Henry Newman is Director of Open Europe.
On the one hand, the imbroglio over the status of EU nationals in the UK is a Government own goal: the lives of three million people have been thrown into unnecessary confusion. But on the other, the refusal of such countries as Germany to countenance an agreement on guaranteeing citizens’ rights before negotiations had formally begun, and their insistence that the issue should not be resolved separately, is a striking moral failure. Many of Brussels’ demands on EU nationals, including for continued oversight by the European Court, are quite simply preposterous – and indeed a reminder of why many in the UK voted to leave in the first place.
Immediately after the referendum, there was pressure on the Government to provide assurances to EU nationals in the UK. That had been the clear position of the victorious Vote Leave. The requests were refused. George Osborne has since sought to shift the blame to Theresa May, for withholding consent, but David Cameron could have insisted and issued a statement.
At one level, the UK Government’s argument that reassurances should be reciprocal is legitimate. It is crucial that the status of UK nationals in the EU is protected, and the EU’s refusal to do so rather makes the Government’s point. It has also been reported that senior officials, including Sir Ivan Rogers, then our Ambassador to the EU, advised the Government not to concede the point without reciprocity. However, the decision not to issue guarantees only exacerbated an already tense situation.
The problem was tone, as much as the substance. During the Conservative leadership contest, May was asked if there could “be a situation where people currently living in Britain from Europe…no longer have the right to live in Britain?” Rather than offering warm words about the important contribution made by EU migrants and her desire for all of them to stay, albeit with the proviso that Brussels concede equivalent protections, her answer appeared harsh. It also seemed directly to suggest that EU nationals would be used for leverage.
She said: “of course as part of the negotiation we will have to be negotiating on the arrangements that will apply to EU citizens in the UK and to UK citizens living in the EU….It will be part of the negotiation. It’s just part of the legal arrangements that have to take place”. Her belated point that “it’s not about whether people are welcome here” failed to soothe concerns.
In the aftermath of the referendum nerves, were on edge. European embassies reported back on hate crime incidents and anti-immigrant protests. One EU national friend working for a respected company was hauled in by HR and told to make his own arrangements to stay in the UK. At the Conservative Party Conference things got worse. Theresa May was seen to declare war on a liberal, metropolitan elite. And a policy proposal, inserted into a press notice for, but not the text of, Amber Rudd’s speech caused consternation. The idea of asking companies to list their foreign workers was soon dropped, but the damage was done. In that febrile atmosphere, conspiracy was imagined everywhere. Italian newspapers reported that a London school was surveying pupils to find out if they were Italian or Sicilian, as if the Department for Education had set out to undermine Italian unification.
I disagreed with May’s decision not to issue a unilateral guarantee – not least as she has essentially offered just that 12 months later. But I was equally outraged by the EU’s obduracy. Why did the Council not sign off an in principle agreement on the status of nationals over the summer of 2016? That would have given much needed assurance to individuals and to business. Instead, the issue escalated. Now Brussels is over-reaching.
The offer published by the UK Government yesterday, is fair and reasonable. The EU’s insistence that the UK after Brexit, submits to the continued jurisdiction of the European Court of Justice, while a non-member, is patently not. What country would agree to accept the permanent jurisdiction of a foreign court, particularly one that has demonstrated a marked political bent, over matters relating to key elements of its domestic policy – immigration, welfare, access to services?
The UK enjoys what is probably the best judiciary in the world. Our Supreme Court has amply demonstrated its ability to protect individual and collective rights, and to find against the Executive. Ironically, the Article 50 case which caused the Government such bother, ought to demonstrate both that our courts are truly independent, and also that our Government has to abide by the court’s decisions. The EU should therefore have no doubt that the future rights of EU nationals can be protected by our courts.
The exact rights of EU nationals in the UK, and UK nationals in the EU, will need to be codified. For its part, the EU will want the European Court to consider claims by UK nationals living in the EU. That’s reasonable for claims made within the Union. There may also need to be some specific mechanism for resolving broader disputes between the UK and EU – and that’s an issue to which I will return.
But there is a further pernicious element to the EU’s demands: super-privileges for EU nationals. This is the idea that they should enjoy additional lifelong rights, such as to bring family members to the UK. Again this is an impossible request. It would entail giving EU nationals who are not UK citizens greater rights than such UK citizens.
The Government has already sought to simplify the process for naturalisation for EU nationals, and has offered a relaxation of the rules, including a grace period around residency rules. There may need to be some further adjustments to these proposals, but the Government must also be firm. There must be a clear point in the near future beyond which distinctions between EU nationals and other non-nationals end.
It’s good that the UK government is belatedly shifting it tone, and pursuing the sort of Open Brexit that ought to enjoy widespread backing. It’s time for the European Union to reconsider its demands and to recognise, as some have already acknowledged on the continent, that Brexit does actually mean that the UK will be leaving the EU, and that will include the jurisdiction of its court. In particular, they should pay attention to comments by a former European Court judge, Renaud Dehousse, who warned the EU to be “extremely careful” in its negotiation requests. “Article 50 was invented” he said “to show that the EU was not a prison. We must apply it accordingly.”