The UK’s offer to guarantee the rights of EU citizens after Brexit falls well short of existing rights and protections and lacks clarity and legal certainty, according to a preliminary assessment by the European Commission seen by BuzzFeed News.
The assessment, which was presented to member states this week, covers five main areas: reciprocity, legal certainty, clarity, the role of the European Court of Justice (ECJ), and protection against future changes to UK law. On all five points the EU finds Britain’s offer to be lacking.
The EU’s overarching conclusion is that the UK proposal is “clearly below today’s EU rights”, and isn’t reciprocal.
The UK proposal came after the commission’s Brexit task force published a paper outlining its position. The EU wants to protect and guarantee all existing rights for life.
The offer unveiled by Theresa May this week is contingent on UK nationals living elsewhere in the EU being granted an equivalent status and on the expectation that the EU will offer reciprocal treatment for UK nationals resident in its member states. But it is unclear exactly what the British government means by reciprocity in this case.
The EU’s initial assessment is that maintaining the status quo for UK nationals in the 27 remaining states would mean they have more rights and favourable conditions than EU citizens living in the UK.
Experts have suggested that a reciprocal approach based on the immigration laws of each member state, on the other hand, would lead to a different suite of rights depending on the country. Such an arrangement would also be difficult for the UK to enforce.
A second area of concern highlighted in the assessment is a “lack of legal certainty” in the UK proposal: rights are being unilaterally decided by the UK.
Under the UK proposals, EU nationals and their families who have lived in the UK for five years will be able to apply for a new "settled status" after Brexit. EU citizens who have resided in the UK for five years at a date to be specified between the triggering of Article 50 (29 March 2017) and Britain’s formal exit from the EU (29 March 2019) will be eligible for the new status. And anyone who arrived before the specified date but were in the UK for less than five years will be given the opportunity to work towards the status. The new status aims to provide EU citizens with rights comparable to UK citizens for education, benefits, pensions, and healthcare.
The assessment seen by BuzzFeed News argues that definitions determined by UK law and not by EU law lack clarity.
From the documents published by the UK government it is unclear, for example, how long students will be able to stay to look for work after graduation. One of the principles set out in the EU's proposals is a guarantee of continued rights when EU27 citizens and UK nationals change status (for example that an EU student could become a worker after completing their studies without having to comply with immigration law for third-country nationals).
Other details missing from the UK document is the status of so-called frontier workers: people who work or have worked in the UK while residing elsewhere in the EU, or Britons who work or have worked in the EU27 while residing in the UK.
The UK offer also suggests that the settled status could be lost if someone left Britain for more than two years. It is also unclear how the UK would consider EU citizens who lived and worked in the UK in the past, as well as how vested rights would be directly enforceable. The offer is also short on detail in regards to the status, and the full suite of rights and protections, of EU citizens' family members, present and future, including children.
An approach based on definitions outlined in EU law would essentially allow negotiators to pool the rights of defined groups (for example, the rights of students, workers, etc), to list all their existing rights, and to then negotiate how these would be maintained right-by-right.
The EU’s preliminary assessment goes on to say that there is “no guarantee of ‘settled status’”. The UK document says that requirements will include residence in the UK for a set length of time (and proposes five years) and an assessment of conduct and criminality, including not being considered a threat to the UK.
The government says it will publish the full criteria in due course. The EU assessment states: “Many issues are still to be clarified.”
The assessment also notes that the UK refuses a role for the European Court of Justice in any new arrangement. The UK offer is that commitments to EU citizens would be enforceable through UK courts. The EU argues that there needs to be a mechanism to settle any disputes and protect citizens from possible changes in national legislation, in the UK or elsewhere in Europe, and points to a role for the ECJ to achieve this.
The assessment concludes that May’s proposals provide “no protection against future changes of UK law”.