The progress of the UK’s negotiations on EU withdrawal: the rights of UK and EU citizens Contents

3Ring fencing citizens’ rights in the event of no deal

The UK in the EU

107.The negotiators for the UK and the EU have said that citizens’ rights are a priority. However, it is not clear what would happen to citizens’ rights in the event of no deal. Kalba Meadows said the uncertainty was continuing to create “stress and uncertainty” such that “many people stick their heads in the sand because they do not know how else to act.”174 Jane Golding told us that the EU-27 authorities “are in preparedness mode, but there is nothing clear yet that they can implement” and that while the draft WA was not finalised, “there is no certainty for the two groups because there is no legally binding agreement.”175

108.The British in Europe were told by the German Government’s Brexit lead negotiator that Germany feels a “responsibility for British citizens in Germany as much as [they] do for German citizens in the UK”.176 Fiona Godfrey said that during their meetings in Brussels, the question of No Deal was raised “by all the people we met in the various institutions” and that since January, “there is a lot more concern in Brussels about the prospect of a no deal.”177

109.If there is no agreement on ongoing free movement after the transition period ends, then the rights of UK citizens currently resident in the EU may be determined by EU rules on third country nationals (rules that apply to nationals of non-EU member states). Jane Golding, British in Europe, said there are different pieces of legislation that apply to third country nationals:

The conditions are far more stringent and in no way compare with being an EU citizen, and there is no right of free movement. There is a limited form of mobility. Then there are very big holes in this third-country national regime as far as self-employed people are concerned. There are a number of pieces of legislation that cover employees, but far fewer for self-employed people who are providing cross-border services. There are very big holes there.178

The EU in the UK

110.The Statement of Intent explains that the Government is committed to incorporating the Withdrawal Agreement fully into UK law and making sure that citizens can rely directly on the citizens’ rights part of the agreement.179 However, Mr Hatton, of the 3million, described “No Deal” as “the worst-case scenario for EU citizens” and expressed his concern that there does not currently appear to be a form of ring-fencing for EU citizens’ rights if the UK leaves the EU without a Withdrawal Agreement. He said there was a risk that there would be “3 million illegal immigrants in the country as a result, because we will not have a status.”180 Ms Donskoy explained that people were “extremely worried for themselves. They are extremely worried for their families” because

if there is no deal all EU citizens will automatically fall back on to an immigration system that was never designed for them in the first place.181

111.The Home Secretary, Sajid Javid MP, has said that the agreement on citizens’ rights will be “honoured, even if the UK is unable to reach an acceptable deal with the EU 27” and that “EU citizens living lawfully in the UK will be able to stay. No matter what happens”. Importantly, he said

Our focus has been, understandably, that we will get a deal—I am confident about that—and we are working on that basis.182

The Immigration Minister, Caroline Nokes MP, told this Committee that:

We do not anticipate that there will be no deal, and in the event of no deal I personally hope that we will uphold everything that we have said and make sure that we deliver on our commitment to EU citizens. […] Once we have opened the scheme and someone has achieved settled status, it is the equivalent of indefinite leave to remain. We would not be able to take that away from them. If they have it they will be able to keep it.183

112.The Withdrawal Agreement is not finalised. While we welcome the positive statements from the Ministers that they would honour their commitments to the EU in the UK in the event of no deal, more could be done to provide reassurances as to how this would be put into legal effect. The Withdrawal Agreement contains protections for EU citizens in the UK and for UK citizens in the EU. However, in the event of No Deal, there would be uncertainty around establishing the right to reside and work and the right to return after a period of absence. There are also protections built into the Withdrawal Agreement which would be lost, such as the right to refer cases to the CJEU for eight years.

113.We welcome the Home Secretary’s clear commitment that EU citizens living lawfully in the UK will be able to stay in the event of No Deal, and call on Member States to make similar public commitments to assure all UK citizens living in their territory that their rights will also be safeguarded in such circumstances. We note that the European Parliament has pursued this issue and we trust that they will continue to do so.

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Published: 23 July 2018