Welcome everyone. Once again, let's talk about politics and governance. We focus on this big question. Does the European Union have the power to tax? I have invited my speaker today, Ricardo Garcia Anton from Tilburg University, and I've invited Ricardo to help us navigate through the legal arguments for and against EU taxation. I want to discuss, of course, the implications for democracy and political legitimacy. Ricardo, welcome to our episode. Thank you very much, Rodrigo, for this kind of invitation. And yes, indeed the topic of whether or not the Union has the power to tax is extremely relevant today. As the speaker, the audience knows, I mean, it's clear that the Union right now does not have enough resources. Why? Because 70% of the resources that the Union has in the budget are basically contributions of the member states. So the idea of this paper, of this contribution was to research whether or not the Union has a power to tax. Therefore, I think also, maybe you asked me about the legal basis. Well, the research, and I think it's nice to put it in that way. The research tried to enter into the legal meaning of approvision in the treatise, article 311, that only speak about resources, but not taxes. Of course. So some research, so following what you said, some research was still needed also on how to reconcile the European Union's power to tax with the member states sovereignty. Yeah, yeah, because at the end of the day when you talk about taxes, the member states are extremely reluctant to give away sovereignty. So what is happening right now, that the Union is still a sort of prisoner, but put it in that way, a prisoner of let's say the member states. Why? Because the member states are the ones deciding the budget, let's say the expenditure side. And on the other hand also, they are in charge of the revenue side because the unanimity rules is needed to approve the new resources for the Union. So that means that if the Union depends on the member state to define policies and take, let's say, get the money, well, at the end we don't have autonomy. So this is the important, this contribution tried to shed light on whether or not the Union has this power to levy taxes. Of course. So you have given us a short, on point, promising background. So let us know now the most important findings or highlights of your study. Yeah. Well, the most important highlight, let's say, highlight from this research is that in article 311, the treaties speak about resources. Resources is a word that is quite common in international organizations like United Nations, NATO, etc. Well, in the Union now, we are not any longer in an international organization. We are beyond an international organization. The Union is a super national entity. So therefore, what I see in my research that article 311 speak about resources, very general, very broad. If we take the definition of taxes that the Court of Justice has handled in case law regarding, in this case, taxes of the member state, we came up to the conclusion that the concept is extremely broad. Therefore, in my article, I argue that taxes fall within this broad category of resources. But of course, then we have the unanimity rule. So new taxes. Can the Union levy new taxes? Yes. But of course, the unanimity rule will make or we can block, let's say, this initiative. This is the, let's say, the most important finding, like at the end, the Union has to follow the policies. Therefore, with the new environmental taxes, let's say the plastic, recycled plastic, plastic tax is for the first time a political resource. In the mean that the Union has a competence on environmental issues, fights against climate change, so environmental policy. And we have a resource that is this plastic tax to, let's say, compensate for this. Compensate is not the word, let's say, to get funds for this policy. So we clearly see a relationship between Union policy, Union competence on environmental issues and resource to pay for. So this is the important, let's say, the important action that we clearly see in the new design of resources. So the next generation budget for the first time try to make this link quite visible. Link between, I repeat, between policies of the Union, competence of the Union and resources. So we are not talking any longer of policies and goals of the member state. We are talking about authentic, unique, specific policies of the Union. And in practice, what does that mean for European Union public policy processes or politically? So I'm curious to know more about the consequences of this. Yeah, the consequences are tremendously because we know now the next generation is temporary. So the next generation for the audience means a temporary budget, let's say, to pay for infrastructure's resilience of the member state's economy. So it's not really money that is allocated to the Union. So it's money that is going to be spent by the member states. So what is the point that if we achieve in the future a sustainable and autonomous EU power to tax, we will have the Union providing for policies for the citizens. For instance, if member states do not have, for instance, subsidies for people who lost their jobs, whatever, or infrastructure, let's say the Union come, what we call it, provide public goods to the citizens. So this is the real impact of this research, ongoing research, trying to design a fiscal power of the Union that allows the Union to have autonomous resources to pay for autonomous policy goals. And of course, at the end, we benefit all. I think that is the main goal. At the end, we make a robust, more egalitarian Union, a Union that provides for public goods and not an Union that simply take care of what the member states want. So this is the important issue of designing an autonomous power to tax. And what are, in your opinion, future venues of research from now on, analyzing case studies beyond environmental policy, for example? Yeah, the idea also is to design, we have already this financial framework from 2021 to 2027. We have already scheduled several resources, environmental resources, that they are not taxes, because they are designed a way that are basically contribution of the member states. So what is the next step in the research? The next step is to design, let's say, taxes upon individuals, upon corporations. You know, the Commission has launched the new proposal, BEFIT, let's say harmonized taxable based for groups. That will be the basis of our own resource based on profit. That will be a major, major milestone in this evolution towards autonomous power to tax. So we are really in a very preliminary stage. So we have already only the input of the next generation budget. We have this new resources schedule, but we are still far away for what people call in America, Hamiltonian moment, when the Union has, let's say, in the power to tax the Congress, the US Congress has the power. And also, I would like also to point out that we have to get closer to a more democratic Union in the sense that the parliament has to have, should have a major role in approving the own resources. It's clear that this democratic legitimacy of the parliament in taxation is crucial. And at the moment, if we read article 311, the role of the parliament is extremely merely consul. So we want to have a strong Union, a strong European Parliament, let's say approving the budget and the resources for this budget. There's still much work to do. As you can imagine, we are now entering into this road. Of course, it's, well, in terms of future finish for research, still the tip of the iceberg that we're looking at. This has been a very straight on point episode, Ricardo, but I would like you to make an exercise now. If someone just came to this conversation and just didn't listen to anything you said before, what is the one two sentences that you would like to pass as a core message of this episode and your research? Yeah, that we need a more autonomous EU power to tax, that we need more taxes, more EU taxes, more EU resources, to EU policies. Great episode, Ricardo. Thank you very much. Thank you very much, Rodrigo. For all the viewers who are watching us on YouTube, you can find all the resources, all the materials, including the research, the article that served as base for this conversation on the Let's Talk About Politics and Governance website. And alternatively, you can also listen to this episode, wherever you get your podcast. And there's also a newsletter to subscribe to and a Twitter account. That's the course you taught you, LTA.


Good morning and welcome to the 15th meeting of the Culture, Tourism, Europe and External Relations Committee in session 5. I would like to remind members and the public to turn off mobile phones and any members using electronic devices to access committee papers. Can you please ensure that they are turned to silent? Our first item of business today is a decision on taking agenda item 4 on the committee expert support in private. Are members content to do that? Our second item of business today is an evidence session on the implications of the EU referendum for Scotland, and today the focus is on the rights of EU nationals. I would like to welcome our witnesses today to the meeting. Professor Eleanor Spaventa of Durham University, Professor Dmitry Kotchenov, chair of EU constitutional law at the University of Gronigan, Brendan Donley, director of the federal trust and former MEP, Sunder Kadwala, director of British Future and via video conference Professor Catherine Barnard, professor of European law at the University of Cambridge, welcome. This is obviously a very big subject and our committee has been studying the European single market membership in some detail, and it is fair to say that in Scotland quite a large part of the debate around the referendum has focused on the single market. I think that probably what struck many members from our briefings from some of the witnesses, and indeed from our adviser, Shona Douglas Scott, is that even membership of the single market will not address any of those issues relating to EU citizenship? I wonder perhaps, just as a general opening question, if you could perhaps tell us what you think the biggest challenges are in terms of the issue of EU citizenship boast for EU citizens living here in Scotland and the UK and Scottish and UK citizens living in Europe. Mr Donnelly, would you like to start? I'm afraid I'd have to give a rather evasive answer, which is that the problem is the problem of Brexit, that citizenship, it seems to me, can't be distinguished from the general question of leaving the European Union or more precisely what Britain's relationship with the EU will be once it's left the European Union. There's been complaints and criticisms of the Government of lacking a Brexit strategy. I think that's a misstatement. They have a Brexit strategy, which is to leave the European Union. The problem is what you're going to do in the Brexit environment, and you may raise a number of specific questions put to witnesses about the rights of citizens, and obviously those rights won't be there as European citizens because we would have left the European Union under the Government's hypothesis. The question is what future rights and reciprocal rights and obligations can be negotiated in the post-Brexit phase, and that we don't know the answer to. I'm sure that it will come up in the testimony that there are many barriers, both intellectual and political, to getting a clear picture of what that will be. Professor Kotchelev? Yes. These are set times for EU citizenship, actually, but I think we shouldn't stick to the name too much, so I would support the previous claim. The core focus should be on rights, so however the relationship is called, the rights in question are fundamental. In this respect, I tried to look at the implications of Brexit in the context of citizenship, so I call through the report on the quality of nationality, and there