Christopher Howarth is a senior researcher working in the House of Commons. Prior to this he worked for Open Europe, as a Conservative Foreign Affairs Adviser and senior researcher to a Shadow Europe Minister.

Last week the Government’s Article 50 Bill, officially the European Union (Notification of Withdrawal) Bill, was overwhelmingly backed by MPs. This week it is still in the Commons, progressing through a maelstrom of amendments tabled by opponents of Brexit in a Committee of the whole House.

The Bill itself consists of two short clauses, one of which defines the title. To this,opponents of the Bill have tabled 146 pages of New Clauses and amendments. Most are designed to wreck the Bill, either overtly or by delay. Most would be damaging to the UK’s negotiating hand by revealing it or setting arbitrary red lines. Many are sloppily worded, impractical and unworkable. All are unnecessary.

While opposition MPs have largely focused on process issues, what votes to have when etc, one issue however is of great importance – the position of EU citizens currently living in the UK. This is a matter that needs to be and will be addressed. However, seeking to do so in this Bill would damage the Prime Minister’s ability to secure the rights of 1.2 million UK citizens living in the EU, avoid proper Parliamentary scrutiny and lead to a welter of unintended consequences on what is a highly complex issue.

What is the position of EU Citizens in the UK?

There are currently over three and a half million nationals of other EU states living in the UK. The majority of these citizens (according to the Migration Observatory), 64 per cent, already have the right to stay having been here for five years, eight per cent are children who have a right to stay here as they were born here or have a parent that already has a right to stay and a further 12 per cent will have been here for five years by 2018 and so will have the right to stay. In total, 84 per cent of EU citizens already here have the right to stay post-Brexit.

Those who are using this issue to continue a campaign against Brexit have needlessly caused disquiet to people that have lived here in some cases for decades.

What we are talking about is a smaller group – newly arrived nationals, those who have not but may arrive by 2018, those who are here but have no right to be here and those, such as criminals, who gained rights under EU law to avoid expulsion but are unlikely to be granted a blanket right.

The rights of this smaller group will need to be addressed, be they accepted or denied, and that is exactly what the Prime Minister has promised to do. The White Paper says: “We want to secure the status of EU citizens who are already living in the UK, and that of UK nationals in other Member States, as early as we can.”

What needs to be addressed?

Granting a new right to remain in the UK would require complex legislation, negotiation and scrutiny. This would need to cover some of the following issues:

  • What is the cut-off date for the acquisition of UK rights? The tabled amendments suggest a variety of dates – the UK’s withdrawal date, the date the Article 50 Act comes into force or 23 June 2016 but only for those resident for a year. This issue will need to be decided.
  • How do we identify who should be granted a UK right to remain? There are no clear records of who is in the country and when they came. There are National Insurance numbers, active or dormant, issued to those in the UK or who once were in the country. This will require an administrative effort if the EU citizens entitled to stay are to be proactively identified.
  • What about EU citizens who were here and have left? There will be a large pool of EU citizens who have been resident in the UK but might not be now, or may not be on the exact date specified. How this issue is dealt with will need careful consideration and may impact on a future migration policy the UK adopts.
  • What do we do with EU citizens with criminal records? One of the issues that led to disquiet with our EU membership was the European Court’s ability to interpret the EU treaties to block the UK’s ability to deport from or block criminals coming into the UK. It would be odd if the post-Brexit arrangements did not seek to address this issue, but the tabled amendments do not.
  • What do we want to grant? Citizenship, Leave to remain or something else? While some EU states have talked about granting UK citizens in their states passports and citizenship this is unlikely to be what the UK Government suggests and unlikely to be what many EU citizens desire. It is little remarked that many EU states often do not allow dual-nationality (Netherlands, Germany etc.) – a grant of UK citizenship would therefore trigger a citizens being stripped of their original nationality.
  • What access to social security and health do we want to grant? Non-EU migrants are often not entitled to benefits and tax credits on arrival in the UK. This issue would need to be addressed for EU citizens. Do we want to use the same rules or grant the EU citizens a separate right? 

UK Citizens in the EU

As well as addressing the complex issue of EU citizens in the UK the Government has a primary duty to the 1.2 million UK citizens, many of whom vote and more of whom will vote in the future, who live in other EU states. It would be an odd Government that would prioritise the rights of a foreign citizen who has not yet arrived in the UK over one who is a citizen.

What needs doing?

The Prime Minister has set out that a reciprocal deal will be sought and that many EU27 states have already voiced approval. There will be issues to agree, and legislation will be forthcoming either in the Great Repeal Bill or preferably earlier. This is what a responsible Government should do and is doing: negotiate, reassure and legislate.

Creating false fears for long-term UK residents, refusing to negotiate and secure the rights of UK citizens in the EU and seeking to pass half-baked legislation will not do opposition MPs any credit. This is a negotiation, we need to trust the Prime Minister to deliver what she and other EU states have said they want to achieve. Passing rash and ill-thought-out amendments will not help anyone.