Legal experts: Brexit ‘biggest loss of rights in history’

An open letter by two European legal experts, published in Le Monde , calls for bilateral agreements to ‘limit to the damage caused by this sudden and unprecedented loss of rights’

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Two legal experts have written an open letter in French newspaper Le Monde, calling for an improvement of Britons’ EU rights, after likening Britons’ post-Brexit status to that of “Chinese tourists”.

Professor Alberto Alemanno (Jean Monnet Professor of European Union Law & Policy at HEC Paris) and Professor Dimitry Kochenov (an expert on EU Constitutional Law and member of the eLab Europe, HEC-NYU Public Policy Clinic in France) wrote the open letter, which was published in newspaper Le Monde.

The HEC Paris considers Professor Alemanno to be “one of the leading voices on the democratisation of the European Union, [whose] research is centred on how the law may be used to improve people’s lives”.

Professor Kochenov is a specialist in EU citizenship, and has written several books on the role of rights in the EU.

Their joint open letter begins: “The most dramatic consequence of Brexit is the loss of European citizenship for British people.

“On 31 December 2020, 67 million UK nationals lost the right to settle and work in the EU and other countries. Similarly, EU citizens have lost these rights in the territories of the United Kingdom.

“This is the biggest loss of rights in history.”

The letter continues: “Unsurprisingly, the value of the UK passport has collapsed, passing from the top 10 to a much more mediocre place: the rights attached to it are now equivalent to Argentine or Brazilian nationalities.”

The letter highlights that UK citizens had previously been free to travel in the EU, and even live there, and “had the right to not be discriminated against and to be treated as a national in each EU member state, whatever their nationality”.

It states that while Britons do still have the right to stay in the EU without a visa for 90 days within 180, this right is “not unconditional”, and that “the status of a UK citizen after Brexit in Europe is now equivalent to that of a Chinese tourist, with the exception that the land and the economy of the UK are not comparable to those of China”.

It says: “This is a terrible attack on the rights of all British people, whether we are talking about the millions of citizens whose lives are strongly linked to the European continent, or those who have never had this opportunity.

“But instead of railing against the UK's decision to leave the EU, it is time to think about limiting the damage caused by this sudden and unprecedented loss of rights.”

Bilateral agreements

The authors write that restoring the free movement of people within the EU would not be possible as this would require the renegotiation of the agreement established around Christmas 2020.

It would also, they say, “would go against one of the major reasons behind Brexit: the reduction in the number of EU citizens residing in the UK, accused by [former PM] Theresa May, of ‘free riding’”.

However, they continue: “Happily, one important factor could diminish this loss of rights: nothing, in EU legislation or the EU-UK agreement, is stopping the [EU] member states from giving third party citizens (such as UK citizens in 2021) the right to work, live and to non-discrimination.”

They state: “Agreements of this nature could change the game for UK citizens. The EU member states could allow, in this way, UK citizens to live and work in their countries without discrimination.”

The letter continues: “Mitigating the effects of Brexit that have disrupted the most fundamental rights of citizens can only be in the interest of all the nations concerned.”

It uses the example of the Ireland-UK common travel agreement as an example of “a bilateral approach”, which could “mark a new start”. The UK is also “capable of rapidly making agreements with France, Denmark, Norway and Switzerland, and a handful of other countries, on a reciprocal basis”.

The writers explain that EU law, which is otherwise “very rigid in terms of visas”, does not apply to bilateral free movement agreements, and could offer “all nations concerned an excellent chance to adopt a more flexible and beneficial approach for everyone”.

Reciprocal rights and distinct traditions

The letter adds: “Such agreements could mitigate, at least in part, the loss of rights caused by Brexit, and correct the situation for all citizens, European and British.

“A bilateral agreement on free movement of people would be a first step in repairing the damaged relations between the UK and continental Europe. The growing complexity of the map of European citizens’ rights, inherent in bilateral agreements, should not discourage us from thinking of a proactive way to find solutions to exit this impasse.”

It concludes: “For this reason, it is crucial to focus on rights of residence, non-discrimination and the work of citizens who live on our continent.

“At the end of the day, we must preserve the history, geography, culture, languages and traditions of our countries, rather than the uniform approach promoted by the EU, which denies all of this complexity, and which has led to no results when it comes to bilateral agreements.

“Where the supranational bilateralism of the EU and UK has failed, the national bilateralism between France and the UK - or Switzerland and the UK - is destined to succeed.”

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