is a quality of nationality index, which is based on transparent numerical data, and what we see if there is no agreement reached in terms of free movement of persons with the EU, then the quality of British citizenship, the quality of the citizenship that Scots enjoy as well, is likely to drop by 30%, if you look at the data available, and all is very transparent, which means that British passport will be at the level of Argentinian passport, so it's a drastic drop in the quality of the rights that citizens enjoy, and in this sense all kinds of alarm bells should be ringing. Another thing, witnessing this, we should also realise that Brexit creates a new context of engagement between Europe and the UK. Before it was the context of loyalty, where self-help was prohibited by the European Court of Justice, so there was no reciprocity. Once the UK is talking Brexit, we are speaking about reciprocal relations where retaliation is possible, and in this context it's the UK versus the European Union, a relationship in which the UK is overwhelmingly weak because of the comparative importance of the two parties. No offence to the people of Argentina, but that statement is really quite striking. Could you maybe define what you mean by British passport? The Quality of National Index was designed together with the handling partners, a leading firm that deals in citizenship matters. We looked at the economic strength of the parties concerned, the territory associated with citizenship, plus free movement for tourist reasons in terms of short term stays, visa free, settlement abroad with your passport, which entitles you to work and to reside as long as you want without applying for any authorisations. In this sense the fact that UK citizens will not be able to benefit from free movement drastically reduces the quality of the rights they enjoy because the main added value of your citizenship, of course, is that it extends the same rights as national citizenship already provides to the holders, but multiplies them by factor 28. So while UK citizens by virtue of UK law can reside in the UK, can enjoy non-discrimination in the UK, and can work in the UK by virtue of EU law before Brexit, they can enjoy exactly the same rights in 27 more states. So the issue of scale is fundamental here, and then the loss of scale and the loss of the territory of rights, or the territory where rights can be legitimately claimed based on your citizenship, which corresponds to 27 other EU member states, leads to this drastic decrease in quality. No idea, surely, what the terms of Brexit are going to be, so how can you make any deductions of Brexit? So this mechanical exercise was simply done on the assumption that there is no free movement. So we're speaking about very, very hard Brexit. And then, as far as I understand, the purpose of this sitting is to see what kind of alternatives we have. So in my view, the view from across the channel, it should be fundamental and imperative to make sure that British citizens do not lose this factor 28 extra rights that the US citizenship now allows them to enjoy. Clarify, you mentioned Argentina. Are there other nations that, as well as Argentina? Yeah, well, so Argentina is... Would that include the United States or Japan or Australia? I mean, would it include every other nation in the world other than the European nations? So the index, yeah, I will explain. The index measures the quality of nationality of all the nations in the world over the last five years. And then there are several tyres of quality of nationality. The highest tyre is the range between the quality of German nationality, which is the highest quality, and Argentina, which is the lowest and the highest tyre. This is the top 50% of quality available at all if we count the best nation, which is Germany as maximum as 100. So the US, Japan, Brazil, all the leading wealthy nations are above which means that this 30% decreases something quite unprecedented because we also looked at the dynamic relationship between between citizenships around the world. So how citizenship quality decreases over the last five years. And the fastest decreasing nations are Ukraine, Syria, Libya, Bahrain. So all those that undergo conflict or in economic trouble. And there we're speaking about decreases in the range of 10%, not 30%, which will be the case with the UK. So the UK is an absolute outlier if we're speaking about the possibility of a hard Brexit.  Would it be possible for the committee to see some written evidence of your index? Thank you very much. I know that Mr Ketwalla wants to come in now. We're going to have some very complex negotiations that haven't begun yet and that we don't know, therefore, even the starting positions or the outcomes, and they will affect everybody in Scotland and everybody in Britain in lots of ways. The most pressing and urgent question is the 3 million Europeans who are living now in the UK, 150,000 of them in Scotland, over a million Brits around the EU. Now in the case of the European nationals living in Scotland and across the UK, there is no barrier in terms of having these negotiations or beginning these negotiations to the UK determining their future status beyond Brexit and the status that they will have. The only thing that requires to be negotiated is the protection of the UK nationals around the EU. There can be a decision to link those questions or to separate those questions, but it's entirely up to the UK Government if it wants to give the European nationals in Britain an assurance of their status. What has to happen, therefore, is a political decision, is that the current status of permanent residence is linked to our EU membership. You would have to invent a new status that was identical to it. This is a very similar proposition to the overall repeal act. The repeal act will incorporate everything that currently exists in European law into UK law and then we'll start there. You need to invent a version of what is currently permanent residence. You could call it an ex-EU status and you should give it all of the same rights that EU nationals currently have. The UK Government could do that right now or say that it was doing that. The biggest barrier to the assurance there is a political decision to give those people that commitment. I very much agree with that point. I think there are two issues. First of all, don't underestimate the cooling effect this is having on migration in terms of very skilled people. We have evidence in my institution of this having already happened in the past six months and for us this is obviously a real problem. If the UK Government were to clarify as soon as possible what are the rights of those people who might come or are already here. I think universities and businesses and those relying on very high skilled jobs would find it very helpful. My second point is that actually I have added two points. I think that there is a way whereby we can say European law already protects UK citizens when they are who are resident now in the EU even after breakfast seat. The real problem is EU citizens here and if we think about those most vulnerable pensioners at real risk both pensioners who are here, UK pensioners who are here, EU pensioners who are here and UK pensioners abroad and we know that we have almost 400,000 UK pensioners. Into that a little bit exactly in a practical terms how will these pensioners be affected? Because whilst you can decide that you give mutual rights pensioners in order to have the rights need an overarching structure so there is lots of secondary legislation and this legislation allows for instance for your pension to be paid abroad to be indexed as if you were here and crucially it allows your national health service or you have a right for your national health service to pay your expenses abroad. So whereas maybe it's not so expensive to have a private insurance if you are young and fit it is incredibly expensive if you are a pensioner and so once that system is no longer in place even if you have equality of rights you might see that these pensioners simply cannot stay abroad and so I think special attention should be given to replacing this coordination but the problem is this coordination will have to be negotiated with all of the member states once the UK is out so it's going to take a long time and that's why they are particularly vulnerable. Rachel Hamilton did you have a supplementary? Yes I'd like to ask Professor Koshinoff. You said that the position of the UK was overwhelmingly weak and I wondered if that was because you then later said that the issue of scale and the territory of rights of access for EU nationals to 27 other member states was that why you said that the position of the UK is overwhelmingly weak or can you expand on that? So the idea of the index is that nationalities get extra points for access to other states outside of the sovereign territory corresponding to the state granting the status of citizenship. So if we're speaking about hard Brexit UK nationals will lose rights in 27 states and possibly more if it extends to EA nations and free movement to Norway as well as after meaning Switzerland. So we're speaking about a drastic reduction of the territory where the rights are granted including crucially non-discrimination in the base of nationality. So suddenly the context changes to such a degree that it becomes legal and sometimes will become imperative for European nations to discriminate on the base of nationality against the holders of UK passports. So suddenly this presumption that everybody's unequal footing in Europe will not apply at all unless serious steps are taken in the negotiations to ensure that this indeed happens. And in this respect I would disagree most respectfully with Sander because I don't think it's up to the UK in terms of giving grace to those EU citizens to decide what happens with them. It is bound to become a fundamental issue in the negotiations between the UK and the European Union. The issue of free movement is essential for a large number of European member states especially Eastern and Central European countries and their leaders already made it quite clear that they will put this issue on the agenda. That's a conflation of two separate issues. The rights and status of people who live in Britain who happen to be Europeans the day after Britain has left the European Union, the British government can make any decision it wants. The EU governments can make any decisions they want. I can't see if you'll come into it later if the EU 27 decided to offer associate citizenship or something however likely or unlikely that is. I don't see how the British government could refuse it. You're of course right that the question of the future of free movement, the future policy of immigration to the UK, the future policy of the EU governments towards immigration, that will be an issue of negotiation in which future immigration policy future market access will be linked. The point matters here about the separation because we do not know the outcome of the immigration discussion, the market access discussion or anything else. If we were to guarantee the status and rights of the EU nationals already here or who arrived say up to article 50 which is a legal moment when there is a notification that something has happened and Britain is leaving, that guarantee would stand whether or not we continue free movement, join the EEA, have a transitional arrangement of five or 10 years or have the hardest possible Brexit. We're not then asking the people already affected to wait for a two-year period with this anxiety hanging over them to find out what their status is. We are making everybody else around you open around Britain wait for two years to find out what future rules apply. I'd like to bring in Professor Barnard because she's been sitting very patiently there down in Cambridge, so would you like to comment on what you've heard? Yeah, so thank