No, the Irish border is not the “last” part of Brexit to be sorted

EU citizens are still in limbo. 

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The Brexit negotiations: what a mess, eh? At least we’ve narrowed it down to one problem: the Irish border. Once that’s done, we can move to trade talks and make Britain great again!

You would be forgiven for assuming the two other questions the EU wanted solved before moving to trade in the Brexit negotiations – money and citizens’ rights – are a done deal and will not be discussed again. After all, the Irish question is now occupying all Brexit coverage and presented by the British government as the “last” (although extremely tricky and complex) step before moving on to phase two.

But you’d be wrong: the €50bn figure for the bill has yet to be voted on, and there has been no breakthrough regarding citizens’ rights. The government’s “settled status” proposal has not met several of the EU demands and EU citizens in the UK consider it too little, too late. But on 25 October, the government announced that a deal on citizens’ rights was within “touching distance”. So everyone assumed it was true, and just stopped talking about it.

But “touching distance” doesn’t actually mean “done deal” and what the British government was trying to say was more “still quite far away”. A House of Commons report on the progress of the UK's negotiations on EU withdrawal has warned that a deal on EU citizens rights has yet to be reached and that “any agreement reached on their rights should be ring-fenced and preserved in the event of failing to reach an overall agreement”.

So it’s not like the government isn’t aware of the problem, right? It’s not like citizens’ rights groups haven't flagged several times the many questions left unanswered or haven't even advised on a better legal proposition

Although campaigning groups like the3million (representing the rights of EU citizens in the UK) and British in Europe (representing Brits in the EU) acknowledge that some progress has been made, they worry about that the 4.5 million people they represent will “not be to carry on with their lives as normal if the European Commission decides that ‘sufficient progress’ has been made on citizens’ rights”. The European Council gets to determine whether “sufficient progress” has been made to move to the next phase of Brexit talks on 14 and 15 December 2017.

For Maike Bohn from the3million, “sufficient progress” would mean for the UK government reconsidering its “settled status” proposal, which the3million says the government currently presents as a “fait accompli”. Instead, Bohn argues, the government should engage with the group on an alternative. “As long as we see a serious risk of administrative errors [in registering EU nationals in the UK] and hostile environment, we don’t think there’s been sufficient progress made in talks,” she told the New Statesman. “There are too many unknowns in the UK’s technical note. Sufficient progress can’t be agreed if still there is a possibility of people being deported or families being torn apart.” If the UK doesn’t move closer to the3million’s suggestion, her organisation believes registering three million people over two years could be “a catastrophe” in administrative terms alone. “We’re worried there could be an agreement, that they could decide to pass through our criticism,” said the3million’s Nicholas Hutton.

The EU will have the final vote on whatever deal is reached – and that gives campaigners a tiny hope. “The European parliament is definitely listening to us,” Hutton said. They are indeed: the European Parliament's representative in the Brexit process Guy Verhofstadt has warned that the European Parliament “expects more on citizens’ rights”. After progress was announced today on the Irish border question, he tweeted: “EU citizens in the UK should not have to go through an unclear, costly and burdensome procedure. Their rights must be guaranteed. They came to the UK in good faith and must be treated with the respect they deserve.”

With Theresa May conceding on the question of the Irish border, it is now possible that the EU agrees to move past the first phase of Brexit talks. Citizens rights’ campaigners worry that they may be forgotten in the enormous amount of trade negotiations to come.

Even “sufficient progress” before the fast-approaching December deadline would not guarantee a final deal to be reached in time for March 2019. In case of the deal collapsing for an external reason – trade talks, the Irish border, May’s government disintegrating if the Democratic Unionist Party walks – or of no deal at all, citizens’ rights after Brexit may be compromised. Campaigning groups call for these rights to be “agreed and ring-fenced so that they are protected in the event of a no deal scenario”.

Once Theresa May has solved the Brexit contradiction of working with the DUP while trying to negotiate a border in the Irish sea, she may want to remember she still needs to cover the “touching distance” on citizens’ rights. Which she could have guaranteed, to save herself some trouble, more than 16 months ago.

Pauline Bock is a New Statesman contributing writer based in Brussels. She writes about Brexit, the EU, France and the Macron presidency. 

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