The rights of EU citizens resident in the UK have been one of the difficult issues in the negotiations with the EU.  In the December 2017 Joint Report on Phase 1 of the Brexit negotiations, Theresa May’s government ended up agreeing that for at least eight years after leaving the EU, the European Court of Justice should have the final say on disputes involving EU citizens who remain resident in the UK. This amounts to agreeing to subordinate part of British law to the jurisdiction of the EU’s highest court for a significant period of time. This is one of the numerous areas in which the British government has failed to exercise its sovereignty decisively, and in the process failed to realise the democratic potential of Brexit or to put the EU under any political pressure to negotiate seriously.

 

The December 2017 agreement on EU citizens should be rejected. Instead all EU nationals who were living in the UK at the time of the EU referendum (23 June 2016) and who had a National Insurance number should be offered full UK citizenship and a British passport. The procedure should be expedited, and costs should be borne by the UK government. After an appropriate deadline has passed, those who choose to take up the offer will be treated as UK nationals and will enjoy the full rights accorded to British citizens by the authority of British courts and ultimately by parliament itself. Those who decline the offer can remain in the UK under the same terms as any other foreign national who has the permission to remain.

 

In light of basic principles of justice and fairness, this is simply the right thing to do. Citizenship is about where you choose to make your life and those EU nationals who have made their lives in this country should be offered UK citizenship. They came to Britain and made their lives here under EU treaties that gave them certain rights without being British citizens. British citizens have unilaterally decided to withdraw from those treaties. However, they did not vote to deprive their EU-national neighbours and co-workers of their right to live in Britain. Indeed, there is overwhelming public support for them to stay, including among Leave voters. As a basic matter of fairness, EU residents should be offered the same rights as British citizens free of charge.

 

Some resident EU citizens may consider this offer too much of a burden. Becoming a citizen means really being of a place and it makes it more difficult to live in that place without taking part in its civic life. Some people are quite happy living in another country for years without taking citizenship or voting in national elections. Perhaps because they feel empowered through their social status and occupation, they do not mind living - politically and in a civic sense - on the fringes of society.  They may not see much value in the offer of citizenship. There is no resolution to this particular disagreement as it expresses fundamentally different conceptions of citizenship. However they should not be required to take up citizenship, merely given the opportunity to enjoy the rights of British citizens.  

 

The offer of UK citizenship would make it clear there is nothing nativist or chauvinist about the decision to leave the EU. On the other hand, it would confirm that there will be no continued jurisdiction for the European Court of Justice after the UK leaves the EU. EU nationals can chose either to become immigrants with the same status as that of non-EU nationals up to now or not to be immigrants at all. If a more demanding understanding of citizenship, which has its roots in the republican political tradition, appears unappealing, then so be it.

 

Adopting this policy would rapidly solve the principal sticking points in the current negotiations on the rights of EU nationals. It may leave some EU citizens whose home countries preclude the holding of dual nationality with a dilemma, but the UK has no such qualms and obviously cannot be held accountable for the citizenship policies of other nations. For EU nationals who want to stay in the UK, it represents a better and more lasting solution than what the EU is currently seeking on their behalf, namely the creation of a special class of citizens, those EU nationals with permanent residency on 30 March 2019, whose rights would be as close to the status quo as possible.

 

One area where this offer might limit existing rights of EU residents is family reunification. Currently, the rights enjoyed by EU nationals in the UK allow them to circumvent what are otherwise a very restrictive set of rules on family reunification that apply to UK citizens. These include having to earn above £18,000 a year and having to go through a very expensive and complex application procedure. Becoming UK citizens would mean EU nationals are suddenly subject to these rules. In the short term, EU residents who took British citizenship could be exempted from these rules for a period of a couple of years to allow them to make arrangements. But in any case, these rules are not set in stone. They are current UK immigration policy and policies can change by electing governments that change the laws. As EU nationals would now be able to vote, they could mobilize politically in an effort to change the UK’s family reunification rules.

 

Two other sticking points would disappear overnight. One is the fear of EU nationals that future changes in British law may mean they end up being discriminated against, their rights slowly being whittled away as Brexit Britain descends into a hostile environment for EU nationals. It is true that any rights associated with permanent residency status could, in the future, be amended should the UK parliament choose to do so. The EU27 want to avoid this, perhaps by including in the Withdrawal Bill some commitment to take very close account of evolving EU law when considering the status of permanent residents in the UK who are EU nationals. But even this contains no absolute guarantee. The UK’s constitutional arrangements are such that parliament can rewrite laws relatively easily. The very best guarantee against any discrimination in the future is to eliminate the status of EU nationals as a minority; that is, to make them into UK citizens rather than EU migrants.

 

The final sticking point is about movement in and out of the UK. An EU national with permanent residency in the UK will lose that status if they move to another country for more than two years. Upon their return, they will need to apply again for permanent residency. No such restriction applies for a UK citizen. They can leave the UK for as long as they like and when they return they will still be a UK citizen as before. Leaving and re-entering the UK is therefore no longer a problem.

 

The message from this kind of unprecedented offer of national citizenship to EU nationals would be clear: Brexit is about reasserting popular control over British political life, not xenophobia. This requires a break with the EU’s constitutional arrangements, whereby the European Court of Justice adjudicates on disputes about the rights of EU nationals. The purpose of Brexit is not to strip EU nationals of their rights, nor is it to assert a nativist interpretation of Britishness. Yet, a change in the status of EU nationals is inevitable, as they will be living in a country that is no longer a member of the EU. By making the offer of UK citizenship, the government would offer to all EU nationals the full protection of British courts and recognise their decision to make their lives in the UK, which is at the very heart of what it means to be a citizen of a country. It also offers them the opportunity to participate fully in democratic decision-making, an offer which should be at the very heart of Brexit.

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About the author/s

 

Christopher Bickerton is Reader in Modern European Politics at the University of Cambridge. Peter Ramsay is Professor of Law at the London School of Economics.

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