you very much. As far as EU citizenship is concerned, I think there's quite a lot of misunderstanding about some fairly rudimentary points. The first point is that everyone who holds a nationality of a member state is an EU citizen and so following Brexit those UK nationals will no longer hold the nationality of a member state of the European Union and therefore will no longer be EU citizens. Now deprivation citizenship is a serious matter. It's less serious legally than it might otherwise be because of course UK nationals will retain the nationality of the United Kingdom so they will not be rendered stateless but nevertheless they will be deprived of the rights we've heard about the rights of free movement. Now as far as those who enjoy the rights of free movement are concerned, if we go back to 1957 when the treaty was first drafted, actually only those who were economically active had the rights of free movement so only those who were employed workers, those who were self-employed and those who provided services. Now scrolling forward to the early 1990s added to that mix were people who were semi economically active so students and persons of independent means which would also include the retired and those two groups had the rights of free movement provided they had sufficient resources and sufficient medical insurance and then 1992 everyone who held the nationality of a member state became an EU citizen and so then the question was what extra who else fell under the net to enjoy the rights of free movement and there was a group that had been left out of that analysis I've just given which are those who really do not are not are essentially economically inactive and there was a period of time when it looked like the Court of Justice was going to give quite significant rights to people who were economically inactive so people who were not contributing to the economy of the whole state but in a major decision a couple years ago a case called Dano the Court of Justice really seemed to have clamped down on that and so it said basically you've got to have as a minimum sufficient resources and sufficient health insurance to be living and in another member state so those who are on the margins of society although our citizens probably don't actually have the rights to free movement. Now on Brexit what we will have is that those rights for the groups I've just identified will be removed unless we join the European Economic Area as an independent state not as a membership of the European Union. Now of course the advantage of joining the European Economic Area is that it is as close to the position as we've got at present but it's worth noting that the European Economic Area does not recognise the concept of EU citizenship and so in fact if you we were to rejoin the EEA the European Economic Area and thus our position would be much the same as Norway or Iceland then there would be rights of free movement for those who are economically active so workers, self-employed, service providers and the so-called Citizens Rights Directive would also apply so students and persons of independent means would have rights but any hope that those who are economically inactive any rights they might have had previously under the more general principles of citizenship they wouldn't apply and the after court doesn't give a sort of citizenship expansive reading of the rights for those essentially economically active people. So what about say a spouse of a Spanish spouse of a British citizen who's spent her time say for example as a mum bringing up children what kind of rights would she have if any if she's been always been economically inactive? Yeah so that's the interesting question so under EU law as it stands at present and under what would be EEA law she would have independent rights of free movement if she was a person of independent means i.e. with sufficient medical insurance and sufficient resources which might have come from our husband her British husband where there's been a stumbling block at the moment is what constitutes sufficient medical insurance do you actually have to have a private policy that for which you're paying medical insurance or is it enough you can rely on at present the EHIC card or is it enough as a present that you've got access to the NHS and this is where it's not clear and this actually feeds into the broader discussion of what if there is a hard Brexit what's going to happen to those spouses if they want to stay in the UK and they can't show that they have got sufficient medical insurance so they don't benefit from permanent residency in order to get permanent residence under EU law at the moment you've got to have done five years under one of the categories i've mentioned including being a person of independent means including having medical insurance and we you've already heard that there's quite a lot of political will that people who've done five years should be given some sort of equivalent of indefinite leave to remain but only if they can show that they've got medical insurance and they've been here for five years so there's going to be practical problems about proof that leave to remain we know from third party citizens and our work as MSPs is really quite a complex thing to achieve and I know that in our written briefings has been talked of a more streamlined version of leave to remain but it is still a really complicated process isn't it and of course it's also expensive and the great advantage for migrants under EU rules is that the process is cheap really cheap at the moment to get a permanent residence card and that's why ILPA the Immigration Lawyers Practitioners Association have advocated some sort of status a bit like indefinite leave to remain but give it a different name so that the individuals aren't caught by the really significant fees that are currently charged to third country nationals. Thank you very much I know that Mr Kutwalla wants to come in and Professor Koceriff but I would like to hand over to Lewis McDonald. Perhaps they might also have views on the question of how that is actually applied so if we're talking about people who have been resident here for more than five years that will be a very large part of the three million across the UK a very large part of the population of EU citizens here in Scotland and some of them will by definition have no categorical documentary evidence that they've been here three years if they've been self-employed as many tradesmen and women for example might be and also many of them who have been here for five years and indeed a lot longer will never have considered applying for documentary evidence of that for the simple reason that they did not foresee the possibility they would need that so I'd be very interested in the views of perhaps starting with Mr Kutwalla given his report on the matter and others about the practicalities of how that five-year status or how the right to remain could be recognised and then how it could be applied for you free of charge or without the fees that that's completely right. I mean if we had the decision to grant the status implementing that I think would be the biggest administrative task the home office had ever carried out in its history the group that have five years and so have an entitlement to permanent residents now is probably about two thirds of the three million about two million people about therefore about a hundred thousand people in Scotland. Ministers in the UK government occasionally talk about that if asked about it as simply or formality and you know it's quite a complicated form and process but it costs 65 pounds to do it indefinitely to remain for a non-EU citizen costs 1,875 pounds so there is a very big gap there our proposal is that you know it's very important to do this properly and well and that people should have the minimum of inconvenience cost and hassle we think that the cost of applying for the bespoke status should be capped at the level of a UK citizen applying for a first passport 72 pounds and that would you know that that would be fair and reasonable but there's also the problem of the sheer scale of this the comprehensive health insurance is the biggest barrier between a third and 40% of these applications that are supposed to be a formality really are refused and in our evidence this was one of the biggest reasons for refusal our proposal is not to refuse on the grounds of the requirement of comprehensive health insurance especially from the old EU the initially EU countries people were never aware that this requirement was brought in and changed if they'd been a student so simply not requiring that would would make a big difference or Ylpa's suggestion has been treat the legal use right to use the NHS as meeting the requirement but if you took away the complex health insurance that would work as well the other issue is how can we make this more practical and there are local nationality checking services around the UK about 120 of them six in Scotland and that means in terms of getting your documentation and so on you know you can go in they can check whether you've got the right things you can go home and get it you're not sent in a pile that isn't open for six months and then you find you haven't got something because I read that in your written evidence that's a huge burden on the local authorities to administer they can they can charge if they were allowed to charge say the 70 pounds to to do this and if the simple cases go in they also have access to HMRC and to other DWP data and documentation that the state holds so what what is possible here is that they could green light simple cases but not refuse cases so if they cannot green light it can go into the home office pile but we could get the home office pile down to the you know down to the hundreds of thousands not the three million because we've got you know two million cases of people with five years residence another several hundred thousand who will have five years by brexit day and we could let people do this nearer their homes but the you know the local authority should be able to keep the cost of providing this service but you know the other burden that will come in is not just people trying to find out you know their gas bull from five years ago etc but as an employer you'd be looking not just to your current employees but everybody you might have employed since 2004 might suddenly be coming back looking for the evidence you might have gone out of business so where we can use the state systems to prove that people have a footprint everybody exercising their free movement rights will have a footprint in systems that the government holds we should try to access those systems to give people their status in the simple cases a lot of work yes and i think i mean it's bizarre that european students have never been told about the comprehensive health insurance requirement and so now we have the situation that the third country nationals who pay 150 pounds per year of a health surcharge are in a much potentially much better position than EU citizens and this thing it is true that the home office accepts the european health insurance card the problem is that your state of origin only gives you that until when you are resident there and so whilst under graduate student students might have that because they are still resident at home graduate students phd students those people who have settled in the uk for you know with families and and so on they wouldn't have that and we know from daram and that that is a real problem we have graduate students who have been there for a long time and yet don't manage to fulfill the criteria and the other problem is obviously the fee but the fee applies for every single family member so if you're a family of five multiply 1875 pounds per five that's a lot of money to ask low skilled workers and we know that there are lots of low skilled workers and and and they came in good faith when it was