‘Securing rights of Britons in Europe is legally possible, they just need to try’

The EU says it won't negotiate "mini deals" and the "contemptuous" UK government doesn't seem interested in actively pursuing the Costa Amendment. But legal experts say ring-fencing the rights of Britons in the EU is achievable if it was just made a priority.

'Securing rights of Britons in Europe is legally possible, they just need to try'
Photo: vchalup2/Depositphotos

Since June 24th 2016, British citizens in the EU have anxiously awaited news of how their future status in their host countries could change with the UK’s departure from the bloc.

Last week’s so-called Costa Amendment offered renewed hope after nearly 1,000 days in limbo. The amendment, passed by the British parliament, calls for Theresa May’s government to “seek at the earliest opportunity a joint UK-EU commitment to adopt part two of the Withdrawal Agreement.”

This would effectively mean to secure a deal with the EU to ring-fence the citizens rights of 3.6 million citizens in the UK and 1.2 million Britons residing in the EU – regardless of the outcome of ongoing negotiations and regardless of whether her deal is ratified by parliament.

In a follow-up letter to the EU institutions on March 4th, the UK’s Secretary of State for Exiting the European Union Steven Barclay suggested the UK government has taken a halfhearted approach to the Costa Amendment. 

“The Government’s position remains that the Withdrawal Agreement provides the best way of providing confidence to citizens,” wrote Barclay. “The Prime Minister made clear during her statement to the House on 26th February that the Government recognises the significant challenges related to concluding a ring-fenced agreement,” added Barclay.

READ ALSO: What happens next in the fight to protect citizens' rights?

Rights activists responded with indignation to Barclay’s lukewarm effort to negotiate an international treaty on citizens’ rights with the EU.

“It seems completely contemptuous of the Costa motion,” Jeremy Morgan QC, co-chair of British in Italy and one of the key legal experts at rights group British in Europe, told The Local. “They have been given a clear mandate by the UK parliament but they have watered it down so it doesn’t mean anything. It shows what Prime Minister May’s priorities are and citizenship rights are not one,” added Morgan.

Morgan argues that there is legal scope for such an international treaty as called for by the Costa Amendment. “Legally it is not a problem. It doesn’t say how they should reach an agreement. It just requires them to try,” says Morgan, who added that British in Europe will “be lobbying the EU very hard” in order for the idea of ring-fencing to be taken seriously.

Last week, the EU Commission said that it would not be willing to negotiate the citizens’ rights aspect of the Withdrawal Agreement separately, although that may simply have been hard talk in the ongoing negotiations and that stance was largely expected.

“The best way to protect the rights of 4.5 million citizens is through the Withdrawal Agreement,” said Commission spokeswoman Mina Andreeva. “We will not negotiate mini deals,” added Andreeva at a press conference on February 28th. The EU Commission had not responded to Barclay’s letter at the time of writing.

The EU has repeatedly asked the UK government to give a clear idea of its desires and intentions in the Brexit process. As Delia Dumaresq, co-chair of British in Italy points out: “The only thing that has the full agreement of the UK parliament is ring-fencing citizens’ rights.”

Jeremy Morgan QC, co-chair of British in Italy adds that with the right political will, and an extension to Article 50, such a treaty on citizenship rights could be achieved – and the extension could be justified to that end. The EU Council would simply need to adapt its negotiating guidelines. 

While the EU has officially said it won’t negotiate citizens rights separately on a pan-European basis, a former Commission official told The Local the most likely way the EU would agree to ring-fence citizens' rights, at least temporarily, was by simply extending Article 50 and delaying Brexit. 

“I would expect the EU to be quite sympathetic to this,” said the former Commission official, who did not want to be named.

“The EU has to be concerned with the rights of its citizens in the UK and wants to protect them.” 

But this kind of short term fix is not what campaigners for the UK citizens in the EU and EU nationals in the UK want.

“What we're after here isn't any old agreement, but an agreement under Article 50 which becomes a legally binding international treaty,” Kalba Meadows, a member of rights group British in Europe, told The Local.  

But with just three weeks to go before their lives are potentially turned upside down, some 4.5 million Britons in Europe and Europeans in the UK still don't appear to be a big enough priority for the EU or the UK.

READ MORE: What happens next in the fight to protect rights of Britons in Europe?

Member comments

Log in here to leave a comment.
Become a Member to leave a comment.


More than 200,000 Brits in Spain haven’t exchanged residency documents

A new study by Spain's Immigration Observatory has revealed that more than half of UK nationals living in Spain are yet to exchange their EU green residency documents for Withdrawal Agreement TIEs following Brexit.

