Earlier this month, The House of Lords EU Justice Sub-Committee, under the Chairmanship of Baroness Kennedy of The Shaws, continued its short inquiry into the consequences of Brexit for the rights of EU nationals in the UK, and for UK nationals in other EU Member States. The Committee heard evidence from barrister Anthony Speaight QC and leading academic Professor Catherine Barnard.
Nationals of any EU Member State are deemed citizens of the European Union and therefore enjoy the same treatment under EU law, irrespective of their nationality, anywhere within the EU. The loss of this fundamental status, as a consequence of leaving the EU, leaves many EU nationals in the UK and UK nationals in other Member States with their EU citizenship rights, such as residency rights, uncertain.
This month’s ‘Your Thoughts’ is dedicated to answering the never-ending questions circling the effects of Brexit. As the UK embarks on a decision that somewhat surprised the entire world, the Government has to consider several factors when moving the UK out of the EU; a major factor that remains prevalent, is immigration and the movement of EU members. The ever-important question, however, is how will those who currently live in the UK be affected. Some have already considered venturing outside the UK, whereas those who want to stay, fear they may not be welcome to do so.
To shed light on some of these issues, we reached out to several experts and professionals in their field, who have given particular insight into how the rights of EU citizens will be preserved and what Brexit could possibly imply for EU nationals currently residing in the UK.
Rustom Tata, Chairman of DMH Stallard:
The answer depends on many inter-related factors, but my view is that it will be a qualified ‘yes’, with a distinction being drawn between those settled here and newer arrivals.
Economic and labour market imperatives for the UK mean that there will continue to be the need for overseas workers, in a variety of skilled, semi-skilled, and lower skilled roles. Certainly, away from the glamour of city banking and finance, the “Cinderellas” of construction, hospitality and care have all loudly trumpeted their dependence on EU workers.
Unless the UK Government is, for instance, going to introduce a major overhaul to the apprentice schemes already in place, so as to ensure that there will be a pool of skilled, motivated individuals to fill the gaps which will no longer be filled by EU workers, there will be an economic imperative to allow entry to the UK.
In return for a somewhat limited access to the EU free market, we could well see the freedom of movement of people pared down, so as to only relate to those who are economically active in some way.
This could be narrowly defined as ‘workers’ – that is those with a job offer, and probably those who can show that they are actively looking for a job. It may be that people in the latter category would only have the right to remain in the UK for a finite period, or that they would need to hold skills or qualifications identified by the UK Government as in short supply.
What about those already here? One strong possibility is that EU nationals in the UK (and whether or not if they are in work) at a specified date, will be able to remain and compete for employment in the UK alongside UK nationals.
From the work we are doing with clients across a number of sectors, it is clear that HR teams are reviewing the composition of their organisation’s workforce, and trying to plan for the contingency of a reduced pool of labour.
However, there is already concern that EU nationals currently in the UK are considering options outside of the UK, given the uncertainty that they face. Some are relocating abroad or actively looking for their next role within another EU country. People facing such uncertainty and without other connection or reason to stay in the UK may well choose to leave.
Sophie Barrett-Brown, Head of the UK Practice at Laura Devine Solicitors:
Following the EU referendum, EEA nationals and their families remain uncertain about their future in the UK – posing real concerns for many UK employers.
Until the UK actually leaves the EU – at least 2 years from now – it remains bound to recognise free movement rights. But this is cold comfort to many of the 3 million EU nationals already in the UK and their employers, as they struggle to plan for the future.
Although the government seems likely to put in place arrangements for equivalent permission to be granted under UK law when EU law rights evaporate, it is unclear what this will look like. What type of permission to remain will be granted? Will this be for those who have already acquired permanent residence, those in the UK by the date of the referendum, the date the UK actually leaves the EU, or some intervening date? And what will the process be?
Those who have already acquired permanent residence, having lived and exercised Treaty rights in the UK for five years, are likely to be granted equivalent indefinite status. Those who have not yet acquired permanent residence but are exercising Treaty rights before the cut-off date are likely to be given either indefinite or temporary status. EU nationals not exercising a Treaty right before the possible cut-off date face the greatest uncertainty.
The vast majority of EU nationals in the UK are essentially undocumented – as they’ve never had any need to seek Home Office documentation. So, some form of application process to identify cases where replacement rights under UK law are to be conferred seems likely. With 3 million already in the UK, an en masse rush to apply stands to be a recipe for administrative chaos.
This rush has already begun, with many applying for registration certificates and permanent residence certificates so that they are already identified as EU nationals, with recognised rights of residence in the UK, when the time comes.