a right to come here so we must be very very careful that these rules are not don't turn out to be incredibly punitive and the last problem i would like to highlight that we haven't touched upon is a third country national family members of union citizens because those people especially if there has been a divorce or there has been a death in the family so that the main right holders say the italian spouse who is here as departed or as divorced then you might have a us citizen or a Somali citizen who had a right to stay here up until brexit and with her children possibly and loses everything afterwards because they are now longer going to be protected and the particular risk is that negotiations or mutual agreements will focus on union citizens and will forget that the union citizens might have family members who came legitimately and with an expectation of being treated in a certain way and again to to push them towards a normal immigration status because it is so expensive in the UK to be an immigrant it's possibly not fair and also you have if they were to become normal immigrants they would have to fulfill the income requirement and again this is not obvious that they would they would manage to do that so i think what's the alternative for somebody in that position what's the alternative way for government to deal with that case that i think that whatever framework we put us to include the third country national family members so that currently they are treated as if they were almost union citizens and they have to be included explicitly so that if you can prove a family tie or that you are matured a right under the citizenship directive which is you had been married the three years of which one in the UK or you are a widower and so on or there are domestic violence issues or you are a child because there are children involved as well then you should get exactly the same rights and again it's very important because in EU law if you are a British child or a child of a worker of a say a child of an Italian worker and your mum is American and your worker goes away or dies or divorces you or is an abusive partner the child in education also keeps the rights and this means that the mother or father the person who is caring for that child also has a right to reside and this is not the same in British immigration law so again there is a there are lots of bits that need to be considered right could be accommodated in the sort of thing that mr catwalla was proposing yes i think so and would not require agreement with EU it could be done it could be done and i think we have to remember that not to talk only about union citizens but also the third country national family members because they have also come here in the exercising rights basically professor kuchenne in and in this sense i think it makes sense to say that this derived rights of family members of of EU citizens used to be derived rights of family members of EU workers before 1982 before the creation of citizenship just to add to what professor barnard has described so the framework from the very beginning from the 50s and the EU the framework of free movement obviously included more vulnerable individuals who were not economically active as long as they were attached as it were their rights were secondary and derived from the rights of EU citizens so in these these people definitely should be protected in the UK after Brexit as well in a way we should realize that the EA framework of if the UK opts for that in part will protect those people because because the EA applies applies to all the all the persons moving freely as if 1992 must treaty didn't happen so in fact the EA court has obliged to interpret the directive on on citizens free movement including the rights that it grants to to family members who are not economically active in such a way as as if citizenship was not created by the Treaty of Maastricht and this this covers all the family members of of those who are economically active themselves and in this sense ill post proposals are actually great and they would they would add a great deal to the to the EA framework of that one is chosen but then on on on a different point if the UK really starts checking this health care health insurance requirement after after leaving the UK it looks like a new condition introduced randomly and applied retroactively compared with the conditions that the EU citizens had to satisfy throughout the time of the UK's EU membership because I think that the the the cut of idea of how you satisfy the conditions for permanent residence should be precisely as as as you said Mr McDonald the practice as applied during during the full membership of the UK in the EU so if in practice health care condition was not checked say 10 years ago when permanent residence cards were issued to EU citizens this practice should should remain as as a valid reference point because otherwise if we suddenly start interpreting EU free movement framework as if it it it required the EU EU EU free movers to to provide some proof of of health insurance we're clearly adding new requirement and this is something that that that unfortunately is only present in the UK debate it's a that there is that there is no realisation at all in the debate that this new requirement is sold to us as something as something that is classically present this is not the case and although Brendan Donnelly would like to come in it's very briefly to say if I may that I think the last point about adding an extra duty and extra responsibility illuminates an important part of the overall negotiations which are taking place it seems to me at a number of levels one between the united kingdom and the EU one between the prime minister and her party and one between the prime minister and those people who voted to leave and for many of those people who voted for leave the idea that something is very different and more onerous is precisely what they were voting for so there will always be this tension between continuity on the one hand which I can see grounds of equity and goodwill might well point in one direction but the need to demonstrate from the prime minister and other ministers that brexit means brexit and that is something very different from the position up till now will also be for her and for her ministers an important categorical imperative there is a very clear distinction to be drawn from a legitimate future debate about political and policy choices in the future and retrospective changes to people here there is very clearly a public consensus that over three quarters of leave voters as well as 90 percent of remain voters 84 percent of people in fact think that the right to remain and settle of people already here should be upheld and there are no voices in the political debate opposing that so we could act on that the health insurance requirement was changed in 2004 and what we have found is that if you are a 8 or a 2 you know about it because the requirements were introduced at a time when you were coming in and if you are if you are EU 15 then or EU 14 then you don't know about it nobody told you at all there was a change in 2004 and so it feels like a new requirement you weren't told about and finding a way to waive that deals with a lot of the administrative problem I'm keen to bring in Jackson Carlaw I'd actually write to return to Mr Donnelly I mean we've now from our professorial academic and think tank advisers had quite an intense exchange in fact at times I wondered if we needed to be here it was getting very kind of direct between them but I note obviously that in your own career you have worked in the foreign office the European Parliament and the European Commission and I'm interested as you listened to that exchange with that experience how these various dynamics do you feel will be being assessed and taken into account just now I mean that intensity and the contradictions that arose within it how will they be being currently assessed even in the kind of slight vacuum you identified at the start of our not knowing entirely other than that we want to leave what the position going forward will be beyond that this would be how they're assessed partners are EU partners within the the foreign office here and the both aspects of it because you know that was I mean I'm struck by how intense the kind of and complicated some of that will be and yet I was watching you throughout it and you had that rather phlegmatic appearance of a diplomat almost who was listening to all that with a kind of bemused attachment thinking well I can see all that but there will be people thinking a way through that is that your view well I must adopt a better poker face in future I think if it's so easy to read at least a part of my thought I mean I I absolutely welcome on grounds of equity the discussions which have gone on but I do have the sense that it's the overarching political question that will be decisive in these matters even to quite a micro level and I did mention part of the the public perception that Mrs May and her ministers want to create but I think I'd go further but I don't think that for our partners this debate is at the heart of what they're interested in I agree entirely that a that a generous gesture towards the two million will be very very welcome and would help our negotiating position I do agree with that but I think that there is a fundamental problem at the beginning which is that those this country those people who are as it were running brexit believes that we can have a better adjustment of rights and responsibilities than we have at the moment it's the specific and stated aim of our partners to give us a worse deal how can those two be brought together and it seems to me that they can only be brought together by something rather like where we are at the moment which undermines entirely the proposition that brexit will will bring something useful about and I'm not sure how that's going to be squared so I'm not sure a diplomat could tell you how to do that a diplomat certainly will look at the issues the important issues that have been raised but the diplomat in the foreign office it seems to me has no more idea how that circuit is to be squared than than I do or with respect I suspect you do thank you Professor Barnard did you want to come in there? Professor? No I actually I I absolutely agree with that the the fundamental issue is what to do with those people who are already here and the then going forward the future relationship now my understanding from what I've seen from the political debate is that even amongst the most ardent levers among the politicians that they are very willing to give recognition of rights to those EEA nationals who are already here and that could be dealt with through some of the proposals that British futures and others have put forward I think the the circle be squared somewhat in respect of what the situation will look like going forward in respect of new migrants and then the question is do we join the EEA and have essentially migration on much the same terms with those who are economically active plus students plus those with independent means or do we have a much more dramatic curtailment of immigration now what's interesting about the EEA agreement is that it does have an emergency brake provision in it in article I think 112 which the EU treaty does not have now there's been no experience of using the emergency brake provision in the agreement but it is there in the case of a significant need by a member state that wants to interfere with the operation of for example free movement but it may be that that is just too sensitive because the political downsides of rejoining the EEA are great namely that we will be bound by EU rules over which we will not have a formal say although we will have a say in respect of their drafting at an early stage they get the EEA states get consulted there and also of course we will have to continue