Written evidence - British in Europe

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Written evidence submitted by British in Europe NEG0021 1. British in Europe is a coalition of 9 core groups of British citizens living in the EU27, as well as affiliated and associate groups, with a membership of around 30-35,000. There are approximately 1.2 million British in Europe. Nearly 80% are of working age and economically active across the EU27 – or younger. Nearly one third of those is between the ages of 30-49. 2. British in Europe welcomes the Committee’s continuing concern over Citizens’ Rights and is grateful for the opportunities both to put in this written submission and to provide oral evidence to the Committee. Executive Summary 3. Since the UK-EU common understanding was reached in December 2017 and the draft Withdrawal Agreement was published in March 2018, the Government’s message has been that it has delivered on its commitment to safeguard citizens’ rights. In fact, there are outstanding gaps in the political agreement reached and, in any event, this agreement is not legally binding. Thus: 

Citizens’ rights are not ‘safeguarded’;



UK citizens in the EU will lose their rights of free movement on which huge numbers depend for their livelihoods and it will not be included in the Withdrawal Agreement unless the Government officially raises this issue again now;



UK citizens returning to the UK have no clarity on whether they can return to the UK with their existing family members, whether EU or non-EU citizens;



The manner in which the rights that are provided for under the draft Withdrawal Agreement will be secured in the EU 27 is at present unclear;



The rights of students and young people have been largely overlooked.

4. In addition, these citizens now face losing all access to the democratic process in both their countries of residence and the UK. 5. Taking citizenship in the country of residence is not a panacea to solve all the issues, although many are contemplating or taking this route because they rely on EU citizenship rights, in particular free movement, for their livelihoods. Citizens’ rights not ‘safeguarded’ 6. The UK government website states, “The Prime Minister has been clear that safeguarding the rights of UK nationals in the EU and EU citizens living in the UK was her first priority for the negotiations. This is a commitment that we have delivered.” 7. As we shall show, that is simply not the case. So, while the Government and its Embassies across Europe are consistently putting out this message (as is the Commission’s Article 50 Task Force), we particularly welcome the view expressed in the Committee’s Fifth Report that, “statements from the Government and European Commission to the effect that the draft Withdrawal Agreement’s citizens’ rights chapter is concluded has led to uncertainty for UK and EU citizens.” 8. The draft Withdrawal Agreement only confirms most (but by no means all) rights in the country of residence or work. The rights whose removal really concern UK citizens in the

EU are (i) freedom of movement, which includes (ii) our present unfettered right to return to the UK with our spouse and family members if we have exercised our rights of free movement, and (iii) our existing residence rights, which are to be replaced in some, as yet unknown, countries with a UK-style application for a new “settled status”, rather than simply confirmed by registration. Removal of the right of free movement 9. Under the draft agreement published in March, UK citizens in the EU will lose their existing rights under EU law to move outside the State they are living in on 31.12.20, to work outside the state they are living or working in on that day, and to provide crossborder services whether by physically travelling cross-border or by providing a remote service, e.g. consultancy over the internet1. 10. Many UK citizens who moved to EU27 countries, particularly families of working age, did so in the reasonable expectation that they would not be confined to one country but would be able to move, work and provide services across national boundaries. We could cite many examples but take an IT contractor, who has worked in various EU 27 countries on fixed term contracts for a decade: on 31.12.20 s/he is on a 2-year contract in a country where similar opportunities are few either because the country is small or because unemployment there is high. When that person moved to another EU country in the past, they would, on the expiry of a contract, have been able to find new work in any one of 28 different countries, but now that course is no longer to be open. Or take an independent consultant working on a freelance basis for a company in one EU country but sent regularly on a series of short-term assignments across the EU – without free movement and automatic rights to move and work in other EU countries, how will she continue to work as she has in the past? 11. How has this come about? Needlessly, according to our information from high level contacts within the European institutions. 12. In the September 2017 round of negotiations the UK offered EU citizens with a right of permanent residence in the UK a guaranteed right of return if they moved away in exchange for UK citizens in the EU having continued free movement2. That was neither accepted nor finally rejected at the time.3 13. In December, free movement was one of the issues said to be for further discussion but outside the EU mandate at that stage.4 The European Parliament made it clear then, and again in March, that it will not approve the Agreement unless free movement continues. 14. The first draft agreement produced by the Commission at the end of February included an Art. 32 which expressly ruled out freedom of movement and related economic rights for UK citizens in the EU. That was then removed because it was seen as one-sided and 1 Some people may be able to take advantage of EU schemes designed for third country nationals, but these schemes

