E.g., 07/19/2017
E.g., 07/19/2017

The Good, the Bad, and the Fuzzy: Brexit Negotiating Stance towards Mobile EU Nationals Unveiled

Commentary
June 2017

The Good, the Bad, and the Fuzzy: Brexit Negotiating Stance towards Mobile EU Nationals Unveiled

Jay Allen/Crown Copyright

The pressure to respond immediately to the UK government’s opening bid on one of the most controversial Brexit headaches thus far—the future for the 3 million EU nationals living in the United Kingdom post-divorce—created a huge amount of noise and punditry, with individual aspects hailed variously as a constructive concession or terrible move. Twitter is a blunt tool for analyzing the complexities of an issue fraught with tradeoffs, overwhelming political constraints, and one of the most high-profile diplomatic negotiations ever initiated.

Examining the deal at a slightly longer remove, the UK government’s offer put forward on June 26 in many ways represents a thoughtful piece of immigration policy and recognition of the pivotal role that EU citizens play in the UK labor market and in its local communities. It acknowledges some of the key tradeoffs and makes sensible technocratic, political and symbolic concessions that lay the groundwork for a more amicable negotiation process. It is also the first sign the UK government has grasped the scale and complexity of the task, and the proposals move much further towards the position outlined in the European Commission’s “Essential Principles on Citizens’ Rights” paper issued in May 2017. Perhaps most importantly, the language of the UK statement seeks to provide a message of inclusion and stability for the mobile EU nationals—on both sides of the Channel—mired in deep uncertainty for the past year.

But the proposals also contain some glaring holes and vague elements, which may explain why the reaction was so mixed. While the Financial Times described the offer as “constructive” and a “good start,” the prominent EU law blogger Colin Yeo called it “minimalist.” EU and UK expat groups were also unhappy, with one calling the plan “deeply worrisome” and “mean-spirited.” And the rapid, multitweet reactions of free movement and EU commentators on social media varied widely. In other words, the reception was very much in the eye of the beholder.

Now that the dust has settled, does the UK opening offer represent a dramatic U-turn, stubborn resistance, or something in the middle? Does this positioning paper function as a useful starting point for negotiations or is it time to go back to the drawing board? Put simply, there is much to like in this deal, much to worry about, and lots of “wait and see,” as outlined below.

The Good

One of the most promising elements is the staggered approach for EU nationals resident in the United Kingdom, giving settled status to those who have lived in the country for five years and a conditional status with a pathway to settlement to more recent arrivals. This avoids a “cliff edge”—an arbitrary line between people who meet the threshold for years of residence and others who may have created lives in the United Kingdom and been in work but would be excluded. From the EU perspective, the offer does not go far enough since EU nationals would lose their status if they move elsewhere for more than two years. But this approach mirrors the rights of permanent residents from outside the European Union and follows international practice (for example, holders of the U.S. green card lose it if they remain outside the United States for an extended period), and as a result seems a reasonable starting point.

The most significant concession made is dropping the requirement for comprehensive sickness insurance, which was one of the reasons that EU nationals were previously being turned down for permanent residence (especially as applicant numbers went up post-Brexit referendum). According to EU social security law, the right for the economically inactive (whether students, carers, or retirees) to live in another EU Member State is dependent on having “comprehensive sickness insurance.” Many EU nationals reported having assumed that the National Health Service—a universal service that is free at the point of use—fulfilled this criterion, a stance initially rejected by the government.

The May government has also made a key concession on child benefits for those EU nationals whose offspring live elsewhere, agreeing to continue the practice of paying at UK rates instead of adjusting for the cost of living in the country where the child lives. This is surprising, since being able to index the child benefit to the rate of the country of residence was one commitment that former British Prime Minister David Cameron won from the European Commission prior to the referendum. Paying the benefit to children living in Poland, for example, at Northern European rates is unpopular with publics in a number of countries, and several Member States had been sympathetic to the Cameron government’s concern. So the fact that his successor, Theresa May, has now dropped this earlier-won agreement from her negotiating position represents a significant retrenchment (and also suggests the earlier push to wrest this agreement from the European Commission had little to do with the stated claim of seeking improvements to the system).

