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RIGHTS

‘Securing rights of Britons in Europe is legally possible, they just need to try’

The EU says it won't negotiate "mini deals" and the "contemptuous" UK government doesn't seem interested in actively pursuing the Costa Amendment. But legal experts say ring-fencing the rights of Britons in the EU is achievable if it was just made a priority.

'Securing rights of Britons in Europe is legally possible, they just need to try'
Photo: vchalup2/Depositphotos

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.

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.

READ ALSO: What happens next in the fight to protect citizens' rights?

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.

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.

READ MORE: What happens next in the fight to protect rights of Britons in Europe?

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BREXIT

What is the latest on Gibraltar’s Brexit status?

With 2023 approaching and negotiations between Gibraltar, the UK, EU and Spain dragging on for yet another year, what is the latest on Gibraltar and Brexit? Will they reach a deal before New Year and how could it affect life in Gibraltar and Spain?

What is the latest on Gibraltar's Brexit status?

As British politics tries to move on from Brexit, the tiny British territory at the southern tip of Spain, Gibraltar, has been stuck in political limbo since the referendum all the way back in 2016.

Gibraltar, which voted in favour of Remain during the referendum by a whopping 96 percent, was not included in the Brexit deal and has instead relied on a framework agreement made between the UK and Spain on New Year’s Eve in 2020.

After that framework was laid out, it was hoped that the various parties – that is, the Gibraltarian government, Spain, the EU, and the UK – would build on it and quickly find a wider treaty agreement establishing Gibraltar’s place on the European mainland in the post-Brexit world.

It was thought that Gibraltar could enter into a common travel area with the Schengen zone, limiting border controls and essentially creating a custom-made customs arrangement with the EU.

But since then, the negotiation process has stopped and started, with no deal being made and uncertainty dragging on through 2021.

Despite all parties still being relatively optimistic in the spring of 2022, no resolution has been found and 2023 is approaching.

Relying on the framework agreement alone, uncertainty about what exactly the rules are and how they should be implemented have caused confusion and long delays on the border.

The roadblocks

Progress in the multi-faceted negotiations to bash out a treaty and determine Gibraltar’s place in the post-Brexit world have repeatedly stumbled over the same roadblocks.

The main one is the issue of the border. Known in Spain and Gibraltar as La Línea – meaning ‘the line’ in reference to the Spanish town directly across the border, La Línea de la Concepción – the subject of the border and who exactly will patrol it (and on which side) has been a constant sticking point in negotiations.

Madrid and Brussels have approached the British government with a proposal for removing the border fence between Spain and Gibraltar in order to ease freedom of movement, Spain’s Foreign Minister José Manuel Albares said in late November 2022. There has been no immediate response from London.

The Gibraltarians refuse to accept Spanish boots on the ground and would prefer the European-wide Frontex border force. The British government feel this would be an impingement on British sovereignty. There’s also been the persistent issues of VAT and corporation tax considerations, as well as the British Navy base and how to police the waters around it.

Though there had been reports that the ongoing British driving license in Spain fiasco had been one of the reasons negotiations had stalled, the British ambassador to Spain Hugh Elliot categorically denied any connection between the issue of Gibraltar’s Brexit deal and British driving licence recognition earlier in November.

READ ALSO: CONFIRMED: Deal on UK licences in Spain agreed but still no exchange date

On different pages?

Not only do the long-standing sticking points remain, but it also seems that the various negotiating parties are on slightly different pages with regards to how exactly each seems to think the negotiations are going.

Judging by reports in the Spanish press in recent weeks, it appears that many in Spain may believe the negotiations are wrapping up and a conclusion could be found by New Year. This perception comes largely from comments made by Pascual Navarro, Spain’s State Secretary to the EU. Speaking to reporters in Brussels, Navarro claimed that negotiations have advanced so well that they were now only working ‘on the commas’ of the text – that is to say, tidying it up.

According to Gibraltar’s Chief Minister Fabian Picardo, though negotiations are ongoing, “we’re not there yet”. (Photo: JORGE GUERRERO/AFP)

“No issue that is blocked,” he said. “All of the text is on the table.” A full treaty, he suggested, could be signed “before the end of the year.”

Yet it seems the Gibraltarians don’t quite see the progress as positively as their neighbours. Last week the Gibraltar government, known as No.6, acknowledged Navarro’s optimism.

According to Gibraltar’s Chief Minister Fabian Picardo however, though negotiations are ongoing, “we’re not there yet”.

No.6 remains positive and hopes for a deal, but in recent weeks has also published technical contingency plans for businesses to prepare for what they are calling a ‘Non-Negotiated Outcome’ – effectively a ‘no-deal’ in normal Brexit jargon.

The UK, however, seem to be somewhere in the middle. Like Navarro, the British Foreign Secretary James Cleverly recently suggested at a House of Commons select committee that only “a relatively small number” of issues remain to be resolved.

However, he also acknowledged the possibility of a non-negotiated outcome. “I think it’s legitimate to look at that [planning for a non-negotiated outcome] as part of our thinking,” Mr Cleverly said. “But obviously we are trying to avoid an NNO.”

Election year

If no deal is found by New Year, that would mean that negotiations drag into 2023 – election years for both Picardo and Pedro Sánchez, Spain’s Prime Minister.

Gibraltar is expected to have elections sometime in the second-half of the year, and Sánchez has to call an election by the end of 2023.

In many ways, Spanish domestic politics has the potential to play a far greater role in Gibraltar’s fate than British politics. In fact, the shadow of Spanish politics looms over these negotiations and the future relationship between Spain and Gibraltar, the UK and Spain, and the UK and EU.

If Sánchez’s PSOE were to lose the election, which according to the latest polling data is the most probable outcome, then it would be likely that Spain’s centre-right party PP would seek to renegotiate, if not outright reject, any deal made.

READ ALSO: Who will win Spain’s 2023 election – Sánchez or Feijóo?

If PP are unable to secure a ruling majority, however, they may well be forced to rely on the far-right party Vox, who have often used nationalist anti-Gibraltar rhetoric as a political weapon. If Vox were to enter into government, which is unlikely but a possibility, it’s safe to say any agreement – if one is even reached before then – would be torn up and the Spanish government would take a much harder line in negotiations.

As the consequences of Brexit churn on in Britain, in Gibraltar uncertainty looms.

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