Cross-border rights top of the EU's agenda for Brexit negotiations

European Council President Donald Tusk has called on the UK to come up with a "serious response" to the question of what will happen to EU citizens living in the UK post-Brexit. Yesterday, 27 EU leaders agreed their Brexit negotiating guidelines. One of the issues they want addressed in the first phase of Brexit talks is the rights of EU citizens to live, work and study in the UK. At a press conference following their meeting, Mr Tusk highlighted the importance of this issue, saying,

"Over the past weeks, we have repeatedly heard from our British friends, also during my visit in London, that they are ready to agree on this issue quickly... But I would like to state very clearly that we need real guarantees for our people to live, work and study in the UK."

He made clear that they are also concerned about the rights of UK nationals living throughout the EU. The numbers affected are high: I am one of an estimated 3.3 million non-UK EU citizens living in Britain, and approximately 1.2 million Britons live in other EU countries (with the largest populations in Spain, Ireland, France and Germany).  The focus by Mr Tusk, and the EU27, on urgently addressing the status and rights of these 4.5 million people is welcome. The Brexit referendum took place on 23 June 2016, over ten months ago. Negotiations will not be starting until a year later, after the General Election on 8 June. This has been a long and painful wait for many.  

There are serious concerns regarding the impact of Brexit on the 3.3 million EU nationals who currently live, work, study and/ or have families in the UK. This includes both short-term concerns, regarding the lack of certainty now faced, and longer-term issues. Continuing post-referendum uncertainty has caused serious distress to many. The situation was aggravated in the early months by contradictory policy statements regarding whether EU nationals are to be “bargaining chips” in Article 50 negotiations, and recent statements about the Government's determination to ensure a "good deal" for them (with unknown terms, at an unknown time in the future) has done little to assuage these anxieties.

Long-term, it is unclear what the impact upon EU nationals in the UK will be, given the absence of detailed proposals and the total uncertainty regarding how current residence rights will be approached. However, it is clear that there may potentially be a grave impact upon their rights, including in particular their rights to private and family life. Individuals who have moved to the UK, in good faith, and on the assumption that this would be their permanent home, may find their status downgraded. Individuals who are married to UK citizens, or who have children who are dual citizens of the UK and another EU country, are also unsure of the impact upon them, their spouses, and their children.

I and two Doughty Street Chambers colleagues, Susie Alegre and Katie O'Byrne, have given evidence to the Parliamentary Joint Committee on Human Rights (JCHR) on this issue, as have many others.  In December, the JCHR urged the Government not to use fundamental rights as bargaining chips in Brexit negotiations (Brexit and Fundamental Rights).  This was one of a series of reports from Parliamentary committees exploring the potential impact of Brexit including the implications for individual rights. The JCHR emphasised the importance of respect for the rights of EU citizens settled in the UK during Brexit. It called for the treatment of individuals settled in the UK to be resolved early in the process.  

This echoed earlier recommendations from the House of Lords EU Committee Sub-Committee on Justice.  Doughty Street's Baroness Helena Kennedy QC, in her role of Chair of that Sub-Committee, stressed that the UK had a “heavy moral obligation” to take steps to protect the rights of EU citizens in the UK.  

Yesterday, the leaders of the 27 EU States who will be sitting across the negotiating table from the UK Government in June echoed the concerns of these Parliamentary committees and called for concrete plans to protect the rights of the 3.3 million EU nationals who have made the UK their home. A serious response, and a swift one, is certainly needed.