contain a mish-mash of rights, and are at their weakest where they will most be needed for UK citizens after Brexit – see Securing Citizens’ Rights under Article 50, British in Europe and the3million Jan. 2018 pp.16ff. 2 This of course squares the freedom of movement circle by giving EU citizens a reciprocal right of free movement throughout the 28 countries. Notably, of course, it cannot lead to a flood of further immigration: it simply prevents people from losing existing

rights if they spend a period abroad. Joint Technical Note 28.9.17, para. 23. 4 Joint Technical Note 8.12.17 para. 58. 3

because it was legally unnecessary and did not change the substance of the draft agreement since nothing in the agreement conferred such rights. 15. British in Europe has asked both sides what further discussions there were after December. It seems that a UK official may have raised the matter briefly with his opposite number but it is equally clear that the UK’s principal negotiators, whether ministerial or civil servant, did not raise the issue officially at all, to the considerable surprise of the EU. 16. British in Europe has been told by the same sources that the EU 27 do not have a red line over this issue, and is open to discussing it. 17. The ability to work is critical to UK citizens in the EU27. Official statistics published by the Office for National Statistics (ONS) show that 79% of them are under pension age. British in Europe carried out an online survey of its members to find out how much freedom of movement mattered to them. A copy of the resulting report has been provided to the Committee5. Over 3,000 people completed the survey over a period of about 11 days. 58% of the Respondents said they would be affected by a loss of freedom of movement, more said they might be, and 42% said that their children would be affected. Of those who said they would be affected, over half were currently working in one or more other EU27 countries and nearly a quarter were currently providing crossborder services. 18. It would be a tragedy worthy of Shakespeare if this right, so vital for many UK citizens living in the EU, were lost simply because each side was waiting for the other to raise it. Our view is that the only way to ensure that the issue is back on the agenda for the Withdrawal Agreement is for the Prime Minister herself to take the initiative and raise it unequivocally with her opposite number and that the UK government owes a duty to its citizens to do so. We would urge the members of the Exiting the EU Committee to call upon the government to confirm that this issue will be raised officially again and within the scope of the Withdrawal Agreement, not the future EU/UK relationship. 19. It is not enough for the Government to express optimism about the possibility of everyone having free movement in the future relationship. Thousands of citizens of this country living in EU27 countries need free movement to be guaranteed and to continue now if they are to be able to feed their families. Both sides have paid lip-service to the notion that their citizens who had moved across Channel were a special case, precisely because they had based their lives on the present rules. Free movement is no more and no less than an essential one of those rules. 20. There seems to be no logical or legal reason why some rights that we – UK citizens in the EU and EU citizens in the UK - have had can be confirmed and others cannot. And quite simply, it will just mean endless court cases as the UK and EU grapple with multiple layers of legislation applicable to the hybrid position of what is, after all, a finite group of people in the UK and the EU 27. 21. We note that there are other rights, linked in some sense to free movement, that have not been secured under the draft Withdrawal Agreement, for example, the current EUwide recognition of our UK qualifications and rights of establishment as individuals. However, we do not expect any further discussion of these within the scope of the Available also at https://britishineurope.org/wp-content/uploads/2018/05/BiE-Freedom-of-Movement-Survey-ResultsFINAL.pdf 5

