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OPINION: ‘Ring-fencing citizens’ rights should be a serious consideration in case of no-deal Brexit’

As the clock ticks down to Brexit, Britain and the EU should seriously consider ensuring an agreement on reciprocal citizenship rights, regardless of whether a framework for trade and the broader relationship is reached, argues academic Michaela Benson.

Published: 26 October 2018 11:13 CEST

OPINION: 'Ring-fencing citizens' rights should be a serious consideration in case of no-deal Brexit'

Anti-Brexit protesters in Rome. Photo: Vincenzo Pinto/AFP

“There have been suggestions that citizenship rights should be ring-fenced. This should be a serious consideration in case of a no-deal Brexit,” Michaela Benson, a professor at Goldsmiths University in the UK and a sociologist investigating British communities in Europe, told The Local.

The text agreed on in March this year by the UK and the EU, known as the Withdrawal Agreement, was widely derided at the time for its watering down of citizenship rights, in particular the loss of freedom of movement for British citizens in the EU post-Brexit.

Jane Golding, chair of grassroots rights group British in Europe, noted at the time that Cheddar cheese could end up having more rights than British citizens.

Fast forward seven months and Brits in the EU and member state citizens in the UK – between 5 and 6 million people – have more to fear in what the British government continues to call “the unlikely scenario” of a no-deal Brexit.

Photo: DepositPhotos

“If the Withdrawal Agreement is ripped up, British citizens would overnight find themselves as third country nationals. That is why it is vital they demonstrate lawful residency now,” Benson told The Local.

As third party nationals they would come under the jurisdiction of the domestic migration governance regime and their migration would no longer be governed by EU law.

In such a scenario, “it would be surprising if Brits as migrants were not subjected to visas,” says Benson, “a much more complicated system.” It is also unlikely that Brits would then be afforded any special terms as third party nationals – besides those applying for specialist visas (investment, talent, student, IT etc) – as there is no legal binding for such preferential treatment.

Many Brits are racing to gain dual citizenship in their host state, or to amass the right paperwork. But as Benson notes, “seasonal workers will be hit hard” by any agreement.

“Younger, itinerant people will find themselves not covered,” adds Benson.

The Withdrawal Agreement entitles settled Brits who can prove five years of lawful residency in a host state to a residency card and at least another five years of residency in that country beyond the transition period. But the agreement so far on citizenship rights is dependent on the EU and the UK reaching a broader agreement on trade, regulation, the Irish border and many more issues.

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Photo: nelka7812/DepositPhotos

In a letter last month to the EU and UK negotiating teams, British in Europe and the 3 Million pleaded for citizenship rights to be ring-fenced.

“You jointly have it within your powers to end this nightmare immediately for over 4 million of us, by taking the true moral high ground and publicly committing to honouring these agreements on our rights – whatever the outcome of the rest of the negotiations,” states the letter.

Given the generous proclamations that both sides have made vis-a-vis maintaining the rights of their negotiating counterpart’s community, it would be farcical if some sort of arrangement were not reached. Theresa May last month in Salzburg pledged to protect the rights of the three million EU citizens in the UK, “deal or no deal.”

France’s Minister for European Affairs Nathalie Loiseau told a meeting of French citizens in the UK that her country would remain “vigilant” of its citizens’ rights.

“We will be your advocates to make them (residency conditions) as flexible, as simple and as inexpensive as the British have committed themselves to,” Loiseau told the gathering in London last month.

The UK’s Ambassador to Spain Simon Manley called on Spain to reciprocate the offer. “We hope the Spanish government will offer a guarantee like we have done,” Manley told reporters early last week, according to Spanish daily La Vanguardia.

“There is a difference between saying things about British citizens and actually reaching out to them,” says Benson, noting that many EU states are yet to publish any guidelines for resident UK citizens.

“The French government has told Brits to apply for a carte de séjour and devolved instructions to councils to issues them to British citizens. The Netherlands have also been quite proactive,” Benson told The Local.

