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.
1/5 Following the House of Commons unanimous support for my amendment seeking to protect the rights of millions of UK citizens in the EU and EU citizens in the UK, my letter to European Council President @eucopresident. #CostaAmendment pic.twitter.com/IX8K7QAKvN— Alberto Costa MP (@AlbertoCostaMP) March 1, 2019
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.
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.
Now that the @AlbertoCostaMP amendment has passed: is a ring fenced agreement on the rights of @the3million and @BritishInEurope feasible, and what would it look like?— Steve Peers (@StevePeers) February 27, 2019
My earlier blog post, with a proposed text: https://t.co/tYuvccXxnA pic.twitter.com/kbDzTRh50E
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.