by Sose Mayilyan, PhD Student (DCU), affiliated member of the DCU Brexit Institute. 

The DCU Brexit Institute hosted an event on “Brexit, Citizens Rights and their Protection” on 5 October 2017, which was organised jointly with the European Parliament Representation in Dublin. The event addressed one of the three main issues which are currently being negotiated between the United Kingdom and the European Union: the rights of EU citizens in the UK and those of the UK citizens in the EU after the withdrawal.

The workshop was opened by a keynote speech by Bertie Ahern (former Taoiseach), in which he insisted on the importance of protecting the peace process, avoiding hardening the border, and keeping the relationship with the UK as close as possible. He then highlighted the different rights currently enjoyed by UK citizens in EU Member States and by EU citizens in the UK, which are all part of the current negotiations between London and Brussels, and the position of both the EU and the UK on them. He concluded his speech stressing the importance for Ireland to make a strong case for itself at the EU level, as its economy will suffer serious consequences from Brexit.

The panel discussing Brexit and the rights of citizens was opened by Professor Dimitry Kochenov (University of Groningen), whose research focuses, inter alia, on EU Citizenship Law. He referred to the Quality of Nationality Index, stating that nationalities have different values and state quality and nationality quality may not necessarily be on the same level. He noted that EU citizenship is one of the best statuses one could have and it has greater value than the UK citizenship separately, in so far as membership in the EU gives a large boost to the quality of any nationality. He explained that in case of a hard Brexit taking place, there will be a 30% drop in the quality of the UK citizenship, which  would be a counter-trend, as different nationalities throughout the world are improving in terms of quality (due to, for example, the establishment of visa-free travel regimes).

The panel discussion was continued by Professor Ciarán Burke (University of Jena and Law Reform Commission), whose research focuses on European constitutional and administrative law. He started out by noting that historically Britain has been very open to the idea of citizenship and has itself issued a number of categories of UK citizenship, as well as was a strong backer for the establishment of Nansen passports within the framework of the League of Nations. Nonetheless, the UK seems to be today less comfortable with such openness. Moving on to the agreement to be reached between the UK and the EU, he stated that its nature and supervision will influence the process of the withdrawal and the agreement itself is less important than its structure. He referred to two cases (CJEU, Polydor, 1982 and EFTA Court, Atli Gunnarsson, 2003) to illustrate how the interpretation of provisions with similar wording can vary. The two types agreements currently envisaged, i.e. a loose trade agreement or an EEA-type agreement, would have different consequences: the first type of agreement will remain static, unless it is renegotiated over time, and will then depend on the good will of the EU Member States, whereas the second type will be dependant of the decisions of an international court, which may develop its own interpretation of the provisions contained therein.

Afterwards Professor Brenda Daly (Dublin City University), whose research focuses on, among other things, healthcare law and employment law, discussed the social security entitlements in the context of Brexit and citizens’ rights. She pointed out that while currently within the EU system Regulation 883/2004 covers almost all of the relevant areas for social security rights, it is not certain that there will be a recognition of pension rights for EU citizens in the UK and vice versa post-Brexit. In the negotiation process, the position of the EU, according to the EU negotiation paper from 12 June 2017, is to guarantee a level of protection for EU citizens residing in the UK. The position of the United Kingdom, meanwhile, is that EU citizens residing there should reapply in order to ensure their continuous residency. She  pointed out that British Prime Minister Theresa May’s message from her recent speeches is that those EU citizens who would be contributing more to the social security systems will be treated differently. However, the language the British Government uses in the negotiations is different and the negotiations often raise more questions than provide answers, including those with regard to the exportability of social rights. On the situation between Northern Ireland and the Republic of Ireland, she noted that although the Common Trade Agreement is in place there is still an uncertainty as to how that situation will change after Brexit.

The panel discussion was continued by Pieter Cleppe (Head of the Brussels office, Open Europe). Talking about the negotiations in the current stage, he noted that the approach of the United Kingdom towards the social security rights of EU citizens would have evolved even if the UK stayed in the Union. He talked about the fact that the UK Government may not be very efficient in the negotiations and the criticism in this regard could be considered fair. Nevertheless, he believes that there is no will to abuse the authority in the Government but instead a good will is prevailing. Addressing the issues of the position of the EU in the negotiations, Mr. Cleppe noted that some of the demands put forward by the Union are too tight. For instance, having the Court of Justice of the EU as the final arbiter in case of issues in relation to the agreement to be reached between the UK and the EU is not reasonable, insofar as the UK will thus be subject to the Court without having a representative there. He pointed out that it could be likely to have a Court similar to the EFTA Court.  Addressing the situation after the transition period, he noted that the UK probably will not reach a deal giving full access to the single market. He also noted that Brexit in itself is not an anti-migration movement but primarily a will to control migration, adding that the UK would still remain sufficiently open.

A discussion guided by Dearbhail MacDonald (Irish Independent) between the speakers, as well as the audience followed with questions and answers on various issues, including the necessity of having a court to deal with the issues between the UK and the EU, the 2-year transition period and bilateral agreements which the UK can conclude with the EU Member States separately, as well as the social security rights post-Brexit (particularly, maternity leave and pay for women), possible changes in the British legal system and the drop of the quality of the British nationality after the withdrawal of the UK.

As an introduction to the last session of the event, Professor Federico Fabbrini (Dublin City Institute and Principal of the DCU Brexit Institute) pointed out that the area of citizenship encompasses a broad range of issue and therefore reaching a deal on this is vital both for the EU and the UK. Stressing the University’s values of dialogue, he then opened the debate between David Campbell Bannerman, Conservative MEPs Joint-Spokesman for International Trade and Bernard Durkan, TD, Fine Gael.

MEP David Campbell Bannerman began by asserting that the British people have made their decision and it should be respected despite the difference in viewpoints on the issues in question. He noted that this was the largest vote in UK history and expressed his belief that there is a solution to the raised questions. He brought the example of the conclusion of a trade deal with Canada, which lasted 7 years, with the actual negotiations taking 3 years only. Mr. Campbell Bannerman also pointed that although it might seem that only one deal needs to be concluded, it does not necessarily have to be one single agreement and can in fact include a number of them. He mentioned that the necessity to control migration is conditioned by the large increase in the UK population, and the post-Brexit UK’s migration policy will be country-neutral and balanced, with a more emphasis on higher earning and higher skilled labour. He also foresees having a visa system for EU citizens similar to the one in place with the USA or Australia. Talking about the transition period, he noted that the deals should be reached within the foreseen 2-year period, since the UK intends to leave before March 2019.

The debate was continued by Bernard Durkan TD, who rejected the logic of a major Member State leaving the Union for reasons of migration, as well as the wish to accept only highly skilled migrants, since low-skilled labour is also needed. He pointed out that the concept of the European Union is to bring people together, and while no one should be blamed for the results of the referendum, it is important to see that it happened on the basis of misinformation. Moreover, he believes that the State wishing to leave the EU should not be able to change the foundations of the Union. He added that it is not possible to operate on contradictions and therefore there should either be a full possibility of free travel or there should be none. In the end, he stated his belief that it will be possible to go back to Europe as it was and to put emphasis on the common things rather than differences.

The debate was followed by a discussion with the audience where issues on border control, the accession of the UK to the World Trade Organisation (WTO), as well as the post-Brexit situation between Northern Ireland and the Republic of Ireland were addressed.