 individual member states would deal with the residence requirements for the British living in their countries. This would leave the British in the rest of the EU at the mercy of 27 different and changing immigration laws on which the UK would no longer have any leverage.

So, instead of accepting reciprocity as a moral principle and legal guarantee, the UK is turning it into a race to the bottom at the expense of both EU citizens in the UK and its own citizens in the EU.