paying into the EU budget and Norway is the 10th largest contributor to the EU budget at present and these things may just be too politically unpalatable so then the question is should there be a bespoke deal going forward which may be sector specific so recognising for example that there is a need in the care sector or possibly in the agricultural sector for the introduction of in the case the agricultural sector some sort of seasonal workers agreement as they arrangement they used to be and the government works on a bilateral or a basis as having a specific deal but sector specific rather than a general right of free movement but that's going forward not dealing with those who are ready in this country. If I could move the discussion on to talk about the rights of UK citizens I wondered if the members of the panel would care to comment on the proposal by Giverhoff Stad on the idea of buying in to associate membership of the EU and whether the Professor Kochenow. Well unfortunately under the current conditions I don't see any possibility legally speaking to have this in place it's absolutely indispensable to change the treaty in this respect because part 2 TFAU which is responsible for citizenship doesn't allow for this kind of status so if if all the member states of the EU agree and if it's seen as as politically palatable for them then this is something we can speak about but there is a fundamental problem here because once we speak about post Brexit relations between the UK and the EU these are most likely reciprocity based relations so if we speak about an associate citizenship this is a one way provision of rights as opposed to a reciprocal arrangement because all EU citizens who didn't lose the status as a result of Brexit but find themselves in the UK for one reason or another will not benefit at all from this kind of grant of rights to those who actually exercise their full political sovereignty to leave the EU in the first place so there are several problems with this associate citizenship idea the first one the EU is asked to grant rights to those who decided precisely to leave the EU and second the EU thereby doesn't grant any rights whatsoever to its own citizens so it might even be contrary to the idea of non-discrimination as understood in the EU law as such and then for this reason I don't think it's it's something that that can possibly go through I'm understanding was that it was individuals that he was suggesting might want to buy in but professors prevent her I agree that you needed to change the treaty and let's remember that the eastern block is not impressed by the political rhetoric of not wanting EU workers because for obvious reasons of migration post 2004 so there might be a political unwillingness to do it I disagree with where the professor coaching off on the fact that it might conflict with principles in the treaty but you would need a treaty modification and also this will open up a new another debate an historical debate which has been long standing since 1992 which is the need of the EU to give some sort of union citizenship to third country nationals who are residing in the EU territory and you might say that is not connected but it will be politically connected and so it's not just the decision of yes I treat the UK citizens better because then there will be a legitimate claim by third country nationals who have been in the EU territory for more than 10 years to have a similar treatment so I think it's wonderful I think it in in theory but in practice it has been misrepresented by the media also as an idea that you know the European parliament would make it a condition for for an ideal which is actually not true I think I think brennan donnelly wanted to very briefly to that I think for some of our partners it is a proposal that would have some attractions actually because it's not the people who voted for brexit who are going to be applying for associate european citizenship it seems to me it's precisely the the downtrodden minority in the view of certain of our continental colleagues so I think this is something that might well fly and be an interesting element of the negotiations I'd like all our witnesses to comment on this so I'll go to mr carwalla and then professor Barnard I think the proposal is a symbolic political gesture at this stage and politicians make symbolic political gestures that's part of politics I think I think it does risk raising expectations perhaps particularly in scotland or in london or the more strongly EU pro EU parts of the country that this will happen or the european parliament has a way to do it there's a catch 22 in this I think I think the EU 27 Governments are very unlikely to offer it you know apart from the fact of needing a treaty to to do so the UK government could be entirely indifferent about the symbolic gesture and say please offer it if you'd like to they could take offence at it for symbolic reasons as well but they could just say very happy for our citizens to be offered things on optional basis I think the catch 22 is it would only make sense to offer it to individual citizens if free movement was in place at which point the content of the offer would be diminished but the idea of EU 27 Governments offering the chance for a million two million five million britans who might like to live and work abroad to opt in unilaterally to one-way free movement would be a very curious thing for them to do at the start of a negotiation yes I rather agree with that analysis I think for remainers of course it has raised hopes that there is that people on the other side of the channel are listening to their position I think some remainers feel that the the leave campaign has been very successful in really running the show at the moment and so this at least showed a recognition that there were quite a lot of people who did not vote in favour of brexit on the other hand so much is left unsaid in particular how much payment would then need to be on an annual basis to enjoy this associate citizenship would it be a hundred pound or a thousand pound but if you think if it is accompanied with the rights to have access to the benefit system in another member state or access to the health care system another member state in the case of emergency treatment assuming that the EHIC card disappears then it starts to become quite costly for those other member states and so there may be quite strong political imperative on the part of the EU 27 to say no way because it is not reciprocated that said it is worth bearing in mind and it may be at the root of why so many people did vote leave is that although all the benefits are present under EU law are reciprocal so if I go to France and get sick I get treated in a French hospital likewise vice versa with a French person in the UK in fact migration has not been evenly spread across the EU for very obvious reasons that we know about if you look for example at universities there's been quite significant influx of EU migrants often to the benefit of British universities but not the same numbers are going to for example lack via Lithuania Poland as poles are coming to the UK and so there is a perception of the uneven burden and spread of migration across the European Union associate citizenship of course would mean that there is this in reverse that large numbers of UK nationals would be able to take advantage of it were it to be adopted bringing Stuart McMillan MSP thank you I found this area to be fascinating to be honest I was going to come to Mr Donnelly first of all but he actually preempted the question but that certainly Mr Katwalla's point regarding the catch 22 situation in this associate membership now if there were to be proposals put on the table regarding the associate membership and clearly there would be benefits for UK nationals but certainly I could foresee benefits also for the other 27 member states it's certainly evidence that this committee has received in the past regarding the financial sector and also in terms of academia and researchers when the UK does come out of the European Union there has been the issues raised in terms of trying to entice industry entice workers from the UK to go and relocate elsewhere in the European Union so in terms of the associate membership was that something they think would actually make that easier to undertake or would it be something that wouldn't have much of an impact at all in a way it's another way of restating the sort of catch 22 issue I mean I think this this proposal has an impact if there is a very distant and cold Brexit whereas Britain as to the European Union is as you know is as the UK to anywhere else in the world South Korea or Japan and it has less impact the close to the partnership after the EU you have and yet the political willingness to do it I think would be high if there was a very close partnership and very low I think if there being a you know total breakdown of relationships at that point it would become rather a one way offer for people to to opt in I mean one of the features of UK attitudes it might change after the referendum but including in Scotland as across the UK is that is that the level of identification as European national as European is just distinctly lower in the UK than in all the other EU member states and in the in the Natsen evidence it was running at a level of about 15% of people choosing it among all their other identities it might be that the people who voted remain feel much more European after June and in the in the future so the the take-up wouldn't the symbolism of it might not be as effective as well as some of the people you know think it think it might be I think this this identity issue affects in many ways why free movement is a different debate in Britain from the rest of the EU which is a big issue in these negotiations because I think if you have if you have an idea of national citizenship and European citizenship and European identity which is basically the norm in the other countries then EU free movement is a hybrid in a way of migration and of internal mobility and I think in the UK free movement looks much more like a form of immigration than it does like a form of inward mobility because the level of European identity and Europeans the salience of European citizenship has been very low in the past ahead of this referendum. Mr Dornley. If I may just to confirm something that we've just said about European identity I remember at the time of the the European constitutional treaty talking with German friends about the reassurance that they believed that many German citizens derived from a European level of defence of their rights. I think there are many fewer people in this country who perceive what is the the the basis of a lot of your questioning European rights. They think rights should come in many cases from the United Kingdom and in so far as rights come from the from from a united Europe they may be in conflict with the rights of British citizens as decided by parliament and that is a debate that's much more salient in this country than it is in most continental country. What might the position of Scotland be in this context given that Scotland voted 62% remain and the First Minister has said that she's looking for some kind of differentiated we think and some kind of differentiated deal for Scotland? I mean would it be possible for Scotland to have associate rights as somewhere which voted remain? To this. Sorry. Professor Spaventhal. But it depends what the associated membership means. If you have free movement I mean either you interpret this as a really symbolic gesture whereby you simply remove the need of a visa to travel to the EU then of course but if you mean it as a proper substantial status where you have a free movement of workers where you have the right to work and engage in the economic life of another member state you again have the problem of reciprocity and it's difficult to understand how