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Analysis

Why didn’t we guarantee EU citizens’ rights 18 months ago?

by Nick Kent | 08.12.2017

Four wins for the EU, none for the UK and a draw. That’s the score at the end of six months of negotiations on citizens’ rights.  Many will wonder why this compromise could not have been reached a year ago.

The agreement on citizens’ rights is a complex package that is not yet fully finalised – and, if our overall negotiations fall apart, so could the deal on citizens. But it is very likely that what was announced today will form the core of the final text. A series of arguments between the UK and the EU has been settled, with the EU predictably winning most of them.

The first wrangle was over the date to be used as the starting point for measuring the rights of EU citizens in the UK and UK citizens in the EU. The UK wanted to be able to specify this date later and not necessarily use the day we leave. The EU preferred the exit day. It won the argument and the “specified date” will be the day the UK leaves.

The UK government made any jurisdiction for the European Court of Justice (ECJ) after Brexit one of its “red lines”. The EU was equally determined that it would remain the final court for cases concerning the rights of EU citizens after Brexit. The EU got agreement from the British to a text that says the ECJ is the “ultimate arbiter of the interpretation of Union law” and that the UK courts should have “due regard” to relevant decisions of the Court after Brexit.  This was a big win for Michel Barnier and the Commission negotiators, although they have agreed that the Court’s interpretation must be based on case law as it was on exit day. In addition, the agreement enables UK courts and tribunals to refer cases to the ECJ for a ruling for eight years after Brexit.

An issue of personal importance for the prime minister, as she devoted considerable attention to the issue as home secretary, was the question of EU citizens in the UK bringing in third country family members. The UK has recently tightened its national law in respect of family members and it wanted these rules to apply to EU citizens in future. In what amounts to a draw between the parties, EU citizens in the UK will be able to bring in third country close family members for their lifetime but new relationships will be subject to national law unless the new partner resided in the UK on the specified date.

Two smaller issues were clear wins for the EU. The first was the requirement for there to be “transparent, smooth and streamlined” arrangements for EU citizens to confirm their rights after Brexit. Secondly, the Home Office will lose its exclusive role overseeing the rights of EU citizens with the creation of a new independent national body to monitor the implementation and application of citizens’ rights. The nature of the agreement on these issues does not reflect well on the Home Office’s handling of EU citizens’ rights in recent years.

While the agreement covers citizens’ rights in 36, often lengthy, paragraphs there is nothing in this text that could not have been agreed a year ago. EU citizens in the UK and UK citizens living in the rest of the bloc have been put through 18 months of uncertainty and stress for no discernible benefit. But more importantly from the perspective of the negotiations as a whole, a great deal of goodwill has been lost because of the delay. That will not help as the talks move to their second phase, when the UK is asking for more than the EU has ever conceded to a third country in a trade agreement. It shouldn’t have been like this.

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Edited by Hugo Dixon

3 Responses to “Why didn’t we guarantee EU citizens’ rights 18 months ago?”

  • Sure, the EU side made a great deal of its supposed intention to be generous to citizens. But that’s far from the reality. Brits in one EU country will apparently not enjoy freedom of movement throughout the EU. So, where’s that fabled EU good will? Nowhere to be seen very clearly.

  • sour grapes, Margot ?
    not going to whine about the generous negotiation Cameron refused by the EU ?

    well, here is your check on reality : Brits living in Europe WITH A PASSPORT from one of its member states will still be able to enjoy freedom of movement (FoM).
    because they’ll be considered EU nationals.

    Brits WITHOUT A MEMBER-STATE’S PASSPORT will be considered third country nationals and will have to apply for a tourist visa first

    pretty much how it’s already the case in Britain and in the EU for non-EEA and non-EU countries … isn’t that what Leavers wanted ?

  • I realize you are partisan shills, but your comments here are misleading. For instance, the application requirement is a clear win for UK; EU argued no such application should be necessary. Moreover, UK made some clear wins on systematic background checks, ability to kick out criminals post-Brexit using national laws and a longer right to be absent without loosing rights. That’s right, the EU argued this should only be two years as required by EU law, the end result is five years. UK win. The family reunification regime is also much more restrictive than EU wanted, after all most spouses already live together.

    You portraying this so one-sided ensures that I will not take you seriously going forward. And I say that as someone who opposes Brexit.