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On 8 February, the EU (Notification of Withdrawal) Bill passed its third reading in the House of Commons, by 494 votes to 122. MPs rejected all amendments to the 133-word bill. This piece concerns the rejection, by 332 votes to 290, of an amendment tabled by Harriet Harman, Chair of the Joint Committee on Human Rights (JCHR). This amendment was designed to ensure that post-Brexit rights of non-UK EU citizens “lawfully resident in the UK on 23 June 2016” will be guaranteed before the triggering of Article 50 and irrespective of the outcome of negotiations between the UK and EU institutions.

The Commons debate revealed little zeal among MPs for making non-UK EU citizens’ status conditional upon reciprocity, let alone desire for en masse expulsion, should negotiations fail.

Only three Tory MPs voted for the amendment, after the home secretary had sent a letter to select MPs assuring them that “nothing will change for EU citizens, whether already resident in the UK or moving from the EU, without Parliament’s approval”. The government was joined by the Democratic Unionist Party (DUP), UKIP, and six Labour MPs, including Gisela Stuart.

Stuart, former chair of ‘Vote Leave’, chaired a British Future Inquiry into ‘securing the status of EEA+ nationals in the UK’. The inquiry’s December 2016 report concluded that “retrospective changes to [EEA+ nationals’] status are unfair as [those] who have settled in the UK could legitimately expect their status to remain secure when they moved here …The Inquiry recommends, as a cut-off date, the day that Article 50 is triggered”. Notably, this is a later ‘cut-off’ date than Harman’s amendment.

The follies of the government’s reciprocity argument

There are substantive difficulties with the government’s insistence on reciprocity, as reflected in section six of its white paper. The Commons debate revealed little zeal among MPs for making non-UK EU citizens’ status conditional upon reciprocity, let alone desire for en masse expulsion, should negotiations fail.

First, the claim that the government is protecting UK citizens residing in the EU-27 by refusing to unilaterally and unconditionally give non-UK EU citizens the reassurance they seek is fanciful (I have written elsewhere about their future status). Organisations representing UK citizens resident in Germany, Gibraltar, France, Spain, Finland, and Belgium signed a joint letter to the PM urging her to unilaterally offer guarantees to non-UK EU citizens. There is no evidence of hostility against UK citizens in the EU-27, and assigning blame to EU institutions for supposedly refusing to reach a reciprocal agreement before the UK serves its Article 50 notification is a red herring.

Second, the government cannot have it both ways: if the fate of non-UK EU citizens will not depend on the outcome of the negotiations, the refusal to remove the uncertainty and to clarify the ‘cut-off’ date before negotiations commence is puzzling. The government's position as per the White Paper is that "we want to secure the status of EU citizens who are already living in the UK, and that of UK nationals in other Member States, as early as we can". The government’s insistence on reciprocity logically implies, however that, if negotiations fail, rights of non-UK EU citizens may be curtailed. This is why Liam Fox, Secretary of State for International Trade, referred to "EU nationals" as "one of our main cards" in the negotiations. In 2017, such a ‘bargaining chips’ approach is morally indefensible (see also the JCHR Report on ‘The Human Rights Implications of Brexit’  [50] and the Lords EU Committee Report on ‘Brexit: Acquired Rights’ [147]).

Third, whereas it is within the unilateral power of Westminster to secure the status and rights of non-UK EU citizens irrespective of the withdrawal agreement, reciprocity ipso facto requires agreement, and it is far from certain that it will be reached at an early stage of the negotiations. 

It bears mentioning that non-UK EU citizens (except Maltese, Cypriot, and Irish citizens), and UK citizens who have been residing abroad for more than 15 years, were not eligible to vote in the 23 June 2016 referendum, despite being (among) those most directly and adversely affected by its outcome (analysis).

The road ahead

The bill now moves to the House of Lords. A #RightToStay mass lobby of parliament, co-organised by the 3 Million and New Europeans, will take place on 20 February. This will coincide with the ‘One Day without Us’ National Day of Action and, intriguingly, with the bill’s second reading in the Lords.  

Several Peers have already tabled amendments to the bill, including in relation to non-UK EU citizens. One replicates the JCHR stipulation, whereas another extends beyond ‘rights of residence’ to include ‘other rights enjoyed by EU citizens’. The government, which does not have a majority in the Lords, issued thinly veiled threats that the future of the upper house is at risk were Peers to scupper Brexit; since securing the rights of non-UK EU nationals does not stand in the way of triggering Article 50, one remains hopeful that an amended bill will be sent back to the Commons.

This piece was originally published 14 February 2017 on the Oxford Human Rights Hub.

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