After Brexit: Could bilateral agreements facilitate the free movement of persons? EPC Discussion Paper 07/09/2021.

Acosta, Diego (2021) After Brexit: Could bilateral agreements facilitate the free movement of persons? EPC Discussion Paper 07/09/2021. [Discussion Paper]

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Abstract

Some of the millions of EU nationals in the UK and British nationals in the EU are already suffering from Brexit’s drastic curtailment of the right to free movement. How can migration now be governed and facilitated between the two parties? Although an EU-wide agreement with the UK that ensures free movement remains the ideal solution, it is currently unrealistic. This calls for an evaluation of possible alternatives. Bilateral agreements should be explored and examined as a possible alternative to an EU-wide agreement with the UK to facilitate and govern cross-border mobility. Various bilateral free movement agreements across Europe show that their use is not only legal but also habitual. They offer flexibility when it comes to the rights of entry, residency and work, as well as other important rights. And they could also be used as a foundation upon which to build an agreement between the EU as a whole and the UK, if not to facilitate the rebuilding of mutual trust. Migration law expert Diego Acosta makes a further case for Spain being the first possible candidate for a post-Brexit bilateral free movement agreement concluded between an EU member state and the UK. Spain is the most important EU destination for British emigrants, and British migrants residing in Spain constitute the latter’s third-largest non-national population. In turn, the UK is the most important migrant destination for Spanish nationals worldwide, who represent the fifth-largest migrant group from the EU. He offers concrete suggestions as to what a bilateral treaty between Spain and the UK could include. In addition, governments of EU member states that have important reciprocal migration flows with the UK, as well as the UK government, should consider the following recommendations when exploring the possibility of adopting bilateral agreements on migration: The negotiating parties should place the rights and interests of both short-term and long-term British and European nationals residing in each other’s territory at the centre stage. In negotiating a possible treaty, both the respective EU member state (e.g. Spain) and the UK should take the pre-Brexit status quo as the departing point. The status of mobile nationals could be improved beyond that enjoyed by EU citizens pre-Brexit. For example, political rights could be extended beyond the municipal level. Certain categories of individuals (e.g. retirees, young workers) could benefit from special provisions which also depart from the pre-Brexit situation.

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