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8 December 2017

The UK-EU agreement interpreted for Remainers

Does the first phase Brexit deal leave room for a Remainer reverse ferret? 

By Julia Rampen

On Friday morning, the UK woke up to news that could be good or bad, depending on how full your mug of tea is. After a week where politics ricocheted from Brussels to London to Belfast, Edinburgh, Dublin and Cardiff, it was back to Brussels and Theresa May emerging with a deal.

The agreement between the UK and the European Commission is not a final deal – it’s like a set of ground reals before negotiators move onto the nitty gritty of Brexit. 

If you went to bed under your blue-and-yellow-stars duvet convinced that sooner or later, the British public would realise Brexit was all a horrible mistake, then this may not be good news for you. If, on the other hand, you accept that people who say they want Brexit aren’t just struggling to express their desire for avocado toast, you might find the deal something of a relief.

Most importantly, if you’re part of the subset of soft Brexiteers that includes Remainers who want to create a backdoor to the EU, the wording of the document matters. Here’s what you need to know:

INTRODUCTION

“The positions detailed in this report form a single and coherent package. Agreement in principle has been reached on the package as a whole, as opposed to individual elements.”

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The introduction of the UK-EU deal makes it clear that what has been agreed so far isn’t up for negotiation anymore – and that Leavers or Remainers can’t pick or choose parts of the agreement. It’s all or nothing, baby. 

CITIZENS RIGHTS

“The overall objective of the Withdrawal Agreement with respect to citizens’ rights is to provide reciprocal protection for Union and UK citizens, to enable the effective exercise of rights derived from Union law and based on past life choices, where those citizens have exercised free movement rights by the specified date.”

The report makes it very clear that there’s a “Before” and “After” when it comes to EU citizens living in the UK, with the date being that of the UK’s withdrawal from the EU.  

The question for Remainers, EU citizens, and Leavers who voted to deliberately force a more liberal immigration policy overall (they do exist) is: what happens after that date? Will the government be able to roll out the hardline immigration rules it currently applies to non-EU citizens?

“Irrespective of their nationality, the following categories of family members who were not residing in the host State on the specified date will be entitled to join a Union citizen or UK national right holder after the specified date for the life time of the right holder, on the same conditions as under current Union law.”

Here’s the first crucial difference. Currently, British citizens married to non-EU citizens don’t enjoy the right to family unification – they have to prove they earn £18,600 a year. The agreement doesn’t extent to EU citizens who arrive after the cut-off date, but it still means post-Brexit immigration law will have to include an exception for EU citizens. 

“Administrative procedures for applications for status will be transparent, smooth and streamlined… The host State will work with the applicants to help them prove their eligibility under the Withdrawal Agreement and to avoid any errors or omissions that may impact on the application decision.”

In other words, the Home Office will have to rethink the entire way it treats immigrants…

“Where an application is required to obtain status, adequate time of at least two years will be allowed to persons within the scope of the Withdrawal Agreement to submit their applications. During this time period, they will enjoy the rights conferred by the Withdrawal Agreement.”

This is interesting, because it paves the way for “at least two years” before the immigration question has to be decided (and potentially some time after that). Which gives businesses at least two years to lobby the government about a looser immigration regime. 

“Persons who acquired the permanent residence rights in the host State under the Withdrawal Agreement can be absent from its territory for a period not exceeding five consecutive years without losing their residence right under the Withdrawal Agreement.”

This is not so good for opponents of draconian Home Office policies. The five year rule sounds extremely similar to the one applied to non-EU citizens, which led to the deportation of Irene Clennell, a Singaporean citizen with a British family, and it makes the rights conferred on EU citizens in the deal look more like a one off than the future of UK-EU immigration rules. 

“Decisions on recognition of qualifications granted to persons covered by the scope of the Withdrawal Agreement before the specified date in the host State… will be grandfathered. Recognition procedures under these Directives that are ongoing on the specified date, in respect of the persons covered, will be completed under Union law and will be grandfathered.”

“Grandfathered” means applying an old rule to existing situations while a new one is applied for future cases – in this case about EU professional qualifications being recognised in the UK. For Remainers looking for crumbs, the word “ongoing” stands out here.  But does it mean if you’re an EU doctor and you (still) want to come to the UK at the time of Brexit, you’ll be hired as usual – or could it also apply to British citizens who are studying medicine for several years abroad and will be understandably furious if their qualification is useless on their return?

“This Part of the Agreement establishes rights for citizens following on from those established in Union law during the UK’s membership of the European Union; the CJEU is the ultimate arbiter of the interpretation of Union law…  UK courts shall therefore have due regard to relevant decisions of the CJEU after the specified date.”

