Anyone concerned with the long term future of the NHS should be very worried

Those working in the NHS must hope that the British government can reach a deal that provides sufficient reassurance to European citizens, whether they be British living on the continent or citizens of the remaining EU Member States living in the UK. Unfortunately, the government’s current proposals fail completely in this respect.

This is important for at least two reasons. Firstly, any failure to reach an agreement could leave many British citizens without access to healthcare in the rest of Europe. The implications for the many British pensioners retiring to countries such as France and Spain are particularly worrying. Given their age, and in many cases, pre-existing conditions, private health insurance is likely to be unaffordable. Should they be forced to return to the UK it will place an enormous burden on an already struggling NHS and social care system. Secondly, no deal would threaten the supply of the many health workers on which the NHS depends. The system for mutual recognition of qualifications and, more importantly, the mechanisms for exchange of information on those whose performance gives rise to concern, will be threatened. However, the biggest threat is likely to be the unwillingness of EU citizens to come to the UK to work and, for those already here, to stay, given the many uncertainties. Recent surveys suggest that a high proportion of the most highly skilled EU workers in the UK are seriously considering leaving.

Given these concerns, the approach taken by the British government offers little reassurance. The prime minister, Theresa May used a European Council dinner, attended by the heads of government of all member states, to announce her proposals on citizens’ rights. Those present were, to say the least, surprised, for several reasons.

Firstly, she seemed unaware that the European Union had already made detailed proposals over a month earlier. Nothing that she or her cabinet colleagues had said indicated any recognition of this. Surely, those present thought, she would at least seek to respond to the EU’s proposals rather than starting from scratch?

Secondly, what had taken her so long, given that those earlier proposals had been on the table for weeks?

Thirdly, why was she setting out her ideas to those at the dinner? Didn’t she realise that there is a negotiating process underway at which any proposals should be tabled? After all, they reasoned, the first meeting between David Davis, representing the UK, and Michel Barnier, representing the EU, had received lots of attention in the British newspapers, even if it had been extremely brief because of lack of preparation on the British side. All of the EU institutions and member states had been absolutely clear that they would not negotiate outside this process, despite determined efforts by the UK to strike separate deals.

Finally, where were the details? They have all seen how the British government can contradict itself on Brexit, sometimes within minutes. The least they would expect would be something in writing. But this would not be available until four days later.

Expectations of what would appear in the written document were high, given how it had been trailed in the British media as a “very generous offer”. This was not, however, how it was seen in the rest of Europe. British expats described it as “pathetic”. Donald Tusk, President of the European Council said it was “below our expectations”, while Jean-Claude Juncker, President of the European Commission, said it was “not sufficient”. However, the main problem was a lack of any detail, encouraging growing frustration across Europe. As one EU ambassador in London noted, he could not do his job of informing his government as “There is no clear information, just information on what [UK] politicians will not accept.”

Once again, there seemed to be a fundamental misunderstanding between the British government and everyone else. Before the referendum, the Leave campaign had consistently said that EU and UK citizens would keep what are termed “acquired rights”, so that they would experience no material change. This position was accepted by the EU. No-one should be worse off than they were before Brexit. In marked contrast, the UK has proposed arrangements that, while leaving EU citizens in (largely) the same position as UK nationals post-Brexit, would strip both groups of many of their rights as EU citizens. UK citizens living in the rest of the EU are barely mentioned. In other words, everyone is worse off. Unfortunately, because the British proposals ignore the earlier EU ones, it is difficult to compare them exactly, a problem exacerbated by the vagueness and lack of clear definitions in the former. However, it is possible to identify a number of major problems, as follows.

The first, and the one that has attracted most attention, is how any agreement will be safeguarded and any disputes resolved. The EU argues for judicial oversight by the European Court of Justice. The UK argued that it should be British courts although, subsequently, has been hinting at various other vague arrangements with involvement of both sides. Many of the terms used in the British document will have to be defined and there will undoubtedly be ambiguities. The problem with the former is that there would be two legal systems ruling on essentially the same law. This is fine as long as they agree. It is not if they don’t. If neither side is willing to accept rulings from the other system there will be an impasse. And it seems very unlikely that the 27 remaining EU member states will accept case law developed by post-Brexit British courts. This is, however, a problem that will face every aspect of life in the UK where there is some interaction with the EU.

Of more immediate concern is how EU citizens already in the UK can establish a right to stay. They have been told that they can apply for “settled status” if they have been living here for 5 years. The government promises to simplify the process and, specifically, to remove its requirement that those who are self-employed had “comprehensive sickness insurance.” This is not, however, as generous as it seems. Firstly, although the UK had insisted that the insurance requirement was imposed by the EU, the European commission was actually in the process of initiating action against the UK for imposing this rule, which is believed to be illegal under EU law. Secondly, the process for establishing permanent leave to remain in other EU member states has long been vastly simpler and less expensive than in the UK. The UK has a poor track record of simplifying procedures, offering little reassurance that it will succeed this time. Finally, those who have already spent vast amounts of time, effort, and money to obtain leave to remain, including several of my colleagues, have been told that this was wasted and they will have to apply all over again. Unsurprisingly, some of these exceptionally talented people are questioning why they should stay.

There is, of course, no absolute guarantee that even if they been living here that they will be able to remain. In particular, they must undergo “an assessment of conduct and criminality, including not being considered a threat to the UK.” There is no indication about the threshold involved.

A further problem arises if someone who has obtained “settled status” then moves abroad for work or study for two years or more. Others, who have lived here in the past but have moved temporarily abroad, may not be able to return, a particular concern for those who invested in property here. This would be the situation with, for example, a professor of tropical medicine based in London who was posted to Nairobi or Atlanta for two years, a situation that is far from inconceivable.

Then there is the requirement for EU citizens with settled status to register, although whether this will involve issuing an identity card or how much it will cost is unclear. Ironically, the Brexit Secretary David Davis once resigned his seat in protest against identity cards, making specific reference

There are some good things in the British proposals. They do seem to want to continue the European Health Insurance Card scheme and provide some protection for pensioners. This is hardly surprising, given the problems that would face if this group returned to the UK. However, the legal and technical challenges of continuing these schemes, given that they fall squarely within European law, and are therefore overseen by the European Court of Justice, are considerable.

As with my previous blogs on Brexit, while much has happened, there has still been virtually no progress even though a year has passed since the referendum. Indeed, it is arguable that the British position is now even less clear than it was then. The major disagreements within the Cabinet are now visible to everyone. Indeed, even in the short period between writing this blog and submitting it, they became even more apparent. The Labour Party is also split from top to bottom. Meanwhile, across Europe our colleagues look on with wonderment, asking how a once great country could have come to this. This continued uncertainty, and indeed evidence of gross incompetence on the UK site, is deeply unsettling for EU citizens, including many health professionals, in the UK. It is also causing deep concern to UK citizens in the EU. Anyone concerned with the long term future of the NHS should be very worried indeed.

Martin McKee is professor of European public health at the London School of Hygiene and Tropical Medicine.