Withdrawal Agreement as they appear to have been firmly moved to the category of future relationship issues, even for this group of people. Family reunification for UK citizens 22. Under EU law a UK citizen who has moved to another EU country and wishes to return to the UK with their partner, even where that person is not an EU citizen, has the right to do so, and even if the national law of their country is more restrictive. In the case of an EU citizen spouse or family member, this derives from the right of free movement in the Treaty and the relevant implementing Directive, Directive 38/2004. In the case of a nonEU spouse or family law, it derives from case law. 6. After end transition period provided for in the draft Withdrawal Agreement, this will no longer apply, so UK citizens who seek to return to the UK will have to satisfy the onerous UK immigration law requirements, inter alia as to levels of earnings, if they are to keep their family together. The Withdrawal Agreement does not deal with this issue, largely because it is seen as a problem that lies outside the scope of the draft agreement – it relates to how the EU treats EU citizens and how the UK treats its own returning citizens. For UK citizens returning from the EU 27, it is therefore a matter for the Home Office alone and, if the Prime Minister’s promise quoted above is to be honoured, it should bring forward legislation to ensure that UK citizens covered by the Withdrawal Agreement continue to have an absolute right to bring their partners should they wish, or need, to return. Registration 23. The Fifth Report of the Committee also rightly highlighted another major concern for UK citizens in the EU, and that is the complete uncertainty surrounding what procedures if any they will have to undergo to protect or register their rights to live and work in the countries where they are doing so. This is partly because it was not until last December that the negotiators agreed at the last minute that EU27 States should be able to opt out of the existing system. Either they could retain the existing EU registration scheme under Directive 2004/38 (which is declaratory and registration simply confirms existing rights) or they could adopt a new scheme advocated by the UK, whereby citizens would have to apply for a new status, the “constitutive” system, which until that point in time the EU had vigorously opposed. Under the new scheme all those covered by the draft Withdrawal Agreement would have to apply in order to secure their rights under the draft (“settled status” in the UK), rather than simply going through a process of recognition of their existing rights. 24. British in Europe has argued throughout that the UK is wrong not simply to recognise the existing rights of EU citizens already here, but accepts that in the case of the UK some form of registration scheme to confirm those rights for EU citizens is necessary since there has not been one in the past. In the EU most countries have registered EU citizens under the rules set out in Directive 2004/38, and for the few which have not (notably France) the Directive is there with an adequate set of rules for them to do so. There is therefore no need for a new set of rules. Moreover, the option to operate either the Directive system or a new UK-style system, which was clear in the December Joint Report, is far from clear under the March draft agreement which devotes over 3 pages to that new system and has no more than a passing mention of the Directive system. It is therefore no surprise that EU27 Member States have been left in a state of great 6

R v IAT and Surinder Singh ex p Home Secretary, ECJ No. C-370/90, 7.7.1992.

confusion. This has not been helped by the UK government (for example by the Home Secretary in his recent letter to Guy Verhofstadt, MEP) asking the EU 27 what systems they are planning to put in place, rather than asking the more pertinent questions: how are existing systems going to be extended to cover UKinEU where that is the choice made by the EU 27 country and in the few cases where an EU 27 country does not yet have a system, which option is it going to choose and how will it implement the registration system? 25. It was not until May 25th that the Commission convened a meeting of EU27 countries with a view to explaining the options to them and asking them which system they would adopt. No official report of the outcome of the meeting is available, but there have been leaks to the effect that the majority would go for the Directive option but up to 10 States want to introduce a UK-style scheme, with Germany potentially leaning that way, no clear information from France, and Spain said to be undecided. 26. The requirement for UK citizens in the EU to establish all over again their rights to live in their homes is a major source of worry, particularly to elderly people, the self-employed, those on low incomes or welfare benefits, non-economically active people below retirement age, such as carers to people who have lived in their host State for many years. Quite apart from the problems of finding documents from many years ago and the anxiety which not only the vulnerable are bound to feel about a process which could result in their being asked to leave their home, a new registration scheme will raise all the problems inherent in any bureaucracy as well as those peculiar to the bureaucracy of the State in question. Error is inevitable, and hardship and anxiety the inevitable consequences. 27. In May 2018 British in Europe carried out a survey of the registration procedures in 26 of the EU27 countries. Registration is not mandatory in France but is optional. Ireland was excluded because of the different arrangements in place for UK nationals) among its members. The results are still being analysed but the headline findings from the survey were: 28. A majority of respondents in 25 out of the EU26 country were happy with the registration process in their host state. The process was described as “fine” by between 50% and 100% of respondents, except in Slovakia. Croatia registered the next lowest level of satisfaction (50% reported the process as “fine”) and respondents in Latvia and Slovenia reported a 100% satisfaction rate. 29. There was a high rate of successful first registrations on entering the country. Success rates ranged from 87.4% in France where respondents voluntarily registered, to 100% in 13 countries (Bulgaria, Croatia, Denmark, Estonia, Hungary, Latvia, Lithuania, the Netherlands, Poland, Portugal, Romania, Slovakia and Slovenia). 30. According to the findings from the survey, a very low percentage of British nationals were living in EU26 countries with non-EU national family members (less than 10% in each country). However, where non-EU family nationals applied to register as the family member of a British EU citizen their applications were largely successful in a majority of countries (50-100%). 31. Applications for permanent residence (available under the 2004/38 Citizenship Directive after five years’ legal residence in an EU Member State) were less successful than initial registration applications but a majority of applications were granted in all but one

