Professor Steve Peers
Yesterday’s ‘joint report’ on the progress in the Brexit negotiations (accompanied by a Commission paper and a joint technical note on EU27 and UK citizens’ rights) amounts to an informal deal to proceed to the second phase of Brexit talks. That second phase will focus on a transition period (discussed here; and see the draft EU negotiation guidelines here) and the framework for the post-Brexit relationship between the UK and the EU.
But for now the joint report is the main issue. It’s a political document, not a legal one, but it’s practically very relevant to the formal legal process of drawing up the UK’s withdrawal agreement from the EU, as it sets out many agreed details concerning key parts of that agreement: citizens’ rights, Irish border issues, the financial settlement, and ‘winding up’ rules. Some points still need to be agreed or fleshed out; the formal legal text of the withdrawal agreement must still be drafted; and any agreement on what happens in the transition period will have to be added to the withdrawal agreement. Yet yesterday’s deal is undeniably a milestone, making it rather more likely that a final complete withdrawal agreement will be agreed.
This blog post focusses on the citizens’ rights points in the deal; I hope to return to examine the other issues in more detail soon.
Scope of the agreement
The first point to note is that citizens’ rights are reciprocal: they will cover both EU27 citizens in the UK and UK citizens in the EU27. Much of the public discussion of this issue focusses on the former but overlooks the latter; and it is arguable that as result the joint report overlooks them somewhat too. The UK has come some distance towards the EU27 position on the issues (see discussion of the parties’ earlier positions here) but there are still some elements of compromise.
The joint report indicates that the parties’ agreement does not cover all of their citizens, but only those who have ‘exercised free movement rights by the specified date’. That date is agreed to be Brexit Day (the UK had originally suggested the date of sending the Article 50 notice, but always indicated its willingness to negotiate this point). So the withdrawal agreement will apply to those resident on that date and also (implicitly) those who had previously been resident but departed briefly from the country they were living in, in accordance with EU free movement law.
More precisely, the personal scope of the agreement will be those who reside legally on the territory by Brexit Day (raising the question of how to define ‘legally’), and their family members who are defined by the EU citizens’ Directive. Those working as frontier workers on Brexit Day (as defined in EU law) are also covered. At first sight, this implicitly rules out family members who are instead covered by the free movement of workers Regulation (see, for instance, the Czop and Punakova case), as well as those who returned to a country after leaving it (so-called Surinder Singh cases; see discussion of the relevant case law here), and dual citizens, whose position is (like Surinder Singh cases) defined by analogy with the citizens’ Directive (see discussion of the relevant recent ECJ ruling here). However, the joint technical note refers more generally to those who have moved in accordance with the Treaties – suggesting instead that the final withdrawal agreement will cover such people.
On the other hand, there’s nothing to suggest that non-EU family members of British citizens who live in the UK, who are covered by the ECJ’s Zambrano case law will be covered (for further explanation of this category of people, see the discussion of the most recent case law here).
Several issues are explicitly left to later negotiation, according to the joint technical note: the further free movement rights of UK citizens living in the EU27; the recognition of post-Brexit qualifications; future healthcare arrangements (such as the EHIC card for UK citizens who visit the EU after Brexit, and vice versa); lawyers practicing under home state title; and posted workers.
For those who seek to be joined by family members after Brexit Day, there are limitations compared to the current rules. The current rules on admission of core family members (spouse, registered partner, children, dependent parents et al) will apply to those family members who are related to the relevant EU27 or UK nationals on Brexit Day already. For those who were not related on Brexit Day, national law will apply. This will usually be less generous, either on the UK or the EU27 side (the joint report fails to mention that 25 of the EU27 – all except Ireland and Denmark – are bound by an EU Directive on family reunion, which sets minimum standards for the admission of family members of non-EU citizens). As an exception, however, such national law will not apply to children born or adopted after Brexit Day. In short, anyone whose possible future family member’s status might be affected by the change in rules should probably start shopping for wedding rings – but can keep buying condoms if they want to.
There’s another change relating to extended family members. Under the EU citizens’ Directive, Member States must facilitate the entry of EU citizens’ non-registered partners, as well as ‘any other family members’ who are dependents, members or the household, or being cared for by the EU national sponsor. As the ECJ clarified in Rahman, this isn’t an obligation to admit all such extended family members, but to consider applications for their admissions and justify any refusal to admit. But the joint report states that even this limited right will be curtailed, applying to partners only, not the other family members referred to. The partnership must also exist and be durable on Brexit Day; again partnerships which only start – or only become durable – after that date won’t be covered.