It’s the Court of Justice of the European Union! Which means… it’s the European Court of Justice! (The CJEU is the name for all the EU courts). The agreement is basically saying EU citizens’ rights will continue to follow interpretations set by the ECJ. UK courts will be expected to refer to EU courts on questions involving EU citizens’ rights. Optimistic Remainers may note that accepting some jurisdiction of EU courts sets a precedent that could potentially apply to other areas, like common standards (which paves the way back to the single market… etc, etc). Pessimistic Remainers will note though the small print: this mechanism only lasts for eight years.

NORTHERN IRELAND

“The commitments and principles outlined in this joint report will not pre-determine the outcome of wider discussions on the future relationship between the European Union and the United Kingdom and are, as necessary, specific to the unique circumstances on the island of Ireland. They are made and must be upheld in all circumstances, irrespective of the nature of any future agreement between the European Union and United Kingdom.”

In theory, this deal implies that Northern Ireland can be a “special deal” i.e. it gets soft Brexit while all other parts of the UK will have a hard Brexit. However, in practice, after the fuss unionist devolved parties kicked up this week, the price for a hard Brexit could be the break up of the UK (Engexit?). 

“North-South cooperation relies to a significant extent on a common European Union legal and policy framework.”

This just confirms what everyone except diehard Leavers already think – that Northern Ireland’s going to need a soft Brexit. 

“The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border… In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all island economy and the protection of the 1998 Agreement.”

THIS IS THE BIT, REMAINERS! THERE IT IS! FULL ALIGNMENT! Unless the government manages to come up with something better, it looks like Scottish Tory leader Ruth Davidson’s demand for regulatory alignment across the whole of the UK (as set out here by her constitutional spokesman, Adam Tomkins) is likely to happen. In other words, the UK is likely to stay in the single market and customs union… It just won’t have a say in how they work anymore. 

“The United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom”

See previous comment. 

“Both Parties acknowledge that the 1998 Agreement recognises the birth right of all the people of Northern Ireland to choose to be Irish or British or both and be accepted as such. The people of Northern Ireland who are Irish citizens will continue to enjoy rights as EU citizens.”

This is only really good cheer to Remainers born in Northern Ireland, but it also might appeal to heavily pregnant Remainer Brits who feel like giving birth in NI to secure an EU passport for their offspring.

“The United Kingdom and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories (Common Travel Area…  in particular with respect to free movement for EU citizens.”

This sounds like Ireland could set a precedent for free movement, but keep that English champagne corked – Ireland already has different non-EU immigration policies from Northern Ireland. If you’re wondering how this hasn’t already sparked “Migrants sneak across borders” headlines from the Daily Mail, then join the club. One of the mysteries of the Emerald Isle. 

FINANCIAL SETTLEMENT

“The UK will contribute to, and participate in, the implementation of the Union annual budgets for the years 2019 and 2020 as if it had remained in the Union.”

This isn’t really exciting for anyone, but it does basically send the “No deal is better than a good deal” bus off a cliff. 

“The UK considers that there could be mutual benefit from a continuing arrangement between the UK and the EIB… After the date of withdrawal, UK projects will not be eligible for new operations from the EIB reserved for Member States, including those under Union mandates.”

Basically the UK wants to keep the flame alive with the European Investment Bank, which makes sense, because it was the fifth largest recipient of EIB loans in 2016. And the EIB is like: swipe left. So the result of Brexit could be like being in the EU, but slightly worse. This is only really good news for Remainers who enjoy saying “I told you so.”

“On Euratom-related (nuclear specific) issues both Parties have agreed… that the UK will be responsible for international nuclear safeguards in the UK and is committed to a future regime that provides coverage and effectiveness equivalent to existing Euratom arrangements.”

The European Atomic Energy Community is a means of developing, distributing and selling nuclear energy. The Nuclear Industry Association, a trade body, warns if the UK leaves without safeguards, it could be “in breach of its obligations under international nuclear law”. So somehow the UK needs to find the money to create its own. And nuclear-on-the-cheap isn’t likely to be anyone’s election slogan. 

This is also only really good news for Remainers who enjoy saying “I told you so.”

“This report is… agreed by the UK on the condition of an overall agreement under Article 50 on the UK’s withdrawal, taking into account the framework for the future relationship, including an agreement as early as possible in 2018 on transitional arrangement.”

Good news for anyone who argued for transitional arrangements (remember when that wasn’t a thing?). Bad news for anyone who still secretly hoped the government would just pop round to take that note delivered to Donald Tusk back.