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.


Brits in Europe won right to vote for life in UK but questions remain

After years of campaigns and promises British citizens living abroad finally won the lifelong right to vote in UK general elections in April 2022. But campaigners say more needs to be done to allow all those Britons abroad to be able cast their votes easily.

Brits in Europe won right to vote for life in UK but questions remain

What’s in the law?

The Elections Act 2022 introduced several changes to the current legislation on electoral participation. Among these, it removed the rule by which British citizens lose their voting rights in the UK if they have lived abroad for more than 15 years

The new rules also abolished the requirement to have been previously registered in the UK electoral roll to become an overseas voter. In addition, the registration in the electoral roll will now last up to three years instead of only one year.

It is estimated that these changes could increase the number of overseas voter registrations by some 3 million. But the way new measures will be applied in practice is still to be defined.

READ ALSO: ‘Mixed feelings’ – British citizens in Europe finally get right to vote for life

Defining the practicalities

Under the new law, Britons living abroad will have to register to vote in the last place they were registered in the UK. This means that people who have never lived in the UK will be ineligible to vote, regardless of how long they have been overseas, while those who left when they were children will be able to use a parent or guardian’s address.

But given that the UK does not require residents to register with local councils, how to prove previous UK residence? “Typical documents accepted as a proof of residence are Council tax or utilities bills, but not everyone will have them or will have kept them in an international move,” says Fiona Godfrey, co-founder of the British in Europe coalition.

Ballot papers are pictured in stacks in a count centre as part of the 2019 UK general election. (Photo by ANDY BUCHANAN / AFP)

Other questions concern how people will effectively cast their ballot. UK citizens overseas will be able to vote by post or by proxy or in person at their polling station if they are in the UK at the time of the election. However, few people are likely to travel to the UK for an election and in the past there have problems and delays with postal voting.

The Electoral Commission has recommended that overseas electors appoint a proxy to vote on their behalf. But who could that be for people who have been away from their constituency for a long time?

New secondary legislation will have to answer these questions, defining how to be included in the electoral roll and how to exercise the voting right in practice.

According to British in Europe, the government should present draft legislation in the first half of the year so that the parliament can adopt it before summer and registrations of overseas voters can start in the autumn.

British in Europe survey

British in Europe are currently running a survey to understand the difficulties UK citizens abroad may face in the registration and voting process, as well as their intention to participate in elections.

The survey asks for instance which documents people can access to prove their previous residence in the UK, what problems they had voting in the past, and if and how they plan to vote in the future.

“We need to get an up-to-date picture of British citizens living around the world and have information to make recommendations to the government, as it prepares secondary legislation,” Godfrey said. “If millions of people will exercise their voting rights, there will be consequences for council registration offices, post office and authorities that will manage the process, among other things” she argued.

The right to vote concerns only UK parliamentary elections and national referendums, not elections in the devolved administrations of Scotland, Wales and Northern Ireland, or at local level.

The survey is open to UK citizens living anywhere in the world and is available at this link.