Ring fence guarantee for EU citizens and UK citizens

Letter to the Editor of "Mail on Sunday"

I hope that your readers who have been overwhelmed with information on the snap so-called "Brexit election" in the last few days will spare a thought for the front line victims of the Brexit decision, namely 2.9 million EU citizens left stranded in this country with their families, uncertain of their prospects and unable to vote in this election which decides their future.
As Theresa May had failed to give them any guarantee about their right to stay, the matter is likely to be dragged out for the next 2 years in negotiations with the EU.
Could not each major party make a statement now, reinforced by inclusion in their manifesto, that all EU citizens currently here under Treaty rules should be allowed to retain their acquired rights to live and work here and that any early agreement on that with EU negotiators should be guaranteed permanently, ring-fenced and put into law immediately, so that the rights of both EU citizens here and UK citizens abroad will not be jeopardized should later negotiations fail.
This is vital for the future of these hard working UK taxpayers with EU nationality whose presence is vital to the economic prosperity, cultural richness and provision of essential services such as the NHS and social care in this country.
Wiktor Moszczynski
Published in "Mail on Sunday" 23 April 2017

What About EU citizens in Brexit election?

Letter published in "i" - 20th April 2017

From Wiktor Moszczynski, 48 Inglis Road, London W5 3RW, tel. 07786471833

Letter to Mr Oliver Duff, Editor of "i"

So we have 11 pages of Brexit coverage following your headline "stunned Britain heads to the polls"
(19/04/2017) but who speaks for the equally stunned and disenfranchised (again) 3 million EU citizens with their families left stranded here with their future still unresolved?

Surely now is the moment for all major parties to declare jointly that the future of the EU citizens currently in this country can be guaranteed. Such a declaration would be hailed by UK business and have a positive influence on the final draft of the negotiation strategy waiting for finalizing next week by the European Parliament and the European Council.
Yours sincerely
Wiktor Moszczynski