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Photo: Leon Neal/Getty Images/AFP

Guidelines updated last week by the Dutch government encourage Brits to apply for an EU residence card, although this will expire on March 29th . “You may continue to live and work in the Netherlands after Brexit. But, this is not certain because there is no definitive agreement yet,” note those guidelines.

In many states though, a wait-and-see attitude still prevails – primarily because most countries need to know whether the Withdrawal Agreement governing future rights of citizens will take shape after March 29th or not. “We haven’t got any further on the outstanding issues. There is no solution to freedom of movement yet,” says Benson.

“The headline is still that there needs to be clear guidelines issued to British citizens and governments need to continue to issue those guidelines.”

If an agreement is reached, it could effectively create a two-tier status for Brits vis-a-vis their rights to settle in Europe.

“There is also the issue of how British citizens who have not yet exercised their treaty rights to freedom of movement will be treated in the future,” clarifies Brexit Brits Abroad’s Benson. “Citizenship rights discussions are purely about people who have already moved.”

Earlier this year, Benson co-authored a report on the challenges of getting a good deal for British citizens in Europe.

As one official cited in Next Steps: How to get a good Brexit deal for British citizens living in the EU-27 states: “We still do not know what the rules will be in the end, so we cannot answer the questions very concretely.”

That report highlighted the difficulties many Brits could face, especially in countries where registration is not mandatory, to prove lawful residence if EU countries enact “retrospective as supposed to prospective” requirements for residency post-Brexit.

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Photo: DepositPhotos

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In the early days of 2021, after the United Kingdom had left the EU and completed the final stage of Brexit, many British citizens returned to their home countries in Europe only to face a grilling at the border.

Though the Withdrawal Agreement (WA) technically guaranteed their right to live and work in the countries they’d settled in before Brexit, there was widespread confusion about these fundamental rights and many were treated like new arrivals.

Over time, the chaos at the airports subsided as border officials and airlines were given clearer guidance on the treatment of Brits. But three years later, a number of Brits who live on the continent still face problems when it comes to proving their post-Brexit rights.

This was the reason campaign group British in Europe decided to set up their new EU-funded ICE project. Starting this year in March, it aims to build valuable connections between UK citizens abroad and mentor the next generation of civil rights advocates around the continent. The acronym stands for ‘Inform, Empower, Connect’ and the project’s organisers describe it as “the first project of its kind”.

“It’s a completely innovative project – especially the fact that it’s across so many countries,” Jane Golding, chair of British in Europe and one of the project’s founders, told The Local.

Bringing together groups from 11 EU member states, the project aims to train up volunteers to understand both the Withdrawal Agreement and EU Charter of Fundamental Rights, as well as learning skills like advocacy and communication, using real-life civil rights cases that are referred to British in Europe.

“The ultimate goal is to amplify the messages across the wider group,” said Golding. “You start with the volunteers, they go back to their groups, then the people that we train, they go back and train people. Then they pass on that knowledge to the wider groups, on their Facebook accounts and through social media, and hopefully it all snowballs, not just in their countries but across the EU.”

‘Far-reaching repercussions’

So many years after Brexit, it’s hard to believe that there’s still a need for a project like ICE that empowers Brits to protect their rights. Indeed, the future of groups like British in Europe and regional groups like British in Germany and British in Spain felt uncertain just a year or two ago.

But Golding says there are still serious issues cropping up for Brits in several countries around Europe – they just have a different quality to the problems that arose at the start.

“In some ways it’s needed even more because as we predicted right at the beginning, at the first stage of implementation, you’ve got the more routine cases,” she explained.

“What we’re seeing now is not as many cases, but when the cases come up, they’re complex. They can have such far-reaching repercussions on people’s lives. And of course, memories start to fade. A lot of people think Brexit is already done, but it’s not.”

Volunteers in British in Europe ICE project

The volunteers of the British in Europe ICE project pose for a photo at the kick-off meeting in Brussels on May 21st, 2024. Photo courtesy of Jane Golding

Though the rights set out in the Withdrawal Agreement apply across the continent, different countries have taken different approaches to implementing them.