So the agreement will definitely lower standards that currently apply to family reunion for the persons concerned, in both the UK and the EU27. For instance, the UK has strict income requirements for the sponsors of family members, which will apply to EU27 citizens in the UK after Brexit Day, if they only married their spouse after that date. (Note that these rules will apply regardless of whether the incoming spouse is non-EU or an EU citizen; and they will also make it harder for many UK citizens to bring an EU spouse to this country). On the EU27 side, ECJ case law prohibits a high income threshold for family reunion (see the Chakroun judgment), but waiting periods before admission are possible. Discrimination on grounds of nationality will be banned, but in this context this means migrants will be treated equally badly to nationals.
Next, the joint report sets out agreed rules on residence status. The parties may choose to require UK or EU27 citizens respectively to apply for a new residence status under national law. This is an implicit reference to the UK intention to require all EU citizens to apply for ‘settled status’ after Brexit, although the EU27 may, if they choose, impose a parallel requirement on resident UK citizens. There are detailed rules on simplifying the application process, which in principle apply to both sides but are actually focussed on the UK side – as confirmed by the footnote referring to the recent UK technical paper on applying EU27 citizens’ rights after Brexit. The risk here is that the practical difficulties which UK citizens in the EU27 might face in transferring to national immigration status in those Member States is being ignored. And again, the EU law on non-EU citizens which is relevant for some concerned – the long-term residents’ Directive – goes unmentioned here.
In fact, I recently met a UK civil servant who admitted that the UK side is not interested in negotiating about such details, despite the UK government’s public expressions of concern for UK citizens in the EU27. The awkward fact here is that, due to the inherent reciprocity in this aspect of the talks, the UK government could not be an effective advocate for retaining UK citizens’ rights in the EU27 – because of its primary interest was in curtailing rights of EU27 citizens in the UK. For instance, it was effectively the UK government which pushed to reduce the future family reunion rights of UK citizens in the EU27, because of its desire to apply restrictive UK immigration law to family reunion for EU27 citizens in the UK in future.
The only solution here for UK citizens in the EU27 is to push for the EU side to remember their rights – either by reopening this part of the withdrawal agreement or at least by pushing for soft or hard law to be agreed within the EU27 side which clarifies their position and ensures their rights in more detail in EU Member States after Brexit.
More fundamentally, the EU27 side has conceded to the UK on the very idea of transferring to national status. There’s a grace period of two years to apply for such national status – but what happens to people who don’t apply in time? A genuine notion of ‘acquired rights’ would mean, at the very least, citizens retaining exactly the same status they had on Brexit Day; this might also extend to continuing to acquire status that was in the process of acquisition on Brexit Day. But instead the joint report allows parties to insist on a transfer to a national status – at the UK’s behest. This (self-)imposes a significant administrative burden upon the UK, and the recent error rate of Home Office officials in dealing with EU citizens and non-EU citizens alike does not inspire confidence. And, as noted already, parallel concerns may arise wherever UK citizens are required to transfer to a national status in EU27 states.
The prospect of transferring status is moreover restricted for some by the concession to the UK of the possibility of removing people deemed to be abusing rights even before they have completed judicial redress procedures, as a derogation from existing protection. It should be noted that the ECJ has already ruled (in the 2014 McCarthy judgment, discussed here) that the ‘abuse of rights’ notion cannot be applied to EU citizens’ family members as easily as the UK government would like. But this still leaves the UK government leeway to argue that others, such as homeless EU27 citizens, are covered by the concept and so have less judicial protection once the withdrawal agreement applies.
Substantively, the joint report says that the current rules in the EU citizens’ directive will apply to residence rights and permanent residence. This leaves open the possibility of refusing permanent residence due to not having ‘comprehensive sickness insurance’ (CSI) – which in the UK government’s view means that many EU citizens who are stay-at-home parents or carers fail to qualify, since NHS coverage is not enough. Although the UK government has promised to waive this requirement unilaterally, the joint report implicitly accepts that this will not be legally binding as part of the withdrawal agreement, instead being simply the exercise of the option to apply more favourable rules than the Directive requires. The future status of these vulnerable people could therefore be changed at the whim of the UK government.