EU and post-Brexit UK – A New Partnership

It is important to set a new common goal for both the UK and EU negotiators that would draw each side away from the current endgame mentality of ensuring the best terms for one party and the worst for the other side. Currently both sides are dominated by a negative attitude. Despite declarations to the contrary, the EU side is guided by its claim that the UK must get a worse deal than it had had hitherto as an EU member and that there will be no “cherry-picking” of what it wants most from the single market. The UK government in turn is acting defiant in face of EU negotiating terms, still anxious to keep the more single-minded hard Brexit lobby onside. These negative approaches feed off each other.
The UK attitude springs from the unclear “democratic mandate” of the present British Prime Minister who has not won an electoral mandate for herself or her government and is being steered (some say “spooked”) by the need to try and interpret the referendum result while hide under the empty mantra “Brexit is Brexit”.
Initially the EU negotiators’ mandate was not based on a direct electoral mandate either. It was based on an agreement between the EU heads of government, largely under an agenda hammered out by the EU Commission and the German government. It was next endorsed and even upgraded in severity by the European Parliament, but not by the national parliaments of the EU.
Both such hastily concocted mandates could crumble under pressure, the UK one from divisions in the ruling Conservative Party over the conduct of negotiations, the other from divisions between EU member countries and possible upsets in the coming French and German elections, as well as the unresolved euro and refugee crises.
It does not help that neither side has sufficient trust in the good will of the other. The Gibraltar row was but a more extreme example of this distrust. It gives a hint of the tide of nationalism that lurks between the surface ready to emerge whenever either negotiating party decides to rely too much on negative emotions rather than common sense and mutual interest of both the EU and the UK. The requirement by the EU side that Spain would have a veto over any final deal has even caused former leading UK politicians to raise the spectre of the Falklands War. On the British side, constant blunders by the Home Office in its reinterpretation of “automatic right” to permanent residence for EU citizens and their families, as well as flippant comments by foreign secretary Boris Johnson and the provocative jeers of Nigel Farage in the European Parliament, all served initially to anger public opinion in the EU media and provoke the EU to set a tougher stance. Comments in the past from EU Commission President, Jean-Claude Juncker, and his undiplomatic chief of staff Martin Selmayr, have also been unhelpful.
Some EU negotiating initiatives seem almost vindictive, such as the immediate transfer of EU agencies, the European Medicines Agency and the European Banking Agency, from London to other European capitals, as well as the current threat of punitive sanctions against UK companies bidding to participate in the Galileo satellite navigation project. The ultimate negotiating goal for both parties remains worlds apart and in the case of the EU it is primarily expressed in terms of the how much more damaging to the UK the future relationship with the single market must be. It is welcome news that Donald Tusk intends to meet Theresa May regularly in order to retain an atmosphere of trust and reduce tension over the more contentious issues.
The EU negotiators are adamant that the issue of EU citizens and the 60 billion euro exit bill must be settled first and that the future trade deal which the UK wants can only be discussed after the legal and financial repercussions of the separation have been resolved. These tough EU negotiating guidelines are likely to be finalized and approved at an EU summit in Brussels on April 29th. The EU has the stronger leverage because it now controls the timetable for the next 2 years and possibly for longer after that. The only leverage left to the UK is a threat to end all negotiations without any agreement which would be worse for UK than for EU, even though many EU manufacturers and exporters like the German car industry would suffer too. David Davis has admitted that if the UK leaves the customs union with no deal then the UK dairy and meat products could face levies between 30% and 40% while UK car makers like Jaguar will face 10% tariffs on their exports to the EU.
It is worth remembering that 44% of UK exports in goods and services go to other countries in the EU (£240bln out of £550bln in total), while the UK imports £290bln from the other EU countries. In fact the UK is the largest single export market for the EU’s goods and services as a whole (16.9%), just ahead of the USA (16.5%). Commercially, both have much to lose. In the meantime, the UK has been seeking better trading relations with the white Commonwealth countries, the USA, India, China, Japan, Saudi Arabia, Jordan, Turkey and the Philippines, none of which could match the EU in commercial importance and many of which would entail closer cooperation with authoritarian countries that do not share UK and EU democratic values.
The problem for the UK government is that it has no clear electoral mandate for the specific kind of Brexit deal it should be striving for. The UK public still does not have a clear view of the implications of Brexit, except in the broadest terms, and the government has not clarified this to them. There has been no general election since the referendum vote on June 23rd last year and so no opportunity for the government to spell out clearly to the public the costs and losses of leaving the single market. The minor parties, such as the SNP, the Liberal Democrats and the Greens, are clear in their intention to either reverse the Brexit vote or to settle for the closest possible relationship to the single market. Unfortunately, both the membership and the electorate of the two major parties, the Conservative Party and the Labour Party, has no such clear Brexit road-map. This can only be achieved if Parliament chooses to vote out the current parliament by a 2/3 majority and call for a new general election with a coherent platform of a New Partnership between a future post-Brexit UK and the EU. This could be offered to the electorate by either the Conservatives or Labour, or both and it would have the advantage of uniting each party internally and offering a realistic option to the country.