you would carve out this deal just for the Scottish people. And also you know if even I mean if you give any right to exercise an economic activity you cannot really say you can exercise self-employment but not employment say that workers were our particular concern because what you risk then is bogus self-employment which is a disaster for the working standards of the countries that are affected and we have evidence. So I don't see how we could even if we wanted out that could legally or politically being carved so as to have any significance beyond you know coming in and out. In London there's quite a lot of work being done on a visa for London and the evidence that this committee took last week was that we have the similar issues to London in terms of skilled workforce but we also have this additional demographic challenge in that without more migration Scotland has big demographic challenges much more so than the rest of the UK and there have been acknowledgments of that by say the UK government there have been noises in the sense that they understand that that's an issue for Scotland. So yes but if you had a Scottish visa London visa then how do you control that that person doesn't move somewhere else in Italy is a funny country because we are the visas from the south of Italy to work in the north even after we were members of the European communities this is because the northerners didn't like the southerners but the it's impossible to how do you enforce that. So if I come here as an Italian to Scotland how can you make sure I don't end up in Durham and it's okay if I'm employed because you are in force you are imposing on my employer a visa check but what if I say that I'm self employed how are you going to police that it's very difficult to have something like that and also how do you reconcile that with the basic idea that you should be able to move around your own state a state without checks so I don't think it's so easy. Mr Kawal. The international evidence and you know there are regional systems often in larger geographical territories is very mixed on this precise question of controlling the UK context after Brexit UK confidence of the public in the government having an immigration system that works where it manages is very very low compared to confidence elsewhere and so until you've got that confidence in a system people would struggle with what the international evidence shows is that people will very easily move of course from the area they have rights to there are I think exceptions and you had the fresh talent and post study system in the past and the attraction of a system like that is as a graduate from a Scottish university having therefore some ties in Scotland with an offer of a job from a Scottish employer for a limited period of time say two or three years we could then make your your future eligibility for other forms of visas or settlement dependent on you having been seen to do it we might then have a system where we could where we could win trust and assurance that it seems rather likely that people offered this will play by the rules and not go and work somewhere there not meant to but I think you you've got I mean the UK government I think is very skeptical because it likes to you know keep the powers to itself awfully general schemes but I think you have a problem with political and public consent until you can show why something would be enforceable that's very hard to enforce professor Barnard on this point about employers having to enforcement it's common misunderstanding that immigration is all about border control and that's controlling numbers is done at the border this is absolutely not the case border control is for keeping largely for keeping out undesirable people it's not about controlling immigration the immigration control is being done now much more by employers and here if I can declare an interest wearing my employer hat because I am seeing a tutor of the largest college at Cambridge the implications for now having to have visas for any EEA nationals working in the UK is significant the burdens of administering tier two and tier four visas are really quite substantial it's highly complex it's also very very expensive for the individuals concerned and the prospect of having to do much more of that for all of the EEA nationals is really quite concerning and this is not a uniquely Cambridge point it applies to any employer who employs non-British nationals because the enforcement is done by employers it's not done by border guards there's a common misunderstanding on that point secondly it is just worth bearing in mind that although we know that a lot of people were voted motivated to vote leave because of their concerns about EU immigration in fact immigration coming from third countries i non EEA states is still higher than it is coming from EU states and in respect of third states i non EEA states we still have complete control and yet the numbers are still higher it's not significant it's about last year it was about 270,000 coming from EU states and about 285,000 coming from third countries but the fact is we do have now complete control in respect of those third countries Mr Donnelly I agree that the cases of Scotland and Ireland in some ways are similar in regard to possible separate visa regimes I agree with Professor Speventer and I think I'd just add one thing which is that traditionally or for a long time the British labour market has been a highly deregulated one that makes it in my view rather more difficult to police within a geographic area of Spain or London the visas because it's very easy to set yourself up as self-employed and I'm not sure that all employers will be as scrupulous as the University of Cambridge in checking the obligations regarding Scottish or or London visa holders for from the European Union of course Scotland's getting full powers over income tax now as of this year Scotland will have full powers over income tax so there'll be a Scottish rate of income tax do you think that will make a difference I think it would need to be very different from what it is now for it to be a significant factor I think that people come from continental Europe particularly from central and eastern Europe as we regard it on the basis of a very much higher salaries in this country which will not greatly be changed by changes in the income tax unless they were so ready the reason I say that is because you can actually identify where the person lives because they're paying that rate of income tax the residency has to be determined yes but then people from Scotland will be able to go easily to England and my my thought is that perhaps English employers and English authorities wouldn't be as as as stringent as might be the case in Scotland. Professor Kachanov I just want to throw in a basic idea which is which is sometimes forgotten that the EU is actually extremely flexible in the way how it extends rights to its own citizens outside of its own territory because the EU territory doesn't overlap entirely with the territories of the member states so we have plenty of examples in New Caledonia in French Polynesia in the Dutch overseas in the Caribbean where EU citizens would only have self-employment rights for instance and no unlimited right to state to stay otherwise where EU workers will need to apply for a residence permit etc so and then the same place to Greenland then there's a very special status for Faro and Gibraltar and I mean also the UK participates in this so if if we draw examples from there from the overseas where the boundaries between full membership and and the social membership are quite blurred we see that the EU is actually ready to to to to go an extra mile to to meet the requirements of those of those territories which which which are rooted in their special special nature in the special nature of the status or the or the geographical economics economic position so in this sense there is a lot of non reciprocal relationships that that apply to EU citizens in in particular territories outside of the EU and something of this something of this kind could theoretically inspire negotiations and then and it will be an unchartered territory in many respects but negotiations that could result in some special relationship between the EU and Scotland or the EU and say Northern Ireland and I know there are some studies on this for instance there is there is Dr Nicos Coutaris at the LSE who wrote a detailed paper looking at potential points of inspiration coming from the application of EU law in the overseas in terms of creating flexible relationships between the EU and and different trade different regions of the UK the trouble is of course that the majority of those countries or territories overseas that got in a symmetrical relationship benefit from from the good will of the of the EU to contribute to their well-being and to their development so if if the country is not as developed as the EU it can be entitled to some extra border controls to some special rules that would limit the EU citizens involvement in the local labor market and at the same time will give the the the residents of that territory full rights in the EU but then you need to you need to prove that Scotland is in some sense so special that that it should convince the EU to to to apply the same the same deviations from its from its own idea of equality as a matter for negotiation yeah so in in theory it's it's possible if if if you really design this legally speaking in a in a very sound way to ask for some kind of really special treatment for certain regions and the inspiration can come from the overseas Ross Greer yeah this question is a bit more political speculation than legal theory i'm afraid but a lot of the discussions we've had so far do seem to come back to what the political position of the other the u-27 will be in regards to the UK and we've touched on the breakdown in good well so far and certainly colleagues in in broslows and berlin had mentioned that they realised their side such as it is was going to be playing hardball when anglo-merical dismissed therese amaze attempts to try and resolve some of these citizenship issues early i was wondering if you would care to speculate on the what effect next year's elections across the member states might have on the 27's collective negotiating position and realize it's largely western european nations but is the the big ones that is france germany and to a lesser extent the netherlands do you think that was significantly effective because we've seen already it began to creep into the french primary debates if i may start the the fundamental principles will not change no matter what kind of government is in charge no government no no government will be easily will easily accept the idea of diminishing the amount of rights that its own citizens enjoy somewhere which means that i don't see any any kind of connection correlation between between the the changing government and the idea of protecting the rights of u citizens post brexit in the UK in the context of of the negotiations plus the institutions most likely institutions of the EU will will definitely play a significant role and those are much less affected by political change in particular member states i think we've got perhaps a six a 12 month period or six month period after article 50 where i think if we want to check the polarization of the british debate and the european debate i think some things have to happen in the UK where both sides i think the UK side and the EU side have talked about their red lines but neither side has talked very much about solutions that might fit within them i don't think because of the reason you give of the elections we can expect european governments to say anything very different until after the german elections and either the french or more likely perhaps the dutch election might be another very significant sort of disruptive shock and you know