Thread by @StevePeers

1) OK, there are two competing bad legal takes on the position of @BritishInEurope after Brexit.

a) the bad EU won't guarantee their residence
b) the good EU can't guarantee their residence because it doesn't have competence to do so.

2) The starting point is that the EU does have competence over non-EU migration - not just Schengen (visas and borders) and asylum, but also legal and illegal migration - but it's shared.

That means that if the EU doesn't act, its Member States have power to do so.

3) To that end, yesterday's Commission no deal paper points out that *some* EU law on non-EU citizens will apply to @BritishInEurope and encourages Member States to give residence permits to "all" UK citizens under national or EU law:

https://twitter.com/StevePeers/status/1075364218533101569

4) So the "bad EU wants to make @BritishInEurope all illegal" take is the exact opposite of reality. As you can see, the Commission literally said that "all" of them should receive residence permits, but in some cases it will be up to Member States' law to govern the details.

5) But the defence that "the EU has no power here" doesn't work either. As you can see, the Commission *also* referred to EU law partly governing the issue. That's the EU legislation on long-term non-EU residents: eur-lex.europa.eu/legal-content/…
This co-exists with national law (Art 13)

6) Some are very keen to "explain" to me that I'm wrong, the EU has no competence on non-EU citizens.

Here's the three-volume commentary I co-authored: brill.com/view/package/9…

The first volume of my book on EU Justice & Home Affairs Law (4th edition): global.oup.com/academic/produ…

7) And for primary sources, here's the page on the Commission's DG Home site that has links to the EU legislation on non-EU legal migration: ec.europa.eu/home-affairs/w…

8) I realise some people will find this less persuasive than something on the Internet which they would prefer to believe, but I can't help them with that.

The confusion may be partly due to the UK having an opt-out, so *UK* law on non-EU citizens isn't affected much by EU law.

9) The problem with the Commission approach is twofold. First, while it encourages Member States to give all UK citizens residence permits, their status may fall short of what they would have under EU free movement law, ie conditions of stay and equal treatment rights are less.

10) Secondly, EU legislation on this issue would be a better approach, as it would protect their rights uniformly, guarantee acquired rights and retain free movement within the EU27. I proposed a text for this here: eulawanalysis.blogspot.com/2018/07/uk-cit…

11) This would be rushed; but the Commission proposed yesterday to rush new laws on transport.

Alternatively there could be a ring-fenced treaty for both @BritishInEurope and @The3Million as suggested here: eulawanalysis.blogspot.com/2018/03/ending…

12) There's also an argument that "UK citizens can't be deprived of EU citizenship".

The majority view (which I share) is this argument doesn't work, as only nationals of Member States can be citizens of the EU. But I expect this will be litigated, and I'd be happy to be wrong.

13) Short version: EU can regulate UK citizens' position in the EU27, but partly won't. In absence of EU action, it's Member States' responsibility. The Commission should urge them to do more.
For comparison, on the no deal implications for @The3Million: eulawanalysis.blogspot.com/2018/12/starin…