In the early hours of this morning the British government and European Commission agreed, to much media fanfare, a joint report on Brexit negotiations. The Commission will now recommend to the European Council – the 27 national leaders – that it should sign off on the deal. A conclusion at the Council’s summit next week that the report represents “sufficient progress” on the terms of divorce would allow the Brexit negotiations to proceed to discussions of the future relationship.
The rights of EU citizens in the UK, as well as UK citizens abroad, is one of the main aspects of the deal agreed today. An accompanying joint technical note, earlier versions of which have been analysed on Free Movement, fleshes out some of the details. The parties also cite a third document, on the nuts and bolts of registering for the rights guaranteed by the agreement, which was published last month.
Outstanding points of disagreement before today included family reunion rights and the role played by the Court of Justice of the European Union in overseeing the deal. In both those cases, there has been a compromise.
More generous EU law reunion rights apply to family members so long as they were in the relationship on Brexit day.
5 'Core' family (spouse, registered partner, kids, parents) covered *if related on Brexit Day* (buy those rings) – although children covered even if born after (you can keep buying condoms)
— Steve Peers (@StevePeers) December 8, 2017
The European Commission, though, thinks that future partners should also be covered. There may yet be a row about that.
Look at this. The row over 'third country' spouses is kicked to phase two…but the Commission is naked over how it will apply linkage/leverage to get UK to cave. 2/3 pic.twitter.com/a3HoGJ9fTJ
— Peter Foster (@pmdfoster) December 8, 2017
British courts and tribunals will be able to
ask the CJEU questions of interpretation of those rights where they consider that a CJEU ruling on the question is necessary for the UK court or tribunal to be able to give judgment in a case before it.
The government insists that only two or three cases a year will reach the CJEU this way. This is plausible given that UK references on citizens’ rights issues are only two a year at present, according to research by the Institute for Government.
And, in a sop to Brexiteers obsessed with the Luxembourg court, this referral mechanism will not last forever:
This mechanism should be available for UK courts or tribunals for litigation brought within 8 years from the date of application of the citizens’ rights Part.
Each side will be able to intervene in citizens’ rights cases in the court of the other.
Professor Catherine Barnard says that the combined effect of these provisions is that “the UK’s red line over the Court of Justice (CJEU) has turned pink”. This is in marked contrast to the position a few months ago.
Initial reaction from campaigners to the overall package has been mixed:
Citizens' rights deal: my initial thoughts. Good news: goes a long way to resolving uncertainty, preserves most (not all) family rights. But more detail still to be sorted. pic.twitter.com/lZNlpHK6Ao
— Jonathan Portes (@jdportes) December 8, 2017
The verdict is not out on this. First browse through by our law experts suggests that "will enjoy same rights as they do now" seems to bend the truth to breaking point. https://t.co/pTU30DDMs0
— the3million (@The3Million) December 8, 2017
"This deal is even worse than we expected. After 18 months of wrangling the UK and EU have sold 4.5 mn people down the river in a grubby bargain that will have a severe impact on ordinary people’s ability to live their lives as we do now."
— British in Europe (@BritishInEurope) December 8, 2017
This deal, even if agreed by the European Council next week, will still need to be finalised and implemented. There is some way to go yet before it becomes tangible for ordinary citizens, but the parameters of citizens’ rights are now firmly in place and unlikely to change significantly.