The New Partnership would be based on something that matters to both parties, namely sustaining good trading relations between the UK and EU with open access to each other’s markets. So, it would be vital for both sides to retain tariff free access to the single market provided the UK can satisfy the EU’s current demand that it can still offer free movement in capital, goods, services and labour. In the matter of free movement of labour, the one truly contentious issue, the UK should consider still offering free access for EU citizens, but kept under control with limited or no access to out of work benefits for the first 3 years of their paid employment and no access to in work benefits until the EU citizen has applied successfully for indefinite leave to remain after 5 years. The issue of immigration to most of the UK electorate was a matter of “control” rather than an end to immigration as such. David Cameron’s earlier negotiations before the referendum showed it was possible to gain some leeway in this direction from the EU and that was at a time when no EU leader took Brexit seriously. Now that all parties are clear that Brexit is upon us and with the proviso that an element of trust between EU and UK negotiators is restored, then the EU may well want to show flexibility over benefits with the UK. Even the seemingly intransigent European Parliament is aware of the need to have a public debate in the course of these negotiations on the future of the European Union and has already made clear in its Draft Resolution on Negotiations with the UK that Brexit should “compel the EU-27 and the Union institutions to better address the current challenges and to reflect on their future and on their efforts to make the European project more effective, more democratic, and closer to their citizens”.
The New Partnership should be open to all countries in the EEA, including Switzerland, Norway, Iceland and Lichtenstein, as well as to the UK and the EU countries and could be supervised by a Consultative UK/EEA Council. The non-EU countries within the EEA will be free to decide whether and when this free movement of labour will apply to future countries applying for EU membership.
In this New Partnership, the UK will be allowed to exclude agriculture and fisheries from joint UK/EEA policy, will not be obliged to subscribe to any new EU legislation and be free to amend current EU legislation presently included in the Great Repeal Bill. The main concern for the EU negotiators on this matter would be the need for the UK to retain “a level playing field” in terms of taxes and no dumping of subsidized exports. The UK would also be free to make new international trade deals outside of the EU after the Brexit separation deal is concluded, but these will be the subject of consultation with the UK/EEA Consultative Council.
In order to build early EU confidence in the UK’s proposed New Partnership with the EEA, the UK should be ready to take the first step on the issue on which all 27 EU countries are most sensitive – their own citizens in the UK. The UK could make a unilateral declaration guaranteeing the right to stay and retain acquired rights for all EU citizens in the UK, or who have residences in the UK, valid at least up to and including the date the declaration is made. EU citizens could then be promptly registered and issued with appropriate special status IDs by local authorities and their pathway to eventual Indefinite Leave to Remain, and ultimately to UK British citizenship, can be retained. The EU status of permanent residence would become redundant so all those who had obtained it would automatically receive the UK equivalent status of Indefinite Leave to Remain. The question of the rights of future EU citizens coming to the UK during the negotiation period can still be a subject for further discussions with the EU. The EU negotiating position is based on similar rights being offered to UK citizens abroad to those being offered by the UK government, on the declared grounds of “reciprocity”, “continuity” and “symmetry”, so they would be obliged to make their reciprocal statements about UK citizens after the UK declaration is made. Details of the rights of newly arrived EU and UK citizens in the 2 year negotiating period and the 3 year transition period can be the subject of further separate negotiation while the UK should recognize that for the 2 year period of negotiation any new arrivals would still be able to enjoy full EU status, even if only temporarily.
The UK government should also express its readiness to try for a 3 year transitional period after the 2 year negotiating period is over and a separation deal has been reached and approved so as to give time for the trade negotiations to be completed. Even in those trade talks the main discussion will be around divergence (rather than with the convergence required in other EU treaties, such as with Canada) so the less that needs to be excluded from current trade arrangements, the more likely they will be to reach a quicker agreement. The European Parliament, which ultimately has to ratify any deal with the UK, has already conceded this 3 year transitional period, although it insists on the European Court of Justice remaining the final arbiter in that period, something which the UK government may still want to challenge, even in the New Partnership.
It would also help in mutual confidence building if the UK government should give support to other EU initiatives such as the attempted naval blockade in the southern Mediterranean and future joint declarations with EU on security, peace initiatives and aid programmes world-wide. It should also go for the widest possible cooperation on scientific research. The UK would be free however to opt in or out of common regional fund programmes, the European Space Agency, Erasmus or climate change initiatives, even if only as a third party, and the UK may well negotiate a new looser associate status with Euratom, similar to that of Switzerland.
While the proposed New Partnership may seem naïve and over optimistic in the current negative climate in which the negotiations are being approached, it is still a much better option for both sides. It will require the need for both Conservatives and Labour to face the electorate promptly with courage and honesty, recognizing the reality of Brexit but saving both the UK and the EU from its worst excesses. it will allow the vexed question of displaced EU and UK citizens to be sorted fairly and quickly; it make it easier to resolve the border issues in Ireland, Gibraltar and the British bases in Cyprus; it will conduct the financial and legal separation in good faith, and it will ensure that the final trade settlement and future relationship will still be in the interest of all parties, including all 27 countries of the EU and all 4 nations of the United Kingdom.