More than 200,000 Brits in Spain haven't exchanged residency documents

A new study by Spain’s immigration observatory has revealed just how many Brits are yet to exchange their residency documents following Brexit.

The figures from July 2020 to June 2023 show that 159,604 UK nationals successfully exchanged their old residency documents for a TIE, the card that enshrines their residency rights as part of the Brexit Withdrawal Agreement.

This means over half of the total number of Britons in Spain – 211,274 people to be exact – have not exchanged their old EU residency residency certificate for the TIE.

According to immigration observatory data, as of December 31st 2022 there were 412,040 Britons living in Spain.

That is 4,412 more than the previous year and represents a 1 percent rise. It also includes new UK arrivals who don’t enjoy Withdrawal Agreement (WA) rights and apply like any other non-EU candidate.

Though UK nationals legally residing in Spain before the Brexit deadline are within their rights to keep their old EU green residency certificate (Certificado de Registro de Ciudadano de la Unión), both the UK and Spanish governments have for some time strongly recommended that they exchange it for the non-EU foreigner identity card, known as the TIE (Tarjeta de Identidad de Extranjero).

READ ALSO: BREXIT: How Brits in Spain can exchange a green residency document for a TIE

This card states Acuerdo Retirada UE (EU Withdrawal Agreement) and grants UK nationals who can prove they were in Spain before Brexit the same residency rights they had prior to the UK’s exit from the EU.

Only one percent of UK nationals with an EU certificado de registro who have applied to exchange it for a TIE have either had their application filed or rejected, 828 people in total. 

Fifteen percent of UK nationals in Spain who were not in possession of a green certificate but applied for a Withdrawal Agreement TIE have had their application archived or denied, 8,924 in total. However, 49,184 (85 percent) of these applicants have successfully obtained their WA TIE.

In their case, showing proof that they lived in Spain prior to the Brexit deadline has included showing payroll slips, social security registration, rental contracts and padrón town hall registration. 

Slow down in applications

Interestingly, the data also shows that after an initial surge in exchanges in the second half of 2020 when the WA TIE first became available to UK nationals, the number of Brits turning in their old residency certificates to get TIE cards has slowed down significantly since then.

As shown in the below graph from the report, after another slight peak in applications in mid-2021, TIE requests have fallen since then and since 2022 generally flatlined.

Graph by Immigration Observatory showing the monthly rate of residency document exchanges by Britons and their family members in Spain since the Withdrawal Agreement TIE first became available in July 2020.

That first period (from July to December 2020) also saw a significant number of residency authorisations granted to UK citizens who did not have the previous EU registration certificate, with a total of 32,730.

In the month of December 2020 alone, 12,269 authorisations of this type were granted, which represents 58 percent of the total number granted in that month.

Who are the Brits in Spain and where do they live?

The report also included some interesting demographic information on the types of Brits living in Spain and exchanging their residency documents.

Of the 218,540 UK nationals with a TIE issued between July 2020 to June 2023, those aged 65 and over and aged between 50 to 64 made up 34 percent and 30 percent of the total respectively.

The average age of UK nationals living in Spain is 55 years old.

Children represented only 7 percent of the total.

51 percent of TIE holders are men (110,930) and 49 percent (107,610) are women. However, in the 65 and over group 52 percent of TIE holders are men.

The 18-34 age group is more female with 52 percent of British TIE holders being women.

Staggeringly, over half (51 percent) of Britons who have exchanged their residency documents are concentrated in just three Spanish provinces: Alicante (55,028 people; 25 percent of the total), Málaga (39,522 people; 18 percent) and the Balearic Islands (16,577 people; 8 percent).

READ ALSO: BREXIT: Why UK and Spain now strongly recommend exchanging green residency document for TIE

Is it necessary to exchange my documents?

Technically speaking it isn’t as the exchange remains optional. However, both the UK and Spanish governments have strongly recommended that UK nationals residing in Spain with the old green EU residency certificate should exchange it for a TIE as soon as possible.

This is not only because the TIE enshrines the rights of UK nationals abroad under the Brexit Withdrawal Agreement, but also due to the fact that having a TIE can make many bureaucratic processes in Spain much simpler, as well as alleviating any potential travel friction on borders when travelling to and from Spain.

The TIE also has a photo on it, something the old green EU certificate did not, and it is far more durable than the flimsy paper certificates. It does have to be renewed, however, whereas the green certificate doesn’t have an expiry date.