Remarkably, the process of applying for a document recognising Treaty rights (a right, not a privilege) is extraordinarily cumbersome and slow. The Home Office has sought to implement some recent improvements, however at the same time problems remain or increased hurdles have been raised. Applications usually take 6 months to be considered, require excessive documentation and are frequently incorrectly rejected, causing unnecessary complication and delay.
For companies, not only is there the uncertainty of planning for their current EU workforce, but the unknown landscape for future assignees and new hires from the EU post-Brexit.
The sooner clarity can be achieved, the better for all.
Henry Warwick, Barrister, Henderson Chambers:
The extent to which rights of EU citizens living in the UK will be preserved following Brexit is unknown. But it is becoming clear that the position will be closely linked to the fate of the one to two million British citizens who live elsewhere in the EU. Led by Patrick Green QC, I represent a group of clients who made the case for British citizens overseas in the much publicised ‘Article 50’ judicial review (R (Miller & anor) v. Secretary of State for Exiting the European Union). My clients are seeking to ensure their parallel concerns are considered.
November’s High Court judgment in this case addressed the constitutional position as to the notification process under Article 50 of the Lisbon Treaty. The basis of the decision reached was that Parliament had conferred rights upon citizens by enacting the European Communities Act 1972. The effect of giving notice is that many such rights, including those relied upon by non-British EU nationals in the UK and British expatriates, will be lost and cannot be replicated by UK legislation. This is why the Court ruled that there was no prerogative power to give notice, and why Parliamentary approval is essential.
The fundamental rights both groups enjoy derive from their status as EU Citizens; they include rights arising under the Treaties, rights implemented in national law pursuant to Directive EC 2004/38, and rights guaranteed by the Charter on Fundamental Rights. The effect of their removal will be profound: British expatriates, for example, rely not only upon their ability to live in another member state, but also to access public services including healthcare, to work and establish businesses and to equal treatment, which we take for granted.
Prior to the referendum, the government acknowledged these would not be acquired rights as a matter of international law. It has since engaged in bilateral discussions, as talks with the Commission are currently banned by order of its President, Jean-Claude Juncker, a measure we are also challenging under Article 263 TEU in the General Court in Luxembourg. It is clear so far that the rights of EU citizens living in the UK will be dependent upon rights being granted reciprocally to British citizens living in Europe. That in turn will turn upon the success of the Government in its negotiations. There is therefore a very real risk that many of the rights of EU citizens in the UK will not be preserved post-Brexit.
Michael Hatchwell, Officer and Director at Globalaw:
As it currently stands, it would be against the law to reduce or diminish the rights of EU citizens living in the UK. However, once the UK has officially left the EU and Brexit has been fully enacted, the laws may be changed to reflect this new political situation; EU citizens living in the UK will no longer fall under a special legal category, but could instead become grouped with all other or certain categories of other foreigners living in the UK.
Overall, it seems unlikely that the rights of EU citizens to be treated as UK citizens will be stripped in their entirety as result of Brexit.
As regards to property ownership (real estate and companies) there are no real restrictions on foreign ownership of UK assets, so there is no reason why EU citizens or entities will be worse off in this regard after Brexit. However, the continuation of other key rights associated with EU membership, such as the free movement of people, is more difficult to predict.
The issues and considerations relating to free movement of people, namely: immigration, visas, the right to travel, the right to work and more, were a major focus and at the forefront of the Brexit debate. Currently, we see that these topics are now open for public debate and renegotiation within the public sphere. What remains to be determined is the impact that these debates, driven by popular sentiment, will have on the laws of the UK. It is worth noting that the UK economy is dependent upon hundreds of thousands, if not millions, of workers from the EU who currently work in the country.
Groups such as the 3 Million Forum, a group of EU citizens living in Britain have announced that they will launch a formal campaign for a new law to protect their rights post-Brexit. Is there any reason why their rights are less important than a British citizen? After all they came here legally and openly as part of the UK joining the EU.
One way to look at this is through the lens of the recent public reaction to the High Court’s ruling that Parliament must vote on triggering Brexit. This ruling, which frankly was entirely predictable, has led to pro-Brexiters claiming this is contrary to the will of the people as the ruling may be used to delay Brexit. On the first day of the appeal, December 5th, Nigel Farage has announced that he will lead a 100,000-strong march to the Supreme Court in protest to any delays to the government’s plans to trigger Brexit.
The appeal decision will be important. I do not anticipate that the original decision will be changed. The referendum was a crude and simplistic way of seeking a vote on a matter of very great complexity and it is inevitable, especially when no one had considered the consequences of the Brexit camp winning, that a huge mess would ensue. Referenda appear democratic but absent a clear constitutional path as to consequences of any vote, the result is inevitably confusion and uncertainty.
There is a long way to go before there will be real clarity on such complex issues. In the meantime, the status quo prevails.
