The Government's negotiating objectives: the rights of UK and EU citizens Contents

3The Government’s position

Government’s response after the referendum result

35.On 12 July 2016, the Government released a statement reiterating that there had been no change to the rights and status of EU nationals in the UK, and of UK nationals in the EU, as a result of the referendum. It went on:

When we do leave the EU, we fully expect that the legal status of EU nationals living in the UK, and that of UK nationals in EU member states, will be properly protected.56

36.The Government stated that those EU nationals who have lived in the UK for less than 5 years would continue to have a right to reside in the UK, and that they “do not need to register for any documentation in order to enjoy their free movement rights and responsibilities.” EU nationals who had lived in the UK for longer than five years would be entitled to apply for permanent residence anyway. The guidance advised extended family members who were non-EU nationals to apply for a residence card if they wished to reside in the UK. The statement made the point that, as of the date of the referendum, there had been no change to the right of EU nationals to reside in the UK and that

EU nationals can only be removed from the UK if they are considered to pose a genuine, present and sufficiently serious threat to the public, if they are not lawfully resident or are abusing their free movement rights.57

37.In a parliamentary debate on the Rights of EU Nationals in October, Robin Walker, Minister in the Department for Exiting the EU, said that the only circumstances in which the Government would not be able to protect the status of EU nationals resident in the UK would be where UK citizens’ rights in other EU member states were not protected in return. He said this required an agreement with the other Member States and that it would be inappropriate and irresponsible to set out unilateral positions. He said that agreement with the EU would be required, and that:

Doing otherwise would risk adversely affecting our negotiating position, and hence the position of British citizens who have chosen to build a life, with their families, in other countries.58

38.The Prime Minister, Rt Hon Theresa May MP tried to secure an early agreement on reciprocal rights with other EU member states.59 In November 2016, the German Chancellor, Angela Merkel was reported to have declined such an agreement on the grounds that there could be no pre-negotiations before the UK tendered its formal notice to withdraw from the EU under Article 50.60

The Lancaster House speech

39.In her Lancaster House speech of 17 January, the Prime Minister said:

I have told other EU leaders that we could give people the certainty they want straight away, and reach such a deal now. Many of them favour such an agreement—1 or 2 others do not—but I want everyone to know that it remains an important priority for Britain—and for many other member states—to resolve this challenge as soon as possible. Because it is the right and fair thing to do.61

40.On 6 February 2017, during the passage of the European Union (Notification of Withdrawal) Bill in the House of Commons, the Home Secretary, Amber Rudd, wrote a letter to fellow Conservative MPs about EU nationals in the UK, in which she said that the delay was “less an issue of principle than one of timing”. She said that there will be an opportunity “to debate and vote on this issue in the future” and that:

The Great Repeal Bill will not change our immigration system. This will be done through a separate Immigration Bill and subsequent secondary legislation so nothing will change for any EU citizen, whether already resident in the UK or moving from the EU, without Parliament’s approval. I’ve always been clear that after we leave the European Union we will have an immigration system that supports our economy and protects our public services, and that should mean securing the rights of EU citizens already here, as well as establishing a new immigration system for new arrivals from the EU once we have left.62

41.The Government has made it clear it wants an early agreement to protect the rights of EU nationals in the UK and of UK nationals living in other member states. We commend their commitment to this outcome. This has not yet proved possible. This is regrettable and the impact it is having on several million EU citizens should be a matter of serious concern to all governments in the EU.

Unilateral decision and reciprocity

42.The 3million, a campaigning group for EU nationals in the UK, has called on the UK Government to unilaterally guarantee the rights of residence of all EU citizens living in the UK before Article 50 is triggered, and to include the guarantee in the Act of Parliament which will formally trigger Article 50.63 The 3million believe that, for the UK to hold out for a reciprocal agreement means that EU citizens’ rights are being used by the UK Government to negotiate the rights of UK citizens in other member states. They said they objected to this approach on moral, legal, economic and political grounds. Nicolas Hatton, of the 3million, said he did not see why the UK should wait for a reciprocal deal64:

If on the day after the referendum—24 June—we had had a declaration saying that all EU citizens who live here can stay, I don’t think we would be here discussing these issues. That would have a created a climate of certainty and people would not have felt distressed about their future in this country.65

43.The UK citizens from whom we took evidence, resident in France, Italy, Spain and Belgium, agreed that the UK should make a unilateral offer. Christopher Chantrey said it would be “a magnanimous gesture on the part of the Prime Minister”.66 Others said it would engender goodwill, improve the relationship at the start of the negotiations, and encourage the other countries to reciprocate.67 Sue Wilson, a British national currently residing in Spain, questioned why the UK Government could not say that it would continue to pay for pensions and healthcare for UK pensioners in the EU, both of which they already paid for and which did not need to be negotiated with the Spanish Government or with the EU. She saw it as a decision that the UK should make for its own citizens and not wait two years for.68 Remain in France Together, a group of 5,000 UK citizens in France, recommended that the government unilaterally guarantee the rights and the situation of EU citizens who have made their home in the UK before Article 50 is triggered. They argued that it was likely that other EU nation states would then offer a matching guarantee to UK citizens living within their borders.69

