The UK has to stop pretending it doesn’t matter that there has been a 96% drop in the number of nurses coming to work in Britain, that EU academics are leaving at a faster rate than they’re being replaced, that only one in 50 job applicants to Prêt a Manger is British. Or that 65% of highly-skilled EU workers find Britain a less attractive place to live than they did a year ago.
The UK has to stop pretending it’s an island. It is an island only in the sense that it’s surrounded by water. The last time that mattered was 1941. It is one of our many misfortunes that we have a Prime Minister who studied Geography.
Even more unfortunately, she spent six years in the Home Office and has not yet got over it.
All in all, it would not be sensible to expect much from the Government proposal on the reciprocal rights of EU and UK citizens except that it would eventually be published, and it has (Safeguarding the position of EU citizens in the UK and UK nationals living in the EU, HM Government, 26/6/17). Described by the EU as “vague” and “worrisome,” by UK expats in Europe as “pathetic” and by Jeremy Corbyn as “too little too late,” it has underwhelmed Europe and provoked anguish among the people to whom it most matters.
By the standard of Mrs May’s government this is a substantial document, but the standard is not high. At around 20 pages, it sets out the Government’s plans with apparent clarity. Until the UK’s exit, EU citizens will continue to enjoy the rights they already have; post-exit, those who came to the UK before a “specified date” (which is to be negotiated) will be able to apply for “settled status” when they have lived in the UK for five years, and can apply for temporary status until they have accrued their five years. Their family dependents can apply for settled status. “They will be free to reside in any capacity and undertake any lawful activity, to access public funds and services and to apply for British citizenship” (para 6). There will be a grace period to allow people to send in their applications after Brexit.
With diligence the document works through various scenarios. It sets out, in nice little boxes, how different EU nationals, who are given names so we can imagine them, will be affected. Here are Audra and Ignas:
Audra and Ignas moved to the UK from Lithuania in 2015. They are married and expecting a baby later this year. After the UK leaves the EU, Audra and Ignas will be able to stay in the UK during the grace period… Once they have been resident for five years they will be entitled to apply for settled status…
Their son or daughter will also have the opportunity to stay permanently in the UK. They… will need to apply for settled status on their child’s behalf…
That’s all right, then.
Poor Aisha, though, has made the mistake of getting here after the specified date:
If the specified date is pre-exit, Aisha can still exercise her free movement rights to live in the UK until the UK leaves the EU. However, once the UK leaves the EU, Aisha’s free movement rights will end. [She] will be able to stay during the blanket (grace) permission period – but she must apply for permission to stay here beyond that period. If Aisha successfully applies for permission to stay, she will be granted a temporary residence document.
If Aisha wishes to stay in the UK after her temporary permission expires, she will need to obtain further permission. Her eligibility for further permission will depend on the rules in force at that time.
That last sentence is a perfect specimen of its kind. It is May’s Home Office made manifest.
The British expats are dealt with in a more summary fashion. It’s assumed, not very politely, that the EU will make reciprocal arrangements for them (it has repeatedly said it will). They will be all right, too, because their State pensions will continue to be paid and “uprated.”
Comparison with the position paper published by the EU in April (Essential Principles on Citizens’ Rights, European Commission) is a comparison between different cultures. The EU paper is much shorter (it is not trying to create a new category of citizenship), but it’s also more succinct and makes frequent use of cross-referencing to EU legislation, which gives it a solidity and breadth which the British document lacks.
The British proposal deals with its subject as if there is no horizon, no context, no substrate of law and human rights. Perhaps this is what Michel Barnier means when he criticises its lack of ambition; or perhaps he means – and it’s true – that the height of its ambition is merely the floor of decency, while the height of the EU’s matches the highest goals of the EU: liberty, community, self-expression.
The EU wants both EU and British citizens to retain, in perpetuity, exactly the rights they have now. It offers them the right to live, work and retire in any other EU country. A breath of generosity and freedom blows through it: “EU27 citizens or UK nationals who resided legally respectively in the UK or EU27 at the date of entry into force of the Withdrawal Agreement should be considered legally resident even if they do not hold a residence document evidencing that right.”
Para 17 of the British Government paper says: “All EU citizens (and their families) in the UK, regardless of when they arrived, will, on the UK’s exit, need to apply to the Home Office for permission to stay, which will be evidenced through a residence document… Following the UK’s exit from the EU, the Government may wish to introduce controls which limit the ability of EU citizens (and their families) who arrive in the UK after exit to live and work here… Without a residence document, current residents may find it difficult to access the labour market and services.” (My italics.)
It’s not surprising that EU nationals are not reassured by this policy paper.
The Government has done some good things in it. It abolishes the nightmarish need to demonstrate past possession of sickness insurance. It promises to introduce a streamlined application process. It guarantees settled status to family members of EU citizens who qualify for or already possess that status.
But it will impose an income threshold of £18,600 on family members from outside the EU joining EU citizens who married after March 2019. And the announcement of the “streamlined” application process has provoked fury among the 150,000 EU citizens who have already completed the Home Office’s arduous application procedure, since they will now have to apply again.
And what about that crucial “specified date” (which, as the document proceeds, begins to sound more and more like a euphemism for something that must not be named, like the “donations” in Never Let Me Go)? The EU, reasonably, wants it to be the date when the UK leaves the EU. The UK, with clock-watching meanness, says it could be as early as the day Article 50 was invoked. In that case, hundreds of thousands of EU citizens living here have already forfeited their rights.
There’s a more intractable problem, and it’s one that surfaces everywhere in the negotiations that will have to take place with the EU. It’s the European Court of Justice.1 Britain refuses to accept the ECJ’s jurisdiction after Brexit; the EU says it is indispensable. In this case, it is said to be necessary to protect the rights of EU citizens in the UK against the possibility that any agreement reached with the EU may be reneged on by a future British government. (And it may: see para 17, above.)
Well, you may say, the problem of the ECJ will be solved by some means or other, and the rest can be negotiated. This policy paper represents merely the opening position in a negotiating process. As such, it’s not too bad, surely?
It’s a start. But the fact that it’s the opening position in a negotiating process is the worst thing about it. It’s this that has cast EU citizens in Britain and British expats in Europe into renewed despair. For nothing in it is unconditionally guaranteed. It could all vanish in the blink of an eye if the talks fail.
Jeremy Corbyn, in the Commons, said that an unconditional offer could and should have been made a year ago. But the Standard (June 23) revealed that that chance had already been declined. “In the days after the referendum, David Cameron wanted to reassure EU citizens they would be allowed to stay. All his Cabinet agreed with that unilateral offer, except his Home Secretary, Mrs May, who insisted on blocking it.” Theresa May has said this is not her recollection of the meeting.
For a year we have been waiting for this lamentable Government to set out its negotiating stance on Brexit and, now that it has finally started to do so, it has begun with an issue that should never have been a negotiating matter in the first place.
There’s something else and it isn’t talked about. Joris Luyendijk, writing in the Guardian, 29 June (‘Brexodus has begun’), pinpoints it from the other side of the fence: “The real problem with the offer is not that it is unfair but that it cannot logically be fair. If EU nationals kept all their rights post-Brexit they would end up with more rights than the local population…”
In other words, by leaving the EU we are giving up some of our rights.
Of course we are.
Then why the hell are we doing it?
1 I wrote about the ECJ in It’s not raining, 2 June.