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