Member State for which responses were given. Acceptance rates ranged from 33% in Finland to 100% in 7 countries (Denmark, Estonia, Malta, Poland, Portugal, Slovakia and Sweden). Applications for permanent residence by non-EU family members of UK nationals were also successful in a majority of cases in every EU26 country for which data is available. 32. The cost of making an application was generally €50 or less, including travel and other non-administrative costs for a majority of applicants. Only three countries for which responses were given to this question reported costs above €50 for a majority of respondents (Finland, the Netherlands and Romania). 33. The conclusion to be drawn from this survey is that for the majority of respondents the registration systems in their host countries are working adequately to very well. British in Europe takes the view that “if it ain’t broke, don’t fix it.” We see no reason to abandon the current declaratory system and we are making representations to this effect to our host countries and MEPs. 34. Whilst if the UK were to press EU States not to adopt its own scheme it would be met with a hollow laugh, it must: 

seek confirmation from all EU 27 countries on which system is to be adopted – continue the current declaratory system or introduce a new constitutive application system - without further delay;



monitor that whatever system is adopted in the EU 27 or individual countries is as user-friendly as possible (as required by the Agreement);



check that EU governments bringing in a new scheme are sufficiently advanced in their preparations to process all applications; and



guarantee that its Embassies and Consulates are given sufficient extra finance to provide a comprehensive service of support to its nationals unwittingly caught up in Brexit (currently five citizens’ rights officers are being appointed across the EU 27 but the scale of the support needed will require far more dedicated staff than this across the EU 27).

35. We urge members of the Exiting the EU Committee to invite the Home Secretary and the Minister for Exiting the EU to set out what is being done by the government to progress these issues. Students and young people 36. Students and young people have been largely forgotten in the discussion around citizens’ rights and Brexit. There are many issues of concern and British in Europe would like to highlight three: 37. The impact that leaving the EU will have on issues such as cross-border child custody agreements and arrangements. This is a complex area and we would draw the attention of the Committee to the discussions and proposed solutions on this topic in the October 2017 report from the Family Law Bar Association et al.7 38. The rights of young British students currently living with their UK parents in an EU27 country to study in the UK or another EU Member State beyond their country of 7

http://www.resolution.org.uk/site_content_files/files/brexit_and_family_law.pdf

residence. The withdrawal Agreement provides that UK students will be able to study in their home state of residence on equal terms and conditions with nationals of that state. It is, however, silent as to whether they will be entitled to study in another EU27 Member State other than as an international student. 39. We also have no information from the Department of Education or any of the devolved administrations as to how they intend to treat British students living in the EU27 beyond the transition period. Access to UK university courses on home fee rates and to student loans for the duration of their course has been guaranteed for entry in the 2018-2019 academic year but we have no information beyond that date. 40. British in Europe has repeatedly asked for a guarantee from the UK government that British students will be treated as home students for fee and student loan purposes once we have left the EU but to date no such guarantee has been forthcoming. This is regrettable and short sighted. British nationals living in the EU want to attend UK universities but not as international students. They are well-educated and multilingual. They will be an essential resource for Global Britain but they will not and indeed cannot pay international fees. If they are forced to forgo a university education in the UK they and the UK will lose out. All four capitals should rethink their position on this point and let British students know that they will be welcomed and valued on the same terms as any other UK national resident in the UK. 41. The free movement rights of British students who leave their host state to study in another EU27 country or the UK. We have a number of cases where the residence rights of students studying outside their host state is unclear. To give you an example: A British student living in France moves to the Netherlands to study in September 2018. She registers for a three year course and becomes resident in the Netherlands. After Brexit, she will be covered by the Withdrawal Agreement as she is living in the Netherlands. But if free movement rights for UK citizens in the EU are not included in the final Withdrawal Agreement, she may not have the right to return to live in France with her parents and younger siblings when her course ends in July 2021 unless she can show that she had acquired permanent residence in France prior to end transition. She will only be able to live and work in the Netherlands (or the UK). At the moment, she cannot secure her EU citizenship and the option of moving back to France by taking out Dutch citizenship without renouncing her UK nationality, and she would not qualify after only three years’ residence in any event. British students with family in the EU27 who have not been able to acquire the nationality of their host state before moving to the UK to study who are resident in the UK at the time of Brexit or the end of the transition period will potentially be similarly stranded if they had not acquired permanent residence. 42. We would urge the Committee to raise these issues with the relevant Ministers, given that the focus on them has been limited.

