Friday, 22 September 2017

Citizens' rights: will Theresa May keep her promise?

Did Theresa May just commit the UK to keeping a key Vote Leave promise? No, not the £350 million – we may be getting back full control over our own laws, but not the laws of arithmetic. I mean this one, signed by three current members of the Cabinet, Boris Johnson, Priti Patel, and Michael Gove:
There will be no change for EU citizens already lawfully resident in the UK. These EU citizens will automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present
In fact, when the UK belatedly produced its counterproposals on the rights of UK citizens in the EU and EU citizens here, they were considerably less generous than the offer made by the EU27, and in particular they explicitly removed a number of important rights.  Perhaps most obviously, the UK proposes that EU citizens in the UK will no longer have the same rights to be joined by family members, but instead will be subject to the considerably more restrictive rules applied to UK nationals:
Future family members of those EU citizens who arrived before the specified date – for example a future spouse – who come to the UK after we leave the EU, will be subject to the same rules that apply to non-EU nationals joining British citizens
Now, some might argue that this is “fair”, because it brings to an end a position where EU nationals in the UK (and indeed UK nationals elsewhere in the EU) have, in some respects, more rights than Britons here. On the other hand, EU nationals who moved here exercising their free movement rights did so on the basis that they had these rights, which the UK signed up to in various Directives. 

Moreover – and this is my view – if anyone is really worried about the “unfairness” to British citizens, then that unfairness could be ended tomorrow by the UK government, which could simply give us the same rights EU citizens have. The fact that most of those who make this argument are unprepared to contemplate this solution carries more than a whiff of hypocrisy.  Nor are these the only rights EU nationals will lose, as Dr Mike Ward explains.

Some commentators – in particular, Migration Watch and Daniel Hannan – continue to attempt to mislead the public about this: for example, Daniel Hannan recently claimed that “EU citizens will have all the same rights as now”, while Migration Watch argue that when they said that “EU citizens will keep their existing rights” they didn’t mean all their existing rights.  But no one senior in government has made such an obviously false claim; indeed, David Davis explicitly recognised that EU nationals would lose some of their current rights, saying “we agonised” over the issue.

That is, until today, when in response to a question from an Italian journalist, the Prime Minister did just that (video – at about 1.13):
Q.  As you said, 600,000 Italians now live in the UK.  You said that you want them to remain.  What is going to change for them – I guess something is going to change?
A. (the Prime Minister).  We set out that for those EU citizens currently living in the UK who have made the UK their home, including those 600, 000 Italians who are in the UK, we want them to be able to stay and to have the same rights as they have at the moment.
That is unequivocal.  The same rights they have now.  Now, of course, the Prime Minister’s statement is technically untrue – the UK has set out no such thing.

But that’s not really the point, because what matters is not what we’ve said so far, but what we do next – and in particular, what David Davis and Ollie Robbins, our lead representatives, say at the negotiations next week.  Monsieur Barnier has already signalled very clearly in his response to the speech that he expects them to make good on the Prime Minister’s promise. 

So do they say that the Prime Minister didn’t really mean it, or didn’t understand what she was saying, and that the UK’s position remains unchanged – we have no intention of giving EU citizens “the same rights as they have at the moment”?  In that case, why on earth should anyone in the rest of the EU27 take anything she, or the UK government says, seriously? Such a course would be deeply damaging to the Prime Minister’s credibility (especially in Italy, where her comments have been widely, and accurately, reported).  Or do they, belatedly, do the right thing, and change the UK’s approach -  a course of action which would generate a huge amount of goodwill?  Three million EU citizens here and a million Britons elsewhere in the EU are waiting to hear. 


  1. I was concerned that May, as she said this, appeared to check herself, as if she realised she'd spoken out of turn. Also the words 'we want them to be able to stay...' could easily turn into 'we want them to be able but we've looked at it and they can't...'. I think there are still ways the Government could try to roll back the rights of EU nationals in Britain.

  2. That's a very god point:

    "what matters is not what we’ve said so far, but what we do next"

    And, I think, a very telling one: M. Barnier and his negotiating team do not accept assurances and assertions, they deal in clear undertakings with penalties and an agreed adjudication forum.

    They are absolutely right to do so in the case of the United Kingdom: not just in the light of the indecision and unreliability of our negotiating team's political leadership, but in the face of malicious intent by the Home Office, whose actions against foreign citizens on British soil are in defiance of both international and English law, and - with apparent impunity! - in contempt of the domestic law courts.

    Meanwhile, I can add to your predictions for possible outcomes:

    It is possible that David Davis will do the right thing and agree to preserve the rights of EU nationals in full. Exactly as you say, and I live in hope.

    It is possible, as you say, that they will reiterate May's original 'offer' - oblivious or gleefully aware of the damage this will do to the United Kingdom - and I regard this is a real possibility.

    They could and probably will attempt a partial retraction: a form of words that superficially resembles option 1 -
    doing the right thing - but actually commits to rather less. Barnier will see through that immediately, but Davis is too dim to know that and I do not doubt that he will ignore Ollie Robbins' advice.

    A specific form of 'rather less' would be diluting or discarding any obligation to submit to the authority of the ECJ in the all-too-foreseeable cases where the Home Office applies its malignant proclivities to an EU national residing in the UK. Barnier is well aware of Davis and May's antipathy to the ECJ; he won't budge on that and his negotiating mandate is very clear - and the European Parliament's position on this very point was stated, explicitly, by Guy Verhofstadt this week.

    There is a realistic possibility of the talks breaking down on this particular point.

    Davis could consult the cabinet and the UK could 'flounce out' on this.

    Or indeed, just 'crash out' anyway; for any reason or none.

    Finally, there is an outside chance that David Davis could resign - 'flouncing out' in a personal capacity, without consulting the Cabinet or explicitly 'crashing out' the United Kingdom - throwing the negotiation into disarray. Or rather: leaving our negotiating team to clear up the mess, led by Ollie Robbins, who has the enormous advantages of being (a) competent, and (b) not David Davis.

    Have I missed anything?

    Any suggestions, now matter how unlikely or downright ridiculous, are still deserving of serious consideration in a world confronted by the ludicrous reality of Boris Johnson as our Foreign Secretary: it is is certain that our Government will pursue a course of damaging stupidity and we are all fools if we try to pick out a particular folly and predict whatever policies emerge from the miasma of delusion and mendacity.

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