No deal Brexit: on the road to nowhere for citizens’ rights

This post, co-authored by project lead Dr Michaela Benson and Professor Dimitrios Giannoulopoulos was previously published on the Britain in Europe website on 21st December 2018.

With the UK experiencing its deepest constitutional crisis of modern times, and amidst the drama coming from Westminster in the last couple of weeks, few will have noticed the DExEU’s policy paper on citizens’ rights published on December 6th. But it is precisely these citizens (EU citizens in the UK, and UK citizens in the EU) who stand to be affected the most – their lives in some cases shattered – as a result of the political chaos Brexit has brought upon this country.

The paper makes for grim reading. For EU citizens in the UK, ‘no deal’ would mean a shorter deadline for applications, the loss of the right to appeal against a refusal of settlement under the scheme, the introduction of a cut-off point for family members to join EU citizens with ‘settled status’ and even a lower threshold for deportation, where EU citizens have committed minor crimes. 

But a ‘no deal’ scenario does not in reality create the need for any of this. Most of the changes the policy paper advocates are a political choice and rather point to the beginnings of a ‘hostile environment’, and reverting to treating EU citizens as ‘bargaining chips’, ‘foreigners’, ‘others’. 

As to UK citizens in the EU, the policy paper is simply reduced to a declaration of understanding of the uncertainty this dispersed population would face in the event of a ‘no deal’, which comes with the admission that ‘the UK cannot act unilaterally to protect the rights of UK nationals in the EU’. 

In relation to practical matters of critical importance for the British in the EU, such as protecting past social security contributions, reciprocal healthcare arrangements and the right to bring EU and non-EU citizen family members back to the UK, the report makes the startling admission that the government is ‘exploring options’ and ‘will set out further details in due course’. Thirty months after the EU referendum, this is the frightening state of (no) planning for a ‘no deal’ Brexit.

Even in the case of the deal, serious issues remain for this dispersed population. It is unclear how the 27 member states intend to implement this agreement, and they have yet to make clear the administrative procedures British citizens already resident in their jurisdictions will need to go through in order to secure their status after transition. Simply, while currently processed as EU citizens with the right to Freedom of Movement, once EU citizenship is removed from British citizens, it is uncertain what their future legal status will be within these states, and whether they will be treated as Third Country Nationals. 

This is just the latest in what has been an interminable rollercoaster ride for these citizens. It is a reminder of the detrimental effect Brexit has already had upon them,  and the state of precariousness they’ve been facing for so long. 

Couple the above with publication of the hostile to EU citizens immigration white paper, which announces the end of free movement for them, the fact that the UK government has just dropped claims that no-deal Brexit is ‘unlikely’, and the announcementfrom the European Commission that it has started to implement its preparations for a no-deal Brexit, and the full extent of the predicament citizens affected by Brexit are faced with immediately becomes clear.

This is the nightmarish scenario citizens were reassured they would not be confronted with. ‘You can stay, and we want you to stay’, they said, but they didn’t really mean it.

Prof Dimitrios Giannoulopoulos, Inaugural Chair in Law and Director, Britain in Europethinktank; Goldsmiths, University of London

Dr Michaela Benson, Reader in Sociology and Director, Research leader for the project Brexpats: freedom of movement, citizenship and Brexit in the lives of Britons resident in the European Union; Goldsmiths, University of London

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