Ring-fence Britons' Brexit rights - clarification

uncertainty over a possible no deal Brexit as Dominic Raab meets Michel Barnier
The 'citizens' rights' of Britons abroad in the EU and EU citizens abroad in the UK was a key part of the Brexit negotiations

The UK’s Brexit Minister has written to the EU encouraging it to agree to ‘ring-fence’ the rights of Britons living abroad in the EU and EU citizens abroad in the UK – however contrary to some reports, the EU has issued no response to this as yet.

Some media today show headlines such as “Michel Barnier REJECTs attempt by UK to guarantee protection of citizens' rights in a No Deal Brexit” (The Daily Mail) or “The EU dismisses UK demands to protect rights of Brits abroad in a no-deal Brexit” (Business Insider) – however the only ‘rejection’ dates from a letter on March 25 this year which had already been made public.

It comes after The Guardian last night wrote about the UK’s new letter to the EU saying that the UK was asking the EU to ‘think again’ after the EU had rejected an appeal to safeguard all of the citizens’ rights negotiated in the withdrawal agreement (WA) in the event of a no-deal Brexit (what rights campaigners refer to as ‘ring-fencing’ the rights).

The idea of ring-fencing is to hive off the rights part of the WA which seeks to ensure that most of the key EU rights of ‘citizens’ living abroad in the EU exercising their free movement rights are protected after Brexit.

‘No-deal’ refers to the UK ‘crashing out’ of the EU without the negotiated WA.

At present no-deal means, for example, that Britons in France would depend on France’s own internal no-deal laws to safeguard their right to stay in France (by applying for new cartes de séjour). It would also depend on the UK and France signing a bilateral deal in order for British pensioners to continue accessing healthcare paid for by the UK, though France has said it would allow them to continue as now for two years.

Pensioners in France would also rely on a similar bilateral agreement being signed in order for their state pensions to be uprated each year after next year (the UK has said they would uprate again next year even if there is no deal), or in order to continue claiming exported UK disability benefits.

To clarify, here is the timeline of what has happened in the last few months:

1.  An amendment tabled in the UK parliament by MP Alberto Costa was passed by the British MPs. It asked the UK government to seek an agreement from the EU to agree to ring-fencing the rights. 

2.  The UK’s Brexit Minister followed up on this, telling EU negotiator Michel Barnier in a letter about the MPs’ amendment. The letter said that the UK is trying to protect the rights of EU citizens abroad in the UK with its own UK measures and it is aware of how the EU is encouraging the 27 other member states to do the same for Britons.

However it said the UK has some concerns about the rights of UK citizens abroad in the EU being protected consistently, as there is some variation across the EU. It also said that the UK has particular concerns about Britons’ healthcare rights.  Mr Barclay said the UK would welcome the EU’s views on the MPs’ proposal. 

3.  Mr Barnier wrote back on March 25 saying that the EU’s view is still that the best way to safeguard rights is to ratify the WA. 

He said he knew about Mr Costa’s amendment, but noted that it contradicted another vote by the British MPs on March 13 rejecting the possibility of leaving with no deal.

He said the European Council had stated in December 2018 that the WA was no longer open for renegotiation [though the EU is willing to consider changes to the 'political declaration on the future relationship', a document attached to the WA which forms the basis for negotiating a deal on trade and other matters after the UK leaves]. 

He added that the citizens’ rights part of the WA is part of an “overall and comprehensive approach”, including making sure there is no hard border for Northern Ireland and Ireland “to the benefit of the citizens residing there”.

It was therefore “far from straightforward” to work out which parts could safely be “carved out” of the agreement, Mr Barnier said in the letter.

4.  On Monday this week Mr Barclay wrote replying to Mr Barnier, asking him to reconsider. 

He said he had held recent meetings with British in Europe (BiE) campaigners and the3million group for EU citizens in the UK.

He said the idea, backed by these groups, is not to reopen the negotiated WA, which was intended to be the exit agreement as provided for in article 50 of the Lisbon treaty, and which the UK still hopes to be able to conclude if possible.

Instead he said ring-fencing means that the citizens’ rights part would become an alternative WA on its own if the other one is not passed [so far, the negotiated agreement has been rejected by the UK parliament, notably due to provisions concerning Northern Ireland].

Mr Barclay said he has now had support from Scotland, Wales and Northern Ireland for such an approach. 

He said BiE have told him that a ring-fenced rights agreement is “far superior to 28 national unilateral solutions”. He also noted that there is growing support from MEPs for this.

The letter indicates strong support from the UK for the idea while still not asking outright for it. It concludes saying: “I suggest that together our officials continue to work on how we best protect citizens’ rights in all scenarios”.

British in Europe co-chairwoman Jane Golding said in a statement published on the group’s website: “We are pleased to see that our recent meeting with Secretary of State for Exiting the EU Steve Barclay has resulted in a clearly worded letter to Michel Barnier reflecting fairly and fully the issues we raised”. 

She added: “The existing withdrawal agreement is far from perfect– for example it does not include the free movement that so many of our members rely on for work and to keep their family together. However, it is certainly far better than what would happen in the case of a no deal.”

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