Wiktor Moszczynski

Can Theresa May seize the initiative on EU citizens?

If there was one common issue that united both Leave and Remain campaigners during the Brexit referendum campaign it was that, whatever the outcome, those 3.2 million EU citizens that had settled here legally in the course of the last 40 years, under Treaty rules, should be allowed to stay in the UK on the same terms as before. There was concern that a similar right should also be extended to 1.2 million UK citizens who had settled in other EU countries, but broadly public opinion and politicians of all persuasion believed that these rights should be guaranteed unilaterally. The3million group representing EU citizens in the UK lobbied parliament on this. Even representatives of British expats abroad, such as the British in Europe Coalition, called for the same. Indeed, the Parliamentary Committee for Exiting the European Union, chaired by Hilary Benn, which included prominent campaigners from both camps, concluded unanimously that the UK government should take the initiative unilaterally and immediately and ensure that any uncertainty over the future status of these citizens be confirmed by an Act of Parliament.
At the time the arguments, as laid out for instance in the letter from Polish community leaders in the parliamentary “House” magazine in December 2016, were irrefutable. There was a moral duty to honour the commitment to EU citizens who had arrived and settled here legally and had contributed more than £20bn in a 10 year period between 2001 and 2011 to the UK economy. Also, UK companies, as well as institutions such as the NHS, needed a stable environment to plan their future investment and employment policies and needed to know if their EU staff would be allowed to stay. Polish and other EU entrepreneurs, workers and their families would not feel pressurized into leaving early and uprooting their children due to economic uncertainty and the rise in hate crimes and xenophobic intimidation. Just the Polish community alone has more than 180,000 children here under the age of 14, traumatized by uncertainty over their future. An early declaration about EU citizens would also have set a positive tone for starting the EU negotiations. Last but not least, an early declaration with a clear demarcation date, would have discouraged that “surge” of new EU arrivals, which the Government feared.
Yet the Government felt unable to take this initiative, despite heaping praise on the positive role that EU citizens and their families had played in this country. They referred constantly to the fear, unsubstantiated by any concrete evidence, that the EU organizations and individual EU governments had failed to give such a commitment guaranteeing the right of UK citizens in Europe, while forgetting that it was the UK that was leaving the EU, and not the other way round. It was the decision of the UK, as a sovereign country, to leave the EU and that required that same sovereign country to take responsibility for all who were residing here legally and had been left stranded by the Brexit referendum result. No EU country had many any threat to UK citizens, unlike Dr Liam Fox’s comments about EU citizens and their children as being a “key card” in the negotiations, and many EU governments said openly that UK citizens would be safe in their country.
As Prime Minister Theresa May and the majority of the present government had voted Remain in the referendum and had not received a personal mandate to rule in an election, perhaps she and her cabinet had sought legitimacy by interpreting the result of the referendum in the most radical way possible by opting to play the role of the tough negotiator over EU citizens’ rights, rather than the diplomatic statesman.
This procrastination has its negative consequences, above all on the EU communities themselves, who feel more and more discriminated against with each month. More than a quarter of EU citizens, who had applied for permanent residence (PR) under the “automatic” 5 year residence rule, have had their applications refused. The reasons have been various. They range from the introduction of a hitherto unknown requirement for a comprehensive sickness insurance, the elimination of self-employed with irregular and therefore insufficient incomes, and the unexpected onus on all applicants to give all foreign travel details and declared income over the full period of stay in this country. Sometimes rejection of a PR application has been followed by a totally illegal demand to leave the country immediately. Such behaviour has been commented on negatively not only in the UK media, but more vociferously in the EU as well. Also in some cases banks have started to refuse loan facilities to EU citizens and to EU owned businesses while some insurance companies have been reluctant to give extended cover. For some EU citizens the situation is becoming untenable.
But it also has negative consequences for the government as well. Instead of setting the agenda on this issue with a formal guarantee of a new status for EU citizens, backed by an Act of Parliament, the Government waited to resolve the matter on a reciprocal basis before negotiations began. Now that the issue is to be broached with EU negotiators, the UK government has lost the initiative, especially in the matter of the demarcation date, and has to deal with the prospect of those rights being extended not only to those currently here but also to those arriving during the negotiations and even for a probable three years’ transition period after that. It is not clear to what extent the more radical supporters of Brexit, to whom current and future immigrations levels were a cause of major concern, would react to this state of affairs. It also staves off any certainty that EU citizens will receive this guarantee until all the negotiations are over as that will be in two years’ time at the earliest. A temporary agreement on the status of EU and UK citizens may be reached earlier and ringfenced but the EU is adamant that EU law, and therefore also the acquired rights of EU citizens, will continue in the UK until the negotiations are over, and should the negotiations fail completely, as is desired by some recalcitrant Conservative MPs and by UKIP, then even this temporary agreed package could be declared null and void.
However, it will be at least June before the negotiations really begin. In those next two months or so the UK government could still take the initiative and state clearly in Parliament that all EU citizens currently here legally, whether as employers, employees, self-employed, self-sufficient, students or genuine family dependents of the above, are given immediate right to remain here for an indefinite period and they retain the right to apply for UK citizenship as well if they fulfil the usual criteria. This should cover even those that are here for a shorter period than 5 years as they can be offered a guaranteed pathway to remain status after the 5 years are over. This would resolve the immediate dilemma of EU citizens and their employers, clarify the status of EU citizens for health authorities, schools, social services and other institutions directly affected by them, will oblige the EU negotiators to offer a similar guarantee to UK citizens abroad and have a positive impact on the tone of negotiations that follow. Local authorities who already have access to EU citizens in their area could take immediate steps to register these citizens and prevent future identity fraud. It may be that EU negotiators will still want to clarify further details and extend these rights to a broader section of later EU arrivals, but at least it would resolve the most pressing immediate problems arising from Brexit.
Currently buffeted left and right by issues such as the “alimony” payment of £50bn, the proposed Scottish referendum, the future of Northern Ireland and sabre rattling on both sides over Gibraltar, has the present Government the resolve to lift its head above the parapet on the issue of EU citizens and take steps to offer that guarantee to EU citizens which it should have agreed 6 months ago? Justice, economic necessity and common sense require that they should.
Wiktor Moszczynski 07/04/2017