OPINION: Brexit and Brits in the EU – bargaining chip or afterthought?

What will happen to reciprocal arrangements between EU countries and the UK when Brits abroad are reduced to an afterthought? Laura Shields of the Liberal Democrats examines the issues faced by anxious Britons.

OPINION: Brexit and Brits in the EU - bargaining chip or afterthought?
UK flags hang across a street near the Houses of Parliament in central London after Britons voted to leave the EU. Photo: AFP

Last week the British government successfully quashed amendments to its EU withdrawal legislation that would have required it to take proactive action on the rights of British citizens living in the EU and EU nationals in the UK.

The government doesn’t want any constraints on its Brexit negotiations. Its logic is that if it acts unilaterally to guarantee the rights of 3.3 million EU nationals living in the UK then it won’t have any negotiating capital with the EU 27 over the status of us 1.3 million Brits living outside the UK.  Reciprocity is the buzzword and let’s not forget it.

As a British migrant living in Belgium I can understand the tactic but it’s more than a little dispiriting to be thought of as a bargaining chip. That said, I’m not even convinced the government does see us that way. Hell – bargaining chip?  Afterthought is more likely.

At the moment, most of the political discussion around the twinned fates of Brits in the EU and their EU counterparts is about the ‘right to reside’. This simplistic view does not fully capture the complexity of the practical challenges that Brits living in the EU will face once the UK leaves the EU and we lose our EU citizenship. 

I am not alone in this thought. A survey we (Brussels and Europe Liberal Democrats) recently did of 5,000 Brits living in the EU reflects the complexity and anxiety many here feel. It also chimes with a recent Alternative White Paper from Brits in Europe which made detailed policy recommendations to the UK government on how it could pre-emptively protect the rights of its nationals in the EU.

Contrary to the cliché, most British ‘expats’ aren’t wealthy pensioners who’ve retired to the Riviera to live it up in the sun. We heard from a 25-year-old studying in Paris who is worried what the loss of EU citizenship will mean for his job prospects in Europe.

Likewise, a woman living in Spain who is a full time carer for her son with Aspergers worries that he may lose his entitlement to PIP (Personal Independence Payments) and carers. Both are currently guaranteed by reciprocal arrangements between Spain and the UK as part of our EU membership. 

And a woman in her thirties working in Ireland is anxious about what will happen to the working rights of her non-EU husband after Brexit. At the moment, Ireland grants non-EU spouses of EU citizens the automatic right to work. But no EU citizenship, means no automatic right to work for the spouse. 

The EU Withdrawal bill has now passed to the Lords where Opposition Peers plan to re-introduce the amendments on EU and UK migrants when it has its second hearing next week. So we can expect the legislative ping pong to continue.

In the meantime, we bargaining chips can only wait and hope for a good hand.

Laura Shields is Chair of Brussels and Europe Liberal Democrats

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Is new court ruling the end for Britons fighting to remain EU citizens?

The Court of Justice of the European Union confirmed on Thursday that Brexit really does mean that Britons are no longer EU citizens. Claudia Delpero looks at whether there's any other way they can keep their rights.

Is new court ruling the end for Britons fighting to remain EU citizens?

The Court of Justice of the European Union confirmed on Thursday that Britons lost EU citizenship when the UK left the EU, on 1st February 2020. 

It is the first time the EU’s top court has rules on the matter, after a number of legal cases challenged this specific Brexit outcome. The decision also sets a precedent should other countries decide to leave the bloc in the future. 

What has the EU Court decided?

The Court of Justice decided on a case brought by a British woman living in France.

Before Brexit, she could vote and stand as a candidate in her town of residence, Thoux. But after the UK withdrawal from the EU, she was removed from the electoral roll and excluded from the municipal elections that took place in March 2020, during the transition period.  

As the mayor refused her appeal to restore the registration, she took the case to the regional court in Auch, which agreed to request an interpretation of the rules to the EU top court. 

