The Guest Blog

Guest post by Jo Antoons, Partner, and Andreia Ghimis, EU Legal Affairs Specialist, Fragomen.

On January 17, the British Prime Minister, Theresa May, gave a speech explaining what she and her team understand ‘Brexit means Brexit’ is to be in fact. She took a strong stance, highlighting that her government prefers losing access to the European Single Market if the price to pay is an EU-dictated immigration policy. Time will tell whether her intransigence is genuine or simply a strategy to intimidate a nearly silent – for the time being – negotiation partner. Later on, the UK government led by Theresa May published a White Paper confirming this tough position and giving a bit more insight into what the UK wants from the EU in terms of immigration. But while numerous things remain to be clarified, the willingness to ensure legal certainty for UK nationals already in the EU and for EU nationals already in the UK seems to be a consistent element of the UK’s withdrawal guidelines.

On the other side of the channel we have not yet witnessed equally bold statements. The most outspoken institution on this issue has so far been the European Parliament, with a number of MEPs – among them the Parliament’s key Brexit negotiator, Guy Verhofstadt – arguing for the establishment of a new concept of ‘associated citizenship’ for UK nationals who will be losing their EU citizenship as a consequence of Brexit. Whereas this could be a way of preserving rights for UK nationals, a practical implementation of this idea is very hard to imagine. Furthermore, the Commission and the Council have remained stubbornly silent concerning all aspects of Brexit.

This confusing context has plunged many citizens into severe uncertainty. Individuals and businesses alike have been struggling even before the referendum to understand what Brexit will cost them, most of all in terms of their rights. The sooner an end is put to this uncertainty, the better. As the moment when Article 50 is triggered is rapidly approaching, EU and UK negotiators will have to:

Start placing priority on people

Prime Minister May seems to have understood that before services, goods, trade and economy come people. This is why, one of her first priorities is to give guarantees to UK nationals living in EU countries and vice versa. In fact, it seems that the bilateral meetings between the UK and some EU countries have focused primarily on this topic. Now EU leaders must also acknowledge the particularly challenging circumstances of these citizens and work together with the British Prime Minister towards a solution as soon as divorce talks begin.

Be clear about who? when? and what?

Negotiators will have to be very specific about who exactly will be able to maintain post-Brexit rights and what rights these people will still be entitled to. A precise cut-off date will be crucial. In addition, policy makers will have to decide whether a simple residence or a long term residence in the EU/UK will be required by this date to maintain rights. And what rights are we talking about? The first rights that pop up in our minds are those deriving from the EU citizenship. But, in practice, people’s lives are far more complicated. They are not only asking about their right to free movement, to vote in EU and municipal elections, but also if their children will be entitled to equal treatment in terms of access to education, if their family will be able to visit them easily and if their spouse (third country national) will be able to maintain post-Brexit residence rights.

Understand what reciprocity means and how it can be delivered

There is no doubt that the EU and the UK will be aiming for reciprocal agreements both regarding the situation of their citizens currently residing in the UK/EU and concerning the future immigration rules between the two partners. However, while achieving reciprocity seems mostly a question of political will, reciprocity may prove to be more difficult to implement in practice than to agree on in theory. Indeed, obtaining full reciprocity can be harder than it appears. Apart from political commitment, creative legislative solutions will be needed.

On the one hand, despite the UK´s commitment to ensure certainty for EU citizens, the latter are currently facing huge administrative issues in trying to register to secure post-Brexit rights. On the other hand, the EU cannot define the rules on acquiring national citizenship, as this is a competence that is reserved for the individual member states, and can only regulate other type of immigration rules (for instance long term stays) by means of directives which give national administrations room for manoeuvre. This can lead to variable geometries. So, policy makers will have to pay attention to avoid that Brexit leads to UK citizens in Spain being treated more favourably than UK citizens in Germany, for example.

When discussions begin, but even before that, EU and UK negotiating teams will have to reach out to stakeholders and people on the ground to clearly understand what is at stake. We are certainly now at what seems to be a point of no return, but the destination, although fundamental, is still very much unknown.

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