Chapter 10: The case for a unilateral guarantee or early negotiation
The views of our witnesses
Unilateral guarantee
139.Lord Howard recommended that the Government should “make it clear now—they should already have made it clear—that those EU citizens who are currently living in this country will be allowed to stay here, to carry on working here, and to carry on studying here.” He did not think it was necessary to “wait for any question of reciprocity”. In any event, he thought it “inconceivable that either the French Government or the Spanish Government would suddenly start rounding up hundreds of thousands of Brits and deporting them”, even if it were legally possible to do so. The same was not true of other rights, such as access to benefits, where he believed there was “a stronger case for saying that they should be the subject of reciprocity”.166
140.Lord Howard’s evidence to us reflected views he had expressed in a debate on the outcome of the European Union Referendum on 6 July:
“As so many of your Lordships have said during this debate, let us not begin to entertain any suggestion that immigrants who are here legally, including those from the European Union, should be used as bargaining chips. That is a matter of common, simple decency.”
“I am sure my noble friend understands that, by talking about this guarantee in the future, she has done little to allay the real anxieties which hang over the heads of millions of people from the European Union who are lawfully in this country now. This is a guarantee that could—and should—be given now and it does not take the matter further to suggest that it can be given at some time in the future.”167
141.Mr Speaight agreed that the Government “should unilaterally announce, not as a bargaining matter, that it will convert all five-year permanent residence rights under the EU arrangements into our concept of indefinite leave to remain”.168 All other EU rights, he believed, should be the subject of negotiations.
142.In its written evidence, submitted after Mr Rzegocki had given evidence to us, the Polish Embassy stated: “We expect Her Majesty’s Government to extend to the Polish community statements of reassurance and clarification of all doubts about their status after the UK will have left the EU.169
Early agreement
143.Mme Bermann did not foresee citizenship rights being agreed before the opening of the withdrawal negotiations: “the French Government’s position is very clear: we do not want to enter into any pre-negotiations before the triggering of Article 50”.170 She also doubted that any aspect of the withdrawal negotiations could be agreed until all of the negotiation was agreed:
“My experience is that nothing is agreed until everything is agreed, so probably it will not be solved in the beginning. There may be some political reassurances, but I think that everything will be decided at the end. That is my feeling. I do not yet know how they will negotiate but that is how it works usually.”171
144.On several occasions she said that France was waiting for the UK’s proposals, including on acquired rights, before it could react:
“I am sorry to repeat that all the time, but it is for the UK Government not only to trigger Article 50 but to make proposals to which we will react. For the time being, the concern of France and the 26 is to strengthen the EU. We are not going to make any proposal regarding Brexit and it is not necessary. We will wait for the British proposals.”172
The Government’s view
145.The Government has been put under pressure in both Houses of Parliament to give a unilateral undertaking to preserve the EU citizenship rights of EU nationals in the UK after Brexit. The Government’s views were set out in reply to an Opposition Day debate in the Commons on the rights of EU Nationals on 19 October. Robert Goodwill MP, the Minister of State for Immigration at the Home Office, said:
“The Government have been clear that they want to protect the status of EU nationals resident in the UK. As the Prime Minister has made clear, the only circumstances in which that would not be possible were if British citizens’ rights in other EU Member States are not protected in return. The Government have provided repeat assurances on this point, and their position has not changed … The Government are therefore unable to set out a definitive position now: that must be done following an agreement with the EU.”173
146.On the timing of the negotiation the Minister said:
“I want to be able to conclude this matter as quickly as possible once negotiations begin, but there is a balance to be struck between transparency and good negotiating practice. Any attempt to pre-empt our future negotiations would risk undermining our ability to secure protection for the rights of British citizens living in the EU, and that is why we are unable to support the motion.”174
Conclusions
147.We urge the Government to change its stance and to give a unilateral guarantee now that it will safeguard the EU citizenship rights of all EU nationals in the UK when the UK withdraws from the EU. The overwhelming weight of the evidence we received points to this as morally the right thing to do. It would also have the advantage of striking a positive note for the start of the negotiations, which will be much needed.
148.Even if the Government refuses to give a unilateral undertaking ahead of the negotiations, there is a strong case to be made for agreeing EU citizenship rights as a preliminary and separate element of the negotiations as soon as Article 50 is triggered. EU nationals in the UK and UK nationals in other EU Member States should not have to wait until the end of the negotiations to find out whether they have a future in the EU States where they have decided to live.