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

The battle to protect the futures of Britons against the impact of a no-deal Brexit achieved a "historic" victory this week when MPs forced PM Theresa May to seek a deal with Brussels to ring-fence their rights. So what happens now?

What happens next in the fight to protect rights of Britons in Europe?
Is it actually possible to change the negotiating mandate? Photo: AFP

Campaigners were celebrating victory on Wednesday night when the so-called Costa Amendment, named after Conservative MP Alberto Costa, was adopted by the British parliament with the government's support.

The amendment, which had the support of both Leave and Remain-supporting MPs cost Costa his job in the government but was warmly welcomed by campaign groups such as British in Europe.

The amendment forces British Prime Minister Theresa May to seek a deal with the EU, at the earliest possible opportunity, to ring-fence the citizens' rights part of the Withdrawal Agreement before Brexit Day – currently March 29th.

Ring-fencing citizens' rights is something campaigners have long called for given the possibility of Britain crashing out of the EU without a deal and the impact that would have on the futures of British immigrants throughout the EU, whose existing rights would be lost immediately unless countries decide to act.

But what does the result of the amendment mean in reality?

The Conservative government, despite supporting the bill, were doubtful that they could persuade the EU to ring-fence rights.

On Tuesday Theresa May suggested the EU “did not have the legal authority to do a separate deal on citizens' rights without a new mandate”.
However, the3million group, which campaigns for the rights of EU citizens in the UK, say their own legal experts suggest she is wrong.
Speaking on Wednesday, government minister David Lidington said the EU had previously made it clear that it would not allow just the citizens' rights part of the Withdrawal Agreement to stand on its own.
But he says the government will now take it up with Brussels and see if they can be persuaded to change position.
On Thursday the European Commission suggested they would not be prepared to negotiate ring-fencing, however campaigners believe that stance was inevitable and not overly significant.
So what happens now?

Kalba Meadows from British in Europe (BiE) and Remain in France Together (RIFT) explains: “The amendment requires Theresa May to formally approach the European Council – the EU27 leaders – to request that Part 2 of the Withdrawal Agreement (the part that covers citizens' rights) be implemented under Article 50 even if there is no deal on the entire agreement.”

“To be more precise: what the European Council will be asked to do is to change their negotiating mandate – that set out in the European Council Guidelines of 29 April 2017, setting out the mandate for the Commission which said that 'nothing is agreed until everything is agreed'.”

BiE's Meadows says it's essential that be done before the Article 50 expires on March 29th – the date the UK is currently set to leave the EU, unless Brussels and London agree to push it back, as is expected. 

“What we're after here isn't any old agreement, but an agreement under Article 50 which becomes a legally binding international treaty.

“It's this that would give our future rights proper protection so that they wouldn't be at the vagaries of future governments in any of the EU28 countries.”

Countries across the EU have been passing laws or at least pledging to, to offer protection to British citizens in the event that Britain leaves the EU without a Withdrawal Agreement. But those laws often depend on reciprocity from the UK and in the case of France left Brits worried about being able to meet new rules on minimum income levels.

But the big question is, is it actually possible or is Theresa May right when she says the EU does not have the legal authority to change their negotiating mandate.

“British in Europe has been working hard on this with our friends the3million for a long time, and the legal minds among us are in no doubt that this is all legally possible … given the political will,” said Meadows.

British in Europe and The3Million have vowed to keep a close watch on proceedings and to pressure EU countries to back the move.

“This is the beginning of the process, not the end, and ring fencing is far from being a foregone conclusion,” said Meadows but noted that the passing of the Costa amendment was nevertheless “historic” in the nearly three-year fight for citizens' rights.

“Rarely has any amendment or clause on anything gained as much cross-party support as this one did, right from the Greens to the DUP to Labour, moderate Tory and ERG to boot. Citizens' rights are back on the agenda,” she said.

For members


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.”