That means that while in Germany, for example, UK citizens simply had to declare that they lived in the country, people in neighbouring Denmark had to apply for their rights.

This led to a notorious situation in Denmark in which as many as 2,000 Brits were threatened with deportation after not applying in time or completing the right application process. According to Golding, this had a lot to do with the fact that people who arrived in 2020 weren’t given the same information as other UK migrants who arrived before.

In Sweden, meanwhile, the situation is still difficult for many Brits who lived there prior to Brexit.

“There have been issues with an anomalously high numbers of refusals compared to other countries, and they seem to be taking a very strict approach on late applications,” Golding explained.

Portugal has been another difficult case. Although the country opted for a declaratory system where Brits could simply exchange old residence documents for a new ID card after Brexit, reports suggest that the authorities have taken years to issue these cards, leaving many of the some 34,000 Brits in the country in limbo.

“While people are still waiting to have their status confirmed and have their card in their hand, it’s difficult to access a whole range of services, like health services, or applying for jobs or dealing with the authorities, or even going to the bank,” Golding said. “All of these problems just affect people’s lives.”

A French border guard checks a passport at the border

A French border guard checks a passport at the border. Photo by DENIS CHARLET / AFP

There are also concerns about the EU’s new exit and entry system (EES), due to come into force in October, which is based on biometric documentation.

“We still do not have clear data on how many people in declaratory countries like Germany, where it wasn’t compulsory to apply for the card, don’t actually have a card,” Golding said. “How is that going to play out if it’s a document-based digitalised system?”

A lack of support

In the immediate aftermath of Brexit, funding from the UK’s Foreign, Commonwealth and Development Office (FCDO) was still available to support NGOs in Europe helping Brits with their migration and civil rights issues. But that temporary funding soon expired, leaving groups like British in Europe largely on their own.

“The whole point is people’s lives change at very different paces,” Golding said. “And now this project is really going to start to pick up some of those cases and report on those issues, which is really crucial and exciting for the precedent that it sets, and it’s very clearly necessary still, because people don’t just sort their lives in the 18 months that the FCDO chose to supply that funding.”

This feeling of being left alone and increasingly isolated from the UK is one that many Brits in Europe have felt in the aftermath of Brexit. But the upcoming UK election on July 4th could be a game-changer.

This time, following a change in the law, Brits who have lived abroad for more than 15 years will be able to vote for the first time.

Polling station in the UK

A polling station in the UK. Photo by Elliott Stallion on Unsplash

When it comes to the election, the message from British in Europe is clear: “Make your voice count now, make your vote count, make sure you use it,” Golding said.

With the June 18th registration deadline fast approaching, BiE is advising UK citizens abroad to apply for a proxy vote as soon as possible, rather than relying on a postal vote from abroad. Since the 15-year rule was abolished on January 16th, more than 100,000 British citizens have registered to vote, according to official statistics. It is unclear how many were registered before the change in the law.

With an estimated 5.5 million Brits currently living abroad – 1.3 million of whom are in the EU – this could have a significant impact on the electoral landscape, Golding says. But most significantly, the change is creating a feeling of connection and belonging that wasn’t there before.

Nurturing this sense of belonging is one of the main goals of ICE.

With these bridges being built, British in Europe hopes to create a network of support that spans across borders.

“Now we’ve met. We’re going to meet,” said Golding. “We know we’re going to meet again in Berlin in October and then we’ll meet again in the new year in 2025 as well. It means a huge amount because even British in Europe, our steering team, we’ve only met physically three times.”

This opens up the possibility of people sharing their knowledge from country to country, Golding explained.

“There is crossover and the reassurance of having that EU wide view and knowing that you’re not alone and knowing that in this country, we managed to get this solution,” she said. “And then you can go back and say to the authorities in your country, well, in that country they did that – all of that helps. It’s really good.”

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