people are also still watching how the UK debate plays out around you know article 50 and you know are you sure you're leaving so i think you know we won't know what the EU governments actually think in the last six to 12 months of the negotiations because we don't know who the people are in those negotiations who is the president of France and what is the prevailing political situation so you have a period of time i think between the run up to article 50 and article 50 on the autumn of 2017 when we'll either change or not change the UK debate and if we hear UK voices saying you know there is an appetite here for a constructive future partnership that we want to negotiate and hear some ideas of what it looks like you might get a reciprocity of that spirit but at the moment two sets of debates about incompatible red lines mean that whether you want one or not you're heading to a harder cold to Brexit did you want to come in specifically on that point yeah i just wanted to jump in one second the what the building on what Catherine Barnard has already said migration flows in the u are very very symmetrical so the the challenges that the UK is facing in the negotiations are very different from what France or the Netherlands will be facing because the UK needs to protect its own citizens in Europe and also think about those EU citizens who are present in the UK this will not be the case uh say in France or Poland because there are almost no UK citizens in Poland so there is only one concern for the polish government and that concern is the protection of polls in the UK which which definitely will will affect the way how negotiations that you can read that differently the polish prime minister came to London and said very clearly neither neither group the polls in Britain and the other Europeans in Britain nor the britains in Poland want to feel like hostages to this negotiation so the polish government is a strong ally of the UK government getting the agreement from all of the governments because they stand to benefit most from the UK government moving its position so i continued to think that if we can separate the moral force of the legitimate expectations of the people already experiencing the anxiety from these complex future political negotiations we could get somewhere i think it would only be in the event of mrs le pen winning the french presidential election that it wouldn't that these elections will make a significant difference i think that that there is a a desire in this country to believe that as it were the cards are going to fall in the british government's direction they're not falling at the moment oh well there's going to be an election perhaps that'll change perhaps it'll change in germany i i don't think it will and i agree very much that um that the underlying principles will be the same i think it's quite important in the context of short term timetables to differentiate between the article 15 negotiations and the long term relationship um i think it's possible that the lack of a german government probably until december because even if we have the election in september it might well be a little while before the government is in place might make marginally more difficult the the article 15 negotiations but the long term relationship is it seems to me not one that is going to be decided in the next couple of years anyway so elections make even less of a difference in that context i'd say about the relationship getting better i was more concerned about how it might get worse under various post-election scenarios do you think there's much optimism going around here at the moment well i think but in london perhaps perhaps there's more realism in scotland but but in london there is the view sometimes that of course for domestic audiences french politicians and german politicians have to talk tough about britain but they'll change their mind when they're safely reelected i i i don't believe that okay professors bevento oh i just wanted to you know reading the sum of the european media there is really no appetite to be nasty to the uk uk citizens abroad in fact is not covered at all i think it's given for granted and remember that most member states have written constitutions whether fundamental rights enshrined in italy you know this is because this is the only legal system and beside this one that i know quite well it migrants would probably be protected anyway under doctrines of fundamental rights and legitimate expectations so this idea that the u is going to use this as a as a card i think it's very it's politically very unlikely to happen legally i think they would not be able to because i think these citizens are still protected under you know and they would be protected by the constitutions and you know the judicial system of those member states and so i'm not very anxious beside pensioners which are a different problem because you need some cooperation i i don't know whether dimitri agrees but i'm keen to move on because we have another question from Lewis McDonald yes it was perhaps for Catherine Barnard in the first instance is really around the whether there are implications of the echr and particularly articulate the right to family privacy of and family life or whether that has any implications for the position either of EU citizens in the UK or vice versa and whether that in itself might be an influence on the approach to negotiations either by the UK or by the European Commission yes thank you article 8 certainly will help both the EU nationals here and UK nationals elsewhere and of course in most other member states as professor Beventer has said it's not just the echr but it's also national constitutions which have fairly robust fundamental rights protection sometimes better than that provided by the european convention now in the UK of course we've still got the human rights act which will give effect to article 8 although the protection there is not always as robust as people might think it's stronger in respect of deportation than it is in respect of family reunification but certainly it will give some it will give some rights and it will mean that even if there is the worst case scenario which i think we would all agree which is that the two years expires and there's no deal at all and therefore we have a disorderly brexit rather than not just a hard Brexit but a chaotic Brexit because the time has run out and article 50 hasn't been the period has not been extended because that requires unanimous voting the fact is that still the human rights act will apply and also common law doctrines based on legitimate expectations public law doctrines based on legitimate expectations and so were there suddenly to be a desire to deport all of those EU nationals living in the UK then the courts would be swamped with challenges based on the ECHR and traditional British public law doctrines. Professor Kotchenhoff is nodding there. Well I fully agree ECHR will play a decisive role in protecting those who would otherwise be left without any protection should disorderly brexit happen so I agree entirely article 8 will play a fundamental role there. There's also an important point here though that you know this is a shocking scenario and I think as Professor Prosperenti said you know there's a legal backstop here but the backstop is very much a second or third best approach here this would be a very slow a very costly a very uncertain way of finding out that some people have article 8 protections and other people don't so while while that would make you know a shocking scenario of mass deportation something that could be successfully legally challenged you know in over two years time if somebody started trying to do that we've got four million people here who would like to hear something before we settle all of these questions and that's where I think the civic pressure should be now it's in nobody's interest to end up with a large irregular group of people who could have had their rights protected I think where the Scottish Government can play a particular role apart from being part of the pressure to get that guarantee as you know lots of Scottish opinion has been is that then the advice to people who have not needed advice before EEA nationals will be needed I think you will find employers very eager to help if they know what to say and at the moment they feel rather anxious that they have anxious employees and they can't reassure them and they're not sure what to say so I think helping employers do it but I think there will need to be targeted advice at the self-employed and at those invulnerable employment and here I think local authorities and the Scottish Government nationally you know would have a big role I think in getting the advice to people who might not hear you know what the processes are. A few years ago there was substantial pressure in the Conservative Party at least to redefine and possibly even to abandon British membership of the European Convention on Human Rights all that we've had discussed in the past few minutes is predicated on the assumption that we continue to be a member of the European Convention of Human Rights and I'd just like to say that that's not necessarily an absolutely cast iron assumption. Yeah but rights you could argue from a legal viewpoint that until when we can mount and of the European Convention of Human Rights if we come out everything the relationship before that moment would still be regulated by the ECHR even if you have come out so if the issue is that you have the home office saying Elena Spaventa needs to go back to Italy my relationship up until the time in which we come out would be regulated by article 8 so I would be able to rely on that for all that has happened before but I'm slightly less optimistic on the beauties of article 8 because actually the European Court of Human Rights has given a huge margin of appreciation to the member states in matters of immigration is very very strict as nowhere near as protected and as I think we remarked this idea that every single citizen in the UK would have to go to court to see basic rights recognised would be very disappointing and very very costly. No I was just I was just simply going to say indeed that's that's so but I guess part of my thinking behind my question was around the decisions the UK government has to make in terms of its both its treatment of citizens of other countries already here and in terms of its approach to negotiations and my what I was suggesting was that article 8 in those rights would influence the approach the UK government could take because if it took a particularly unhelpful approach it would run the risk of exactly that kind of judicial chaos of courts filled with applicants claiming their rights under ECHR. Can I ask the panel what they think of the possibility of the UK government reaching bilateral agreements with individual EU states for example we've talked about the number of UK citizens in Spain for example is there any possibility you think that that might happen Mr Katwalla. What will need to happen in the detail is that if the EU governments make an agreement that you know they have agreed to uphold the rights as they were you know if you have this permanent leave to remain status that was sort of ex-EU and that was reciprocated what you'd have any EU level would be the commitment to implement that in national law you would then need some you know exchanges and scrutiny about the system of pensions operating I mean we bilaterally do and don't operate pensions on a bilateral basis you don't get your pension upgraded if you retire to Canada for example but you do for other countries so you know there'd be a level of scrutiny but I think you want the agreement at the European level about what what the principle is that's being applied and therefore you need some adjudication that everybody has done what they're what they're meant what they're meant to do at the national level so