Now that both the UK government and the EU have set out their proposals for citizens’ rights after Brexit, it’s clear that both take the concept of reciprocity as a starting point. But the EU and the UK have a profoundly different understanding of what reciprocity means. While the EU approaches reciprocity as a moral principle and legal guarantee in its offer, the UK merely uses it as a technique to delay making commitments and with which to make threats that its offer is dependent on the EU doing the same. Here, Professor Stijn Smismans argues that the UKs proposals for citizen’s rights of EU citizens living in Britain inspires a race to the bottom at the expense of both EU citizens in the UK and its own citizens in the EU, but the EU is unlikely to fall into that trap.
Unilateral offers are not sufficient
There are good reasons to argue that unilaterally guaranteeing citizens’ rights is not actually the most appropriate solution for Brexit negotiations.
During the recent UK election campaign, Labour offered to unilaterally guarantee the rights of EU citizens living in the UK. This seems morally the right thing to do as it would avoid making these citizens a bargaining chip in Brexit negotiations. But at the same time, it would make UK citizens living elsewhere in the EU more exposed to trade-offs between their rights and other points under negotiation.
Unilateral solutions also fail to recognise the cross-border dimension of the lives of the individuals involved, both EU and British citizens. EU citizenship provides a comprehensive set of rights, such as the recognition of qualifications, healthcare co-ordination between member states and rules to transfer entitlements, such as pension contributions, to another country. Such rules require international solutions and cannot simply be resolved by unilateral action from one party at the negotiating table.
Even offering British citizenship to all EU citizens in the UK, as former Greek finance minister Yanis Varoufakis has suggested, is not an appropriate solution as it would not account for such cross-border issues. Not all EU countries allow dual citizenship and some people may have to give up their citizenship of origin if they want to take British citizenship. This may have dramatic consequences. For instance, unlike EU citizenship, British nationality may not allow them to bring over their ‘foreign’ elderly mother in need of care while having given up their nationality of birth they may no longer be able to return to take care of their mother in their country of birth.
The EU’s approach to reciprocity: moral principle and legal guarantee
The concept of reciprocity is therefore a more appropriate guide to dealing with the rights of the 3.3m EU citizens in the UK and 1.2m British citizens in the EU after Brexit.
There is a strong moral argument for reciprocity. Both British citizens in the EU and EU citizens in the UK have built up their lives in a foreign country in the legitimate expectation that EU citizenship would protect them. They were never asked to obtain visas, were never told their stay would be temporary, and (with the exception of national voting rights) were treated in pretty much the same way as nationals. They deserve to be treated equally in the opportunity to retain the life and rights they have legitimately acquired.
The EU has taken reciprocity seriously as a moral starting point. It has offered that all the rights of both EU citizens in the UK and the British in the rest of the EU will be protected for life. To ensure that, the EU also approaches reciprocity as a legal guarantee. The EU wants to protect citizens’ rights post Brexit via an international agreement between the UK and EU that sets out in detail citizens’ current rights for life, to be protected by judicial control of the Court of Justice of the EU.
Under such an international agreement, which can be part of the UK’s Article 50 withdrawal agreement from the EU, or be a separate citizens’ agreement, each set of citizens acts as a safeguard for the rights of the other. Without such an international agreement, these citizens lose each other as safeguards and will be at the whim of national governments, which will undoubtedly undermine the rights on which they have legitimately built up their lives.
The EU might be willing to compromise by accepting an international court other than the Court of Justice to control the agreement, but legally safeguarding reciprocity at an international level is a strict condition for the EU in its Brexit negotiating position. As Antonio Tajani, president of the European parliament, said on a recent trip to the UK: “For us, the agreement is [to have the same rights] as today [and] yesterday, tomorrow … For us, it is a priority and it is a red line.”
The UK’s approach to reciprocity: excuse, and threat in negotiation
In contrast to the EU, the UK government’s approach fails to recognise reciprocity as a moral and legal principle. The government’s rhetoric on reciprocity has first been used simply as an excuse to not make any unilateral commitments to protect EU citizens’ rights in the UK. Now the negotiations with the EU have started, the UK uses reciprocity as a threat in the negotiations; namely, ‘EU citizens in UK cannot have more rights than British citizens in the EU’. However, this approach is counterproductive both as a legal solution and as a negotiation strategy to protect these rights.
In fact, despite the government’s cheap rhetoric on reciprocity, its proposal on citizens’ rights is profoundly based on unilateralism instead of reciprocity. It disregards the nature of the cross-border lives these 4.5 million people have built up over the years, and the legal complexities involved. The UK intends to act unilaterally on the residence status of EU citizens by turning them into immigrants under general UK immigration law. EU citizens would lose rights that were specific to them, such as the right to vote in local elections and certain rights on family reunion. Moreover, their future fate will be dependent on the changing approaches of future governments to immigration policy. Hence, the UK fails to recognise the moral principle that EU citizens in the UK and British in the EU have built up their lives in the legitimate expectation of being protected by the rights of EU citizenship. It equally fails to understand the need of an international agreement as the only way that can legally guarantee those rights for the future.
As a negotiation strategy the UK’s threat is entirely worthless, and if anything, could only result in a race to the bottom on citizens’ rights. The EU’s offer on citizens’ rights provides maximalist protection and is thus far more generous than the UK’s offer. If the UK asks for reciprocity, that would only imply asking the same diminishing of rights for British citizens in the EU as it proposes for EU citizens in the UK.
If the EU would really ‘reciprocate’ on the UK’s offer, it would leave it up to the 27 individual Member States to deal with the residence requirements for the British living in their country, leaving the British in the EU at the mercy of 27 different and changing immigration laws on which the UK would have no longer any leverage.
So, instead of accepting reciprocity as a moral principle and legal guarantee, the UK is turning it into a race to the bottom at the expense of both EU citizens in the UK and its own citizens in the EU. However, rather than entering that race to the bottom, the EU is likely to stand firm on its maximalist protection of citizens’ rights, without which any further Brexit negotiation will fall apart.
Stijn Smismans is Professor of European Law, Director of the Centre for European Law and Governance, Cardiff University
This post represents the views of the author and neither those of the Welsh Brexit blog, nor Cardiff University