One of the more pointless rows over Brexit is the idea that the UK and the EU can freeze the status of EU citizens living here and British citizens living in Europe.
Ever since Brexit there have been well-meaning demands that every European living here should be given a guarantee of a right to stay. In exchange, the EU is meant to make a reciprocal guarantee for the up to 2 million British expats living across the Channel and in Ireland.
It sounds reasonable and generous but is not based on reality. There are two principles involved. First, since the 1951 European Coal and Steel Community it has been illegal to discriminate in hiring workers in states bound by common treaty rules on grounds of “race, religion and nationality”. This does not apply to employees of the state or its agencies.
The second principle is that the Maastricht Treaty confers on every national citizen the right to the same treatment as he or she might expect at home when living or working in another EU country.
Britain is not the EU nation with the highest share of other EU citizens living and working in its midst either in absolute or percentage terms. Paradoxically Norway and Switzerland, both outside the EU, have a much higher level of other EU citizens living and working in them than the UK.
But for 15 years the Conservative Party, UKIP, the anti-EU press, and not a few Labour and the Lib-Dem MPs have kept insisting that Britain was being taken over by Europeans. Gordon Brown encouraged this with his notorious promise of “British jobs for British workers” at a time when his high employment but low pay economic model was sucking in workers to do all the jobs that native Brits wouldn’t touch with a barge-pole.
Britain outside the EU can indeed bring in work permits, residence permits, entry visas and all the paraphernalia of border controls dating from the 1950s and 1960s. It will be a bureaucratic nightmare for employers to navigate civil service work permit systems and very costly to administer. It is hard to make it work without an identity card system but the national identity card was abolished in 2010.
That is why calls for a City or London-only work permit – a kind of updated Passport for Pimlico – will be hard to bring in. Would EU passports be stamped with L on the front? Would the work permits be issued on the basis of earnings? Would those with a London visa be allowed to live out the Oyster Card zone?
The point is that the people living, working, studying, visiting, or just enjoying life in Britain are mobile. They come and go. They return home and come back here. They want to bring in parents or other family members.
To offer some kind of status to all EU citizens which turns free movement into static non-movement make little sense given the constant coming and going across borders that is the norm in modern Europe. Germany has eight borders with EU member states plus Switzerland and Lichtenstein. In addition to all the EU citizens in Germany – 400,000 Romanians for example – 380,000 European workers cross German borders every day to work.
Germany needs stable friendly neighbours, north and south, east and west. To start checking cars and trucks, or demand special visas to enter Germany would do economic and political damage. Berlin is unlikely to agree to a major upheaval of European treaties, norms and laws just to suit the Brexit political class in Britain.
In addition, British expats are also mobile. No one has accurate figures on the number of Brits in Spain. But about half are estimated to be temporary residents who own a home and may live much of the year there but do not declare themselves as permanent residents.
So unless European countries create a kind of special police force and special bureaucracy to register and determine the right of Brits who live in France, Spain or Portugal they cannot freeze today the status and rights of British citizens.
If the UK leaves the EU this becomes a bi-lateral problem between Britain and Spain, Britain and Portugal, Britain and France and so on. It is not for the EU to settle. But how long would a person’s rights to residence last? Their death? Would they have full rights to health and old age care? Can they pass on their right of residence to children or sell them via social media?
These are not trifling questions. What appears on the surface to be a friendly reciprocal gesture requires a major new bureaucracy, new laws and amendments to EU treaties which have to ratified by all member states.
As with almost every aspect of Brexit, the failure to think through the consequences of isolating Britain from Europe for the millions who have got used to free movement from both the UK and other European states is now causing intractable problems which well-meaning intentions cannot solve.
Denis MacShane is the former Minister of Europe and author of Brexit: How Britain Left Europe (IB Tauris)
Edited by Michael Prest