Julien Fouchet, the barrister supporting her and several other cases on the EU citizenship of British nationals, argued that the loss of EU citizenship and voting rights was disproportionate. It would also be contrary to the EU Charter of Fundamental Rights, given that the woman also lost her voting rights in the UK, having lived abroad for more than 15 years.

Alice Bouillez, who has lived in France since 1984 and is married to a French national, could have applied for French citizenship, but did not do so because she said “this was not necessary” before Brexit and, as a former UK official, she had taken an oath of allegiance to the Queen.

On Thursday the Court of Justice announced the decision about her case. The court ruled that the “possession of the nationality of a member state is an essential condition for a person to be able to acquire and retain the status of citizen of the Union and to benefit fully from the rights attaching to that status.”

The court therefore confirmed that British nationals automatically lost their EU citizenship as a result of Brexit and, as a consequence, Britons also lost their voting and electoral rights in municipal elections in the EU (unless the country where they live set different rules). 

What is EU citizenship?

EU citizenship was introduced by the Treaty of Maastricht of 1992, when borders were opening and the bloc was integrating economically after the end of the Cold War. 

Under the treaty, every person holding the nationality of an EU member state is a citizen of the Union. EU citizenship is additional and does not replace nationality, the treaty specifies. But this creates the first form of a transnational citizenship that grants rights across borders.

EU citizens have the right to access each other’s territory, job market and services under the principle of non-discrimination. If they are economically active, they have the right to reside in other EU states and be joined by family members, access healthcare at the same conditions of nationals (for emergency treatment also when travelling temporarily), obtain social security benefits and see their professional qualifications recognised.

Beyond free movement, at the core of EU citizenship there are also political rights, such as participating in the European Parliament election, voting and standing as candidates in municipal elections when living in other EU countries, receiving consular protection from other EU states outside the EU, and taking part in European Citizens’ Initiatives asking to the EU to legislate on certain matters. 

Which EU citizenship rights have Britons lost with Brexit? 

For British citizens who were living in the EU before Brexit, the Withdrawal Agreement protects some of these rights. Britons covered by deal have their residence, access to work and education, healthcare, social security and qualifications secured, but only in the country where they were living before Brexit.

But the right to free movement in other EU states, consular protection in third countries, and the political rights attached to EU citizenship were lost, the Court confirmed. 

For British citizens in the UK, the trade and cooperation agreement has preserved some social security rights and, in theory, the possibility to have professional qualifications recognized when moving to an EU country. These provisions however lack details and may take a long time before they work in practice. 

As the “European Union” no longer features on British passports, the possibility to access EU lanes at airports to skip passport control queues has also vanished. 

“The loss of those treasured rights has been clear to those of us living in the EU from the early days of Brexit. But for Brits in the UK, the realities of life outside the EU, and the consequences of Brexit, are only just dawning. Long queues at the borders, roaming charges, obstacles to working abroad, etc. are the new reality,” said Sue Wilson, Chair of the group Remain in Spain. 

While she said the court’s decision was “no real surprise,” she argued that “this is not the Brexit the public were promised, or that the majority voted for.”

Can British citizens get some of these rights back?

Julien Fouchet was disappointed at the Court decision and promised to continue the legal fight, bringing the case at the European Court of Human Rights (which is not an EU institution). 

Other two cases on the matter of EU citizenship for British nationals are still pending at the Court of Justice of the EU. One of them aims to determine whether EU citizenship is a “fundamental status” that cannot be removed but Thursday’s decision could have already provided the answer.

Another option to reconsider some of the rights is the renegotiation of EU-UK trade agreement, when it will be reviewed in 2025. 

Meanwhile, the EU is revising the rules for non-EU citizens living in EU countries on a long-term basis, making it easier to move across borders. 

Applying for citizenship is so far the only option to regain voting rights, although not all EU countries allow dual nationality. 

Sue Wilson, who has long campaigned for the UK to stay in the EU, said: “There is only one way to restore the loss of our rights, and that’s to rejoin the single market, rejoin the customs union, and eventually, rejoin the European Union… Until that day, we will continue to be second class citizens whose rights have been diminished for the sake of an ideology.”