Those who already have a documented form of permanent residence will get the new national status free of charge, subject only to a security and criminality check, and verification of identity and residence. Implicitly those who are entitled to permanent residence but who do not have a document to prove it as of Brexit Day will not be protected by such guarantees. Nor will those whom the UK deems not entitled to permanent residence yet – such as the vulnerable people who don’t have CSI as interpreted by the government. It’s not clear what guarantees will apply to these people instead.
The systematic checks on criminality would be prohibited under the citizens’ Directive, but will be allowed under the withdrawal agreement. Moreover, the substantive threshold for refusing status will change: conduct after Brexit Day will lead to immigration law consequences in accordance with national law, rather than EU free movement law. In some cases, this will mean that offences which would not lead to denial of status under free movement law will lead to loss of status under national law.
Permanent residence rights obtained under the withdrawal agreement will, however, be retained for up to five years’ departure – rather than two years’ departure under the EU citizens’ Directive. Of course, this is in the context of the loss of the underlying free movement rights – which were previously available as a backup if the right to permanent residence was lost.
The joint report states that UK and EU27 citizens retain rights under EU social security legislation – including the EHIC health insurance card – if they have moved before Brexit Day. There will be an agreed process (yet to be defined) on incorporating future amendments to EU social security law into the withdrawal agreement. (Usually a Joint Committee of some kind, made up of officials of parties to a treaty, is given the power to adopt decisions to amend that treaty in cases like these).
Equal treatment as regards access to healthcare and social assistance will be guaranteed in accordance with existing EU legislation – so the limits on access to such benefits, as discussed here, will apply too. Qualifications for lawyers and other regulated professions that have been recognised before Brexit Day will still be recognised afterwards, and applications for recognition of qualifications lodged before Brexit Day will still be processed afterwards.
Enforcement of rights
The joint report states that the withdrawal agreement will go into some detail on enforcement of citizens’ rights – far more so than most international treaties. Citizens must be able to ‘rely directly on their rights’ in the agreement and have laws inconsistent with the agreement disapplied: these are implicit references to the EU law concepts of direct effect and supremacy. There’s no limit in time to these provisions.
More precisely, the UK has committed to introduce domestic legislation, which will refer explicitly to the withdrawal agreement and incorporate citizens’ rights directly in national law. This will prevail over ‘inconsistent or incompatible legislation’, unless Parliament expressly repeals the Act giving effect to the withdrawal agreement. This entrenches (but only in the specific field of citizens’ rights) the existing rule of UK constitutional law relating to the effect of EU law in the UK legal system: the European Communities Act gave the courts the (otherwise constitutionally impossible) power to set aside conflicting Acts of Parliament; implied repeal of that Act by later Acts of Parliament is not possible, but express repeal is.
EU27 citizens may be suspicious of Parliament’s power of express repeal regarding Act giving effect to the withdrawal agreement, but it represents no change from the status quo as an EU Member State. It would be constitutionally (and surely politically) impossible to ask the UK to overrule this power, giving the withdrawal agreement some sort of super-hierarchical legal status. Subject to vague murmurings from the courts, for the UK* the only basic law is that there is no basic law. (*except Scotland).
But what happens if the UK parliament did expressly repeal EU27 citizens’ rights? That would then be a matter for the dispute settlement provisions of the withdrawal agreement, which are likely to provide for some sort of sanction at international level in the event that, following some form of arbitration process, it is found that either side has breached its obligations under the agreement. The dispute settlement issue will be part of the ‘governance’ aspects of the withdrawal agreement, which have yet to be agreed; but the joint report explicitly notes that the aspects of citizens’ rights agreed so far is ‘without prejudice’ to the further discussion of such issues. Ideally there will be some sort of at least indirect access by EU27 and UK citizens to this dispute settlement process, for instance by means of a complaint and request to trigger that system that has to be considered and answered by the UK or EU authorities.
As for the EU27 side, the joint report states simply that the withdrawal agreement will bind the EU and its Member States in accordance with the Treaties. This does not as such give effect to the withdrawal agreement in the domestic law of the EU and its Member States, but it is probably assumed that the withdrawal agreement will have direct effect in EU law. ECJ case law suggests that some international treaties have direct effect in EU law, but some do not, depending on the nature and purpose of each agreement.