44.The Lords EU Select Committee report on Brexit: Acquired Rights, recommended that the Government should immediately give a unilateral guarantee for all EU nationals in the UK, and that “The overwhelming weight of the evidence we received points to this as morally the right thing to do.”70 The organisation British Future assembled a panel including representatives from a wide range of organisations, including the Joint Committee on the Welfare of Immigrants, Migration Watch, the TUC and the Institute of Directors, to look into the position of EU nationals in the UK. Their Report of the inquiry into securing the status of EEA+ nationals in the UK, supported a unilateral guarantee for those already living here, and importantly thought it would not put UK nationals in Europe at risk.71 During debates on the UK’s new relationship with the EU, and on the European Union (Notification of Withdrawal) Bill in the House of Commons, there has been support for a unilateral decision from Members from all parties.72

45.EU nationals in the UK and UK nationals in the EU are aware that their fate is subject to the negotiations. They do not want to be used as bargaining chips, and the uncertainty they are having to live with is not acceptable. Notwithstanding the assurance given by the Home Secretary, we recommend that the UK should now make a unilateral decision to safeguard the rights of EU nationals living in the UK.

Status of EU nationals and the negotiations

46.The negotiators for the UK and the EU have made differing statements on their priorities in the negotiations. The Prime Minister has said she wishes to address the matter of EU nationals as soon as possible. In December 2016, Michel Barnier said he anticipates that, assuming the UK triggers Article 50 in March 2017, there will be “less than 18 months to negotiate” with an agreement needing to be reached by October 2018.73

47.Sunder Katwala said that, if the barrier to agreement was a refusal to negotiate before the triggering of Article 50, then it should be possible to trigger Article 50 and settle the principle on day one. However, if the view was that “nothing is agreed until everything is agreed”, then the uncertainty might hang over people for two years, and “that would be a ghastly situation to be in.”74 David Goodhart, Head of the Demography, Immigration, and Integration Unit, Policy Exchange, was doubtful that an early declaration from the UK would create much goodwill if everybody in Europe is expecting it, and “it is almost too late now to make a gesture, assuming that it will be the first thing that will be dealt with.” But he also said:

If we have, as you suggest, one of these “we cannot agree on anything until we agree on everything” situations, meaning another two years of limbo, there is perhaps a case for Britain making a unilateral gesture.75

48.Nicolas Hatton was concerned that if there was no certainty once the negotiations begin, then the 3 million in the UK and the more than 1 million UK nationals resident in Europe would be in a difficult position:

We keep campaigning for rights to be granted now before negotiations start. Otherwise we are going into the mix and God knows what is going to happen to it. That is what we are uncertain about. We do not want to be bargaining chips in the renegotiations. We feel we have been taken hostage as a population. There is a very strong feeling in the communities that we are negotiating capital, the main card in the negotiation. This is a political issue about not granting our rights. We are all human beings and we have got to be treated as human beings. Negotiating people’s lives is not moral behaviour.76

49.There appear to be differences between the prime negotiators, the UK Government and the EU Commission as to the sequencing of negotiations. It would be unconscionable for EU citizens in the UK and UK citizens in the EU not to have clarity about their status for another two years.

Lobbying other European governments

50.Asked whether they were putting pressure on the Governments of the countries in which they were living, Christopher Chantrey said he had given evidence to the Assemblée Nationale in October 2016 and he planned to apply pressure again after the French Presidential elections.77 Similarly, Gareth Horsfall said the British in Italy were only just getting mobilised and that Italian politics had been absorbed by its own referendum.78 On 14 February 2017, the British in Italy group published a list of actions they would be taking to contact Italian politicians, including the Italian Minister for European Affairs, the Italian media and organisations such as the British Chamber of Commerce in Milan. Debbie Williams, who is part of the Brexpats Hear Our Voice group, said the organisation had lobbied the European and the Commission.79 Sue Wilson, from Bremain in Spain, said that her contact with national and local government in Spain had elicited a response of, “Nothing will change as long as you are in the EU. After that, nobody knows.” Her organisation had concentrated its efforts in the UK “because we are British citizens. [ … ] we still regard the British Government as our Government, and it was the British Government’s decision, so that is where we have been focusing our efforts.”80

51.We commend efforts by the UK nationals living in other EU countries to put pressure on the respective governments where they live to resolve questions around their status as soon as possible. We do not believe the electorates of Europe will thank politicians in any country if the situation is allowed to continue for another two years. It is imperative that all parties to the negotiations put the resolution of the rights of all EU citizens in the UK and UK citizens in the EU as their first priority.

58 HC Deb, 19 October 2016, col 869

63 3million (OBJ0148). Amendments were tabled that would have had this effect in both the House of Commons and House of Lords during the passage of the European Union (Notification of Withdrawal) Bill.

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69 OBJ0124

70 House of Lords EU Select Committee, 10th report of Session 2016–17, Brexit: acquired rights, HL Paper 82

72 HC Deb 17 January 2017 col 805 Dr Tania Mathias; HC Deb 31 January 2017 col 876 Michael Gove; HC Deb 31 January 2017 Col 878 Emma Reynolds; 31 January 2017 Col 865 Gisela Stuart; HC Deb 6 February 2017 Col 69 Joanna Cherry; HC Deb 6 February 2017 Col 99 Alistair Carmichael

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3 March 2017