The Bad

The worst elements of the offer are those which are unseen. Bureaucratic processes often mean that the affluent and administratively proficient win, the disadvantaged and vulnerable lose, and lawyers profit from both. Although the requirement for comprehensive sickness insurance has been dropped, continued legal status will depend (1) on proving both continuous residence, and (2) economic self-sufficiency, employment for more than 16 hours a week, or active job search during all of that time. Gig economy or part-time workers, people who split their time between different countries, homemakers and caregivers, or even students may struggle to fulfill these criteria. Moreover, the requirement for EU nationals to register (and potentially receive an ID card) has been perceived by many as discriminatory and overly intrusive.

The government has also promised to use income records to streamline the application process, further raising the specter of discrimination against low-wage earners and other vulnerable groups—especially since EU nationals tend to be more vulnerable to labor exploitation (including payment under the minimum wage) and to be in informal work. Moreover, the fact that the application process has to be instigated by the applicant is likely to disadvantage anyone with limited language proficiency, literacy, or administrative confidence. The government has also made clear that it will seek to deport offenders, regardless of whether they have longstanding ties. And people will lose family rights, meaning that any future EU nationals will have to cross the current salary threshold of £18,600 to bring in dependent family members, which is unpopular.

A key question will be what happens to people who fail to apply or whose applications are denied. They could end up in a legal limbo: unlikely to be forcibly removed (the government lacks the enforcement infrastructure for mass-scale deportations, and the optics would be dreadful), but unable to access various benefits and services. The lessons of the last attempt at a mass regularization in the United States, when nearly 3 million unauthorized immigrants were legalized in 1986 but the law seeded the beginnings of a new unauthorized population, demonstrate how easy it is to create unintended consequences. The government has yet to discuss advice services and appeals systems for those who may struggle with the application process—especially since it has made clear that it does not want the involvement of the European Court of Justice.

Adding to this, it is hard to see how regularizing the status of up to 3 million EU nationals could be anything but a bureaucratic nightmare. The government has promised a more light-touch approach, and to do away with the 80-page form for applying for permanent residence. (The Migration Observatory has estimated it would take 180 years to process applications for all 3 million under current conditions.) Lighter touch aside, the government has said that EU nationals who already have permanent residence will have to reapply, creating substantial pressures on the system and applicants alike.

The Fuzzy

Finally, it is an open question how this deal will play in Brussels. Chief EU negotiator Michel Barnier, for one, said the proposals “lacked ambition.” There are some clear points of contention, not least the involvement of the European Court of Justice and the issue of acquired rights (put simply, the view is that the court will seek to uphold all pre-existing rights of mobile EU nationals, including the right of EU nationals in the United Kingdom to bring over family members). But there is also some intentionally malleable no-man’s land ripe for bargaining, chief amongst which is the issue of cutoff date: the date at which the period of UK residence for EU nationals will be counted to assess eligibility for settled status, and after which new EU nationals will have more limited rights of residence.

Another question is the status of UK nationals abroad, and how they will be treated by the European Union and individual Member States (a topic that is the subject of a research project currently undertaken by MPI Europe). The May government refused to unilaterally stipulate the status of EU nationals in the United Kingdom despite considerable parliamentary pressure (including a comparatively rare government defeat in the House of Lords), as it said such a posture would weaken its negotiating position. The UK plan frequently refers to the principle of reciprocity. This raises the risk that this deal could be derailed by other Member States should they prove individually unwilling to agree to EU-wide parameters for the treatment of British pensioners and other UK residents living on the continent. But does this mean that the UK government would respond tit for tat, or will it be willing to make concessions regardless of actions by individual Member States?

As far as opening negotiating statements go, there is much here to work with. But as is always the case, the devil is in the detail—and in the political response. Much remains to be seen.