British officials raised the issue with their European counterparts during three-and-a-half days of intense technical talks. The EU made clear it would not move without a reciprocal offer for European nationals living in Britain that would allow them to move to another EU country and return to the UK.
The discussions underscore the uncertainty facing nearly 5 million people caught on the wrong side of the Brexit divide, although both the UK and the EU have made citizens’ rights a top priority in Brexit negotiations.
Around 1.2 million British nationals living in the EU would be affected, meaning, for example, a British national currently living in Germany would be unable to move to France, Austria or any other EU member state after Brexit. The outcome could be seen as counter to the EU’s stated aim of allowing citizens to live their lives “as if Brexit never happened”.
Senior EU officials said they were ready to look at the issue, but the UK had to make a reciprocal offer to protect the 3.5 million EU nationals living in the UK, to allow, for example, a German resident in Manchester to return to their home country for a few years and then resume life in the UK.
A UK source close to the negotiations said there was agreement on 50% of the issues on citizens’ rights.
“But we still have doubts about the EU’s plans and their commitment to upholding citizens’ rights,” the source added. “The UK has put a serious offer on the table, but there are significant gaps in the EU’s offer.”
The British government has proposed “settled status” for EU nationals, but this would be lost if a person left the UK for more than two years, unless they could prove they had strong ties.
The EU is seeking an open-ended guarantee that would allow European citizens to resettle in Britain after an indefinite period living in another country.
“We would start from the assumption that in order to maintain the right of EU citizens to move around the EU27, this would require the UK to reciprocate by allowing EU citizens to continue to moving around freely,” a senior EU official said. “This is is a subject of negotiations.”
The issue emerged during detailed talks on protecting citizens’ rights, a politically sensitive issue that touches employment, healthcare to pension rights and education.
Although the UK’s Brexit secretary, David Davis, said he was encouraged by progress, the talks exposed a deep division over the European court of justice. The EU wants the ECJ to resolve any dispute over citizens’ rights, while the British are adamant that British courts should be the venue for a country no longer part of the EU.
Theresa May has vowed to take the UK out of ECJ jurisdiction and the EU’s demands are seen as “judicial imperialism” by London.
British negotiators think it is “a big ask” to give EU nationals the right to take the British government to a foreign court, making clear that the issue will remain a dividing line until an EU summit in October.
The EU vowed to defend the role of the ECJ in protecting the rights of EU nationals. “This is not a political point we are making, it is a legal one,” said the EU’s chief negotiator, Michel Barnier. “Only the court can interpret EU law; it is not a choice, it is an obligation. We want our citizens to be protected by EU law.”
The talks on citizens’ rights revealed other divisions and questions:
- Britain wants to run criminal record checks on EU nationals when they apply to stay in Britain, which differ from those allowed under EU law. EU negotiators said they needed more details.
- The 1.2 million British nationals in other EU countries should be able to get documents to prove their post-Brexit status, British negotiators have said, while the EU does not see this as a priority.
- Britain wants to keep the European health insurance card, which entitles British travellers to free or low-cost state-provided healthcare in Europe. But it remains unclear whether the EU will agree to this.
- The British side thinks the EU has ignored tens of thousands of “posted workers” who have been sent to the UK on short-term contracts. The EU argues that posted workers should not be part of the Brexit citizens agreement, because they continue to pay national insurance to their home countries.
The two sides did not strike any deals, but this was never expected during the first round of detailed discussions, where the main goal was to air differences and map out agreements.
British officials sought to reassure the EU that they wanted to preserve EU citizens’ rights under existing European law and were not trying to invent a brand new system. But they have been irritated by accusations of being unprepared and failing to come up with a serious offer.
The European parliament has threatened to reject any divorce deal that leaves European citizens worse off than they are now. Privately some European diplomats think the EU is closer to the British than the heated rhetoric suggests.
Citizens’ rights are likely to be an area where the EU is looking for the most detailed guarantees when it assesses whether the UK has made “sufficient progress” to allow talks to progress. Barnier is expected to make a recommendation to leaders at a summit in October.
Whereas the final divorce bill will be deliberately vague and the text on Ireland could be limited to a political declaration, the EU wants to nail the British down to precise guarantees on citizens’ rights.
Three more rounds of Brexit talks are scheduled for August, September and October, ahead of that summit.
Author: Jennifer Rankin