I think the bilateral discussion should be about implementation I think a more dispersed bilateral agreement than that would be really rather difficult to work through. This bilateralism would imply throwing away the idea of a EU citizenship for the member states of the EU because once we go bilateral the presumption is that different EU citizens will get different rights depending on their association with the concrete member state of the EU while all of them are here in the UK the ones that interest us so I think there will be a strong extremely strong aversion in the European Union to take this route at least until the moment when when Brexit agreement is reached because once the Brexit agreement is there and that agreement will necessarily have a lot to say about how how free movement or how the situation of of those who have moved is regulated once the once the agreement is in place probably in the future bilateral relations are possible but not not until the moment when when all the key key points are answered so in this sense I fully agree with you. Mr Dornlay. I agree with that but there's no chance of bilateral arrangements before Brexit and if there was hope and there is always a temptation in negotiators if you're negotiating with a large group of other people to try and split people off and I'd be amazed if that isn't a hope residing somewhere in the foreign office where I used to be but I think that's a vain hope. I think it will be a question of what happens in the final exit negotiations it might well be envisaged that there will be bilateral relations afterwards or it might be envisaged the contrary that bilateral relations will be forbidden because the EU decided that they must be negotiated with the bloc even after Brexit but I can't see it it's being a question on the table until Brexit has has occurred. Professor Barad. I'm broadly in agreement with that I'd like to make two points one as far as immigration from third countries is concerned while in the past that used to be a matter for domestic law of the individual member states there is a growing body of EU rules regulating immigration from third states for example there are rules on long-term residence there are rules on family reunification there are rules on so-called blue card workers so those are the highly skilled workers seasonal workers intra corporate transfers so there's increasing volume of EU law on the position of third country nationals paradoxically those rules will apply to the UK once we leave albeit that we have opted out of those rules while we're in the European Union secondly in respect of any bilateral agreements you've got to remember the capacity issues because of course as you know if we come out the customs union the UK is determined to do free trade deals negotiating a free trade deal is a hugely demanding exercise we already know that the the most recent trade deal with Canada has taken slightly depends on how you count but up to nine years to negotiate and so if there's going to be negotiations of trade deals that requires a vast quantity of civil service resource and it's important to remember that the civil service certainly in the in Westminster is at its smallest level since probably the end of the second world war so there are serious capacity issues thank you for that and we're going to have to wind up very soon I just wanted to ask professor's preventer just to clarify something you said earlier that you thought that EU law would protect UK nationals living in EU countries could you just explain what you meant by that exactly how that would happen um so the at the moment UK citizens are protected as EU citizens and they're protected because they have exercised a right granted directly directly by EU law now for me it's and I think I will make actually a bit more I will refine this argument but for me it's unthinkable that someone who added your nationality EU citizenship at the time of exit will just be treated as a normal third country national and this is because of a quite complex legal and quite a complex body of case law but it's because when they exercise the right they hand a right so a loss of that right in terms of European law should be treated differently from how you would treat a Canadian or whatever and the reason why I think that is particularly true is because third country national family members so the spouse or the children of a of a worker keep the right to reside in the host member state in certain circumstances even when the main right holder has left so if I'm Italian and I bring here my Canadian husband and then I decide I don't really like the UK anymore neither do I like my husband very more and I go back to Italy my husband will keep in European law rights he will be protected as a special person he's not going to be treated as a third country national now for me is unthinkable that when you think about UK citizens who have come exercising their own EU rights and this right changes because of Brexit that they would be treated worse than my Canadian husband and this is because of a series of constitutional constraints and principles that the European Court of Justice and the European institutions have elaborated in the past 20 years now I'm happy to elaborate more but it becomes awfully complicated does Professor Barnard agree with us yes and I think there there's certainly it's not straightforward but I would also say that as a fallback position British nationals who are in France and have been living there for some time as a minimum would be able to take advantage of the long-term residence directive which gives rights to third country nationals who have resided for a long period of time in a third country in any EU country. Professor Kochanov. In the Netherlands unfortunately we have said examples where formalism prevails and the Netherlands went through a similar process of decolonisation like the UK and then Suriname Nationals created on the 1st of January in the beginning of the 80s I think it was 81 suddenly discovered they were that they were treated precisely as as third country nationals coming from coming from nowhere so the history of the Dutch citizenship throughout the whole lifetime was absolutely ignored and not a single court has done anything to alleviate this pressure so then we had to wait for the EHR to say a word and there is a body of case law coming from Strasbourg that actually reminds Dutch courts please take into account the history of the status of those people but if not the EHR the national system would not protect those people and then of course it's not to disagree with with Professor Spaventa I do believe a law will have a lot to say but probably this belief should be a little bit qualified and then building on what Professor Barnard said of course the directive on third country nationals who are long-term residents will help to to to regularize it for the status of UK nationals who are resident in the EU here the trouble is however as EU citizens they cannot lose the status and the status of long-term residents of the EU can be lost as a result of absences and there are conditions in the directive so this status is not absolute and it provides a lower grade of protection compared with the EU citizenship so in this sense I think it should be one of the priorities in the negotiations to come up with actually and here I'll probably disagree with you with a better degree of protection already in the leave agreement that would that would need to be granted to UK citizens who are now present in the territory of the 27 EU member states thank you just to finish off on that point I don't know of our panellist can just say in a couple of sentences whether they think that this issue of rights will be settled under the article 50 timescale or whether it's going to require some kind of transition period I think the question for the people already there can be settled under article 50 which is important because then it's done in the European council by qualified majority voting and therefore it can't be held up you know unreasonably by one partner you know doing something tactical the key point though I think is to press that it is settled right at the start before by declaration and on day one because at the moment there's a block on sequencing of something that everybody should agree and that everybody can agree about what is the etiquette and the dance of getting there if the block is no negotiation without notification then we can settle all of it on you can settle the big point that we want to hear on day one if the principle became nothing is agreed until everything is agreed then everybody is waiting another two and a half years to get you know something that is causing a lot of anxiety. Professor Speventa. Yeah I entirely agree that it is an article 50 matter if you know it's one of the main article 50 matters because it is what to do with people who want exercise their own rights at the moment of exit and I think there is no one amongst my academic and non-academic colleagues who would not wish for this to be settled as soon as possible including employers and so on. I think it would be very sad if either the U or the UK did not get this out of the way as the first issue but then we live in very sad times so I'm not so sure I can foresee what's going to happen but Professor Kolchinoff. I fully agree with that and then the follow-up question is how much article 50 will be used to define the future relationship because now it seems like among the institutions of the EU there is a prevailing opinion that article 50 is only step one and then step two comes the real agreement and in fact plenty of member states seem to disagree so in this respect article 50 clearly can be used also to define the relationship in the future and if that is done then we can also have a long-term vision of what citizenship will entail for UK citizens and for the EU citizens in the UK in terms of granting the rights already under article 50. Professor Barnard, do you think it can be done in two years? I certainly think the point of resolving what is the situation for those who have already moved can be done in within the two years and of course it's worth remembering it won't be two years because the negotiations will actually only be about 15 to 18 months because there's time needed to get it through the agreement through the European Parliament. I should just say as a footnote we've talked quite a lot about position of people who've been here for a long time so five years plus what will be much trickier to negotiate is what about people who've been here for less than five years and particularly people who are here on a rather peripatetic basis who don't have a consistent profile of work or self-employment and how will we operationalise the recognition of those people or do we take a very simple approach and say everyone who is an EU national or EA national who's here on a particular date will enjoy the rights of remote irrespective of how long they've been here before. Of course that goes against the grain of trying to control migration but it would reduce the bureaucracy quite considerably. I don't think most of the questions of future rights will be solved under the strict article 15 negotiations that's to say including in two and a half years time. I think there are elements that might be might be fished out and perhaps we've identified some of them today but those will be the exceptions and I just would say that on both sides from the EU and the British side there are enormously powerful political constraints which might well lead to the sense nothing can be agreed till everything's been agreed. Paradoxically I think that would be reflecting the strength of the EU position and the weakness of the British position but by a different process of reasoning they may come to a similar conclusion. Thank you very much and thank you to all our witnesses today and we'll now have a short suspension.