POSTSCRIPT: Votes for Life 43. We would like to make a couple of comments about the right to votes for life for all British citizens in the context of citizens’ rights and the UK/EU negotiations. 44. More than 60%8 of those British citizens in the EU 27 are estimated to have been unable to vote in the EU Referendum, despite being directly affected both personally and professionally. A similar percentage of the total 4.9 million British citizens living outside the UK globally (the largest diaspora of any EU country) are estimated to have been unable to vote. 45. This is despite a number of promises by the current government to enact a bill to reenfranchise this group – in the 2015 Conservative manifesto, in the Queen’s Speech in 2015, and subsequently at the most recent General Election. 46. Those in the EU 27 will now lose their voices. In addition to having lost our voting rights in the UK, all of us will lose the right to vote in European Parliament elections unless we are able and willing to naturalise in our host state. The right to vote and stand as a candidate in local elections is a matter of national law. To our knowledge, nine EU member states allow third country nationals to vote in local elections but the majority do not. British in Europe were invited to address the Brexit committee of the French Assemblée Nationale in February 2018. Voting rights came up at that hearing and French MPs were adamant that as third country nationals we would lose the right to vote in French local elections. This is a matter of concern as in France (and Spain) there are hundreds of local councillors who are British citizens. We do not know whether they will have to resign but we imagine that they will. Stripping a citizen of the right to vote is a decision that is usually only taken in the severest of circumstances, such as the imposition of a custodial sentence and the European Court of Human Rights has repeatedly ruled that even in that eventuality, any such measure should be proportionate.9 We would argue that stripping UK nationals in the EU27 and EU27 nationals in the UK of their local election voting rights is manifestly disproportionate. 47. There is a private members bill before Parliament currently, which has passed second reading on Feb 23 yet even now no date has been fixed for the Committee stage. This extraordinary delay dating back to 2015 is a clear sign that the Government has no real desire to ensure that this group is re-enfranchised in the event of an early election. This has to be remedied and this bill needs to move swiftly through Parliament. We would urge members of the Committee to support this. POSTSCRIPT (2) Naturalisation in our host countries 48. The final question asked in our survey on registration concerned intentions of British nationals living in the EU27 to seek citizenship of their host countries (or another EU27 Member State). In seven countries (Belgium, Finland, Germany, Luxembourg, Hungary, Poland and Sweden) the majority of respondents indicated that they were intending to 8 This estimate is based on that given by Chris Skidmore, Under Secretary Cabinet Office to Cat Smith MP in response to her question on 21 February 2017 as regards how many overseas voters would be re-enfranchised were the 15-year rule to be repealed. 9

Hirst v United Kingdom (no.2), European Court of Human Rights, [GC], no. 74025/01, ECHR 2005-IX

take out citizenship. There was a majority of yes and undecided combined answers in another 11 countries (Austria, Cyprus, France, Greece, Italy, Malta, Czech Republic, Denmark, the Netherlands, Portugal and Spain). Three countries reported 100% undecided (Slovakia, Slovenia and Bulgaria). Lithuania and Latvia had a 100% response rate of “no” and Estonia was split between undecided and no (none of these three countries permit dual citizenship). 49. It is remarkable that respondents in countries such as Austria, and Spain which do not allow dual citizenship, or only allow it under narrow exceptions (the Netherlands) and where they would be required to renounce their UK citizenship reported a majority of yes or undecided answers. Respondents in Greece were also a narrow majority of yes and undecided, which is striking given that Greece stopped accepting almost all requests for naturalisation in 2014. In Luxembourg 86% of respondents indicated that they are intending to take Luxembourgish citizenship when they can – only 3.9% said they would not do so. 50. And this is the case although taking citizenship in the country of residence is not a panacea for all of the issues faced by British nationals in the EU 27. For example, taking citizenship does not remove the problem that our qualifications will not be recognised across the EU 27. 51. These figures emphasise the fundamental importance of EU citizenship rights and in particular free movement for British nationals in the EU27. We need them, especially free movement, to continue earning a living and to maintain family ties across the EU and it would seem that we are willing to take extraordinary steps to secure them, even when it would cut us off from our country of origin. No British national should be forced into this situation but we feel that in some instances they will be because of Brexit. We also note in passing the recently reported decision of the Home Office to increase the processing fees associated with a renunciation of British citizenship where that should become necessary. 10 This would seem to be a particularly egregious case of kicking UK nationals whilst they are down and we would urge the members of the Exiting the EU Committee to invite the Home Secretary to review this decision.

June 2018

10 The Independent 29 May 2018 https://www.independent.co.uk/news/uk/politics/brexit-latest-uk-citizenship-eunationality-foreign-nationals-passport-countries-a8369706.html