Both the EU and the UK have repeatedly stated that they want to secure the rights of the 3m EU citizens in the UK and the 1.5m British citizens in the EU as they negotiate their separation.
But those rights have still not been secured and these 4.5m people still face dramatic legal uncertainty. They have no guarantee they will have a right to stay in the country they’ve chosen to live in. Beyond that, they don’t know if they’ll be able to have health cover, work or even keep their families together.
In its Brexit negotiation guidelines, the EU made a generous and detailed offer. It proposed to guarantee, on an equal basis, both the rights of EU citizens currently residing in the UK and British citizens residing in the EU.
The UK government, on the other hand, has been comparatively vague on the subject. That leaves the potential for all these citizens to be used as bargaining chips in the Brexit talks ahead. Their future could be negotiated against the UK’s divorce settlement or access to the European market and future trade arrangements.
And since the proposed negotiation method is based on the principle that “nothing is agreed until everything is agreed”, the fate of 4.5m people depends on the very uncertain outcome of negotiations on all other withdrawal issues. If negotiations fail, these citizens fall into a complete legal limbo.
This is morally unacceptable. In order to avoid such a dramatic situation, the negotiation on citizens’ rights needs to be ringfenced from all other Brexit issues. A separate citizens’ rights agreement must be established under Article 50. It’s legally possible if the political will is there.
A separate deal
The EU has proposed a “phased approach” to the negotiations. The “withdrawal negotiation” will focus on how to disentangle the UK from the EU, and includes issues such as the rights of the 4.5m, the outstanding payments, and the transfer of European agencies currently based in the UK. This withdrawal agreement has to be signed within the two-year period provided by Article 50. Then come talks on what the future relationship between the UK and EU will look like, including the trade deal, which will take many more years.
The European Council decides when there is “sufficient progress” on the negotiation of withdrawal that justifies starting discussions on the future relationship.
To avoid citizens becoming a bargaining chip, the European Council should require that the two sides sign a citizens’ rights agreement (and that it be ratified in the UK parliament) before starting any discussion on the future relationship.
With such a mechanism the negotiation of citizens’ rights might still be influenced by parallel discussions on the other withdrawal topics, such as the financial settlement, but not by the economic arguments of the future trade relationship. Moreover, it creates pressure to conclude an agreement on this issue quickly, and allows adopting a legally binding solution prior to Brexit day.
There are no legal excuses for not allowing such ring-fencing. Although Article 50 refers to “an agreement” in the singular to realise the withdrawal, it doesn’t mean that several agreements can’t be signed. Interpreting the singular in the plural and vice versa is a common legal interpretation technique. Allowing a separate agreement on citizens’ rights would also fit with an interpretation of Article 50 that takes into account the wider objectives of the EU, such as protecting its citizens.
At the same time, adding in a separate deal on citizens’ rights doesn’t create a legal precedent to give up on the principle that “nothing is agreed until all is agreed” for all other negotiation issues.
A safe-guarding clause
A separate agreement on citizens’ rights also needs one last, vital element – a “safe-guarding clause”. This would state that the agreement on citizens’ rights will come into force on Brexit day, even if the negotiations on other withdrawal issues fail.
In case of such failure, the citizens’ rights agreement will by then have been ratified in the UK parliament (thanks to the ring-fencing mechanism), and enter into force on Brexit day as the only Article 50 withdrawal agreement. If the negotiations on the other withdrawal issues are successful, these issues will be adopted in a separate agreement to the one on citizens’ rights (and be ratified by the UK parliament at a different time).
There is no doubt about the moral imperative for safeguarding the rights of the 4.5m citizens most directly affected by Brexit and ensuring they do not become a bargaining chip. But it’s also clear that there is no legal excuse for not living up to this duty either.