Europe is right to reject Theresa May’s “citizens of nowhere” offer to EU nationals

The deal offers virtually nothing foriegn nationals aren't already entitled to. 

NS

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It was over a year in the making, but Theresa May’s offer to the EU on how European citizens in the UK would be treated after Brexit was finally unveiled last month. Initially billed as being “generous” it was a bad sign that this was downgraded to “serious and fair” on the day of the announcement.

It turns out the proposal merely amounts to treating EU citizens already living in the UK exactly the same as other foreign nationals in the UK. They would all have to apply for domestic UK immigration status and all prior EU rights of residence would be lost, including the right to be accompanied by family members. This falls considerably short of the EU’s earlier proposal, which would guarantee all existing rights for EU citizens in the UK and UK citizens in the EU.

EU politicians are unimpressed. Guy Verhofstadt, the lead Brexit negotiator for the European Parliament, has threatened to veto the deal unless the UK offer is improved. Is the UK really willing to opt for a “no deal” Brexit on the basis that offering to guarantee existing rights to EU and UK citizens is such a “bad deal”? We may find out soon, as the EU insists that progress must be made on citizenship rights before negotiations start on other issues.

It is hard to see what possible benefit has been achieved by waiting a year to unveil this minimalist offer. It was always inconceivable that EU nationals might actually be expelled from the UK, all three million of them, so they were always as a minimum going to be offered some sort of domestic UK immigration status. 

In the meantime, EU nationals have been left wondering whether they might be allowed to remain, many have made what may be pointless applications for permanent residence documents and any good will that might originally have been generated with a minimum guarantee like this has been totally lost.

As with much of what we learn about Brexit, it is as if the UK Government is deliberately sabotaging its own negotiating position.

The UK’s proposal refers to a special new “settled status” being created for EU residents but then goes on to reveal that this is actually just indefinite leave to remain, exactly the same “settled status” that any other foreign national can acquire after living in the UK lawfully for five years. The “retained rights” that Theresa May touts are exactly the same already conferred on foreign nationals with indefinite leave to remain: access to the NHS and the right to claim welfare benefits.

The proposal also makes clear that EU citizens will actively have to apply for this status within a “grace” period. It is not made explicit but it is clear from the language and the legal framework that failure to make such an application will cause the person concerned to reside illegally and commit a criminal offence.

EU citizens will also lose their right to bring family members to the UK under EU law and their right to vote in local elections. They will be required to have new immigration status documents. Those who have navigated the labyrinth of the permanent residence application process will not have their status automatically converted but will have to apply again. The right to vote in local elections would be lost.

The right to live in the UK will be lost by EU citizens after two years of absence, no matter how long the individual lived in the UK previously. This is how settled status works for other foreign nationals, as Irene Clennell found to her cost. The same rule also applies to EU law permanent residence, but within the EU this was never a problem because an EU national who lost their permanent status could easily re-enter under EU law and build it up again if they wished. The existing right of simple re-entry under EU law will be lost.

Theresa May’s offer does not extend to EU nationals who arrived after an as yet unannounced cut off date, which could be any time after 29 March 2017, when the formal process of departure was initiated. This means that EU nationals who have recently arrived in the UK may well be forced to leave in the future. Given that the UK is already haemorrhaging EU nationals vital to the NHS and other services and industries, the real problem is persuading people to stay, not making sure they cannot.

The supposed justification for not offering a minimum guarantee was to ensure reciprocation for UK citizens in the EU. Why, then, is the belated UK proposal completely silent on what reciprocal deal the UK wants?

The logic of the UK position is that UK citizens in France would have to apply for local French immigration status, UK citizens in Spain would have to apply for local Spanish immigration status, and so on. The UK is not proposing any enforcement mechanism, so if any of the remaining 27 EU member states reneged on the agreed rights, UK citizens in those countries would be on their own.

The UK language of “generosity” and “grace” suggests being permitted to stay is a conditional privilege, not a right. It implies that EU citizens in the UK might conceivably be expelled. The language also underlines the extent of the deception perpetrated during the referendum campaign, when everyone was assured that EU citizens in the UK and UK citizens in the EU would benefit from mysterious “acquired rights” under unspecified international law. It was always legal nonsense and we can now see that all too clearly.

Guy Verhofstadt is wrong to describe the proposals as “second class citizenship” – it's much worse than that. Under the UK proposals, EU citizens will lose the key essential rights of anything resembling citizenship: the right to vote in local elections and the right of return. EU citizens in the UK and UK citizens in the EU would become citizens of nowhere.

Colin Yeo is a barrister specialising in immigration law and blogs at Free Movement.