The negotiations over the terms of Brexit, the UK’s exit from the EU, have reached the second round of the first phase – that is the stage of presentation and comparison of each side’s positions on the three issues that need to be addressed before talks on a future trade deal can begin.
Apart from the future border in Ireland, where the two sides broadly seem to be in agreement on what needs to be the final outcome, and the exceptionally thorny matter of the ‘divorce bill’, where reconciliation of estimates will be a huge task, there is also the significant subject of EU citizens’ rights in the UK and vice-versa.
The UK government has presented its proposal, which London describes as “serious and generous”. In general terms it seems to be offering Europeans already living in the UK, among which hundreds of thousands of Greeks, Cypriots, Croats, Slovenians, Bulgarians and Romanians, the right to permanently stay in the country. The right extents to everyone who will have come to the UK before a yet unspecified cut-off date, sometime between the activation of Article 50 and the actual Brexit day, so between 29 March 2017 and 29 March 2019.
However, the EU institutions have rejected this opening British offer as not going far enough and the second round of negotiations in Brussels shed light on where the divergences lie.
In a joint paper comparing the UK and the EU positions on the citizens’ rights one can understand where the main and most intractable differences have come up.
With regard to the rights of future family members of EU residents in the UK, the European Union negotiators claim that “this is an issue of preserving rights under EU law and not an issue of equal treatment. Family members… who accompany or join the EU citizen after the date of withdrawal may continue to benefit from rights of residence under same provisions as current family members.”
The British, however, take a different view: “Future family members will be subject to the same rules that apply to non-EU nationals joining British citizens, or alternatively to the post-exit immigration arrangements for the EU citizens who arrive after the specified (cut-off) date.”
Another point of contention refers to whether UK nationals residing in one EU member country would be able to freely move to other EU countries post-Brexit and enjoy the same rights in these other countries. “UK nationals only have protected rights in the state(s) in which they have residence rights on exit day,” the EU negotiators have stated. “UK nationals in scope should be able to change their place of residence within EU27 as per Directive 2004/38,” UK officials have retorted.
Reports say that the Europeans would be willing to grant rights for UK nationals in all EU countries if London accepted the right of EU nationals to come and go from the UK as they please.
But the most contentious issue concerns the enforcement of these right, who will have the responsibility of monitoring and oversight. As the European Commission’s chief negotiator Michel Barnier commented during a joint press conference with the UK Brexit Secretary David Davis this week, the EU opinion is that only the European Court of Justice can take on this job: “It is not a choice, it is an obligation”, he said.
But the UK position is quite different and quite unambiguous: “Rights granted through UK law and enforceable through the domestic UK judicial system.” As far the monitoring role is concerned, the UK position is that the European Commission will be the monitoring body for the EU of the 27. “UK prepared to consider establishment of an independent monitoring arrangement in the UK,” is the official British position.
Both sides are aiming to wrap up talks in this first phase of talks, covering the EU citizens’ rights issue, by the end of October, so that they can enter the second stage of negotiations on future trade. Until then, EU residents in the UK can only hope that the declared mutual goodwill is not just empty words./IBNA