By comparison with Demirel, where the ECJ accepted direct effect for the EU/Turkey association agreement that conferred fewer rights and did not guarantee reciprocal direct effect on the Turkish side, the withdrawal agreement is very likely to satisfy the test for direct effect in EU law. But for the avoidance of any doubt – and to ensure reciprocity from the outset – the withdrawal agreement should explicitly set out both parties’ intention to secure direct effect and supremacy of the citizens’ rights rules in their respective legal orders (on the relevance of the parties’ intentions, see Kupferberg).
Jurisdiction of the ECJ
It would be possible to leave it to the courts of each side to guarantee rights established by the withdrawal agreement, particularly in light of the strong provisions on enforcement of those rights in domestic legal systems. However, the EU27 side was particularly keen to ensure some continuing role for the ECJ.
There are several aspects to the ECJ’s role. First of all, where the withdrawal agreement refers to concepts of EU law – and the joint report indicates that it often will – those concepts will be interpreted in accordance with ECJ case law delivered before Brexit Day. This is consistent with the EU Withdrawal Bill before the UK Parliament (discussed here), although that Bill also provides that the UK Parliament, executive or Supreme Court might decide to depart from such ‘retained’ case law. As discussed further above, the parties have agreed to limit such departures as regards the status of EU27 citizens in the UK.
There’s no limit in time to the obligation to rely on this pre-existing case law, and doing so will ensure greater legal certainty. For instance, there will be no need, to litigate from scratch how to define an EU27 or UK ‘worker’ or when a relevant family member is ‘dependent’, since there is ECJ case law to rely upon (for instance, see here and here respectively).
Secondly, the joint report states that the UK courts will have to have ‘due regard’ to ECJ judgments issued after Brexit Day. This goes further than the UK’s Withdrawal Bill, which would only give an option to courts in the UK to take account of the ECJ’s post-Brexit case law; although (as discussed here) the UK government had previously signalled its willingness to agree to such an approach as regards civil law. Again, there’s no limit in time to this obligation.
Thirdly, the withdrawal agreement should specify that courts or tribunals in the UK could ask the ECJ to rule on a provision of the withdrawal agreement concerning citizens’ rights, if there is no clear case law on the issue, if the litigation brought (presumably before a court in the UK) within a period of eight years after the ‘date of application’ (a concept not further defined) of the citizens’ rights part of the agreement. Note that this differs from the current rules in that the UK Supreme Court will not be obliged to send questions to the ECJ; although it retains the current rule that any other national court or tribunal may do so. The joint report does not state that the ECJ’s rulings in such cases will bind the national court, although the ECJ has made clear that whenever it has jurisdiction, even as regards non-EU countries, its rulings must be binding (see Opinion 1/00, for instance).
Fourthly, in common with some other international treaties which the EU has signed, there will be an exchange of case law between the two sides, and the right of intervention of the UK before the ECJ. Unusually, there will be a parallel right of the Commission to intervene before UK courts and tribunals.
Finally, the UK will set up an ‘independent national authority’ to monitor the implementation of this part of the withdrawal agreement, with the details to be discussed further in the next phase. It remains to be seen whether it will have the same power as the Commission has on the EU27 side to consider complaints from individuals and to bring proceedings in the courts in the UK to enforce EU27 citizens’ rights. There’s no time limit on the final two points.
Taken as a whole, these provisions are remarkably similar to the rules set out in the Treaty establishing the European Economic Area, which links Norway, Iceland and Liechtenstein to EU internal market law and some other EU policies. Most notably, the rules on previous and subsequent ECJ case law are identical, as are the rules on exchange of case law and judicial intervention (if we substitute the courts in the UK for the EFTA Court). It’s not yet clear if the UK ‘independent authority’ will be as similar to the Commission as the EFTA Surveillance Authority is, but its very existence is a step in the direction of the EEA model. And the joint report goes further than the EEA in requiring that UK courts must be able to ask the ECJ questions (the EEA only gives EEA states an option to allow this – but then it provides for an EFTA Court instead of the ECJ). While this ‘one-country EEA’ model will only (for now) apply to the specific field of EU27 citizens’ rights, it might end up as a template also for the transitional rules and future relationship which the UK and EU27 will discuss next.
Some have suggested that any ‘special’ rights for EU27 citizens in the UK are objectionable, comparing them to the status of colonial occupiers or to the application of US gun laws in the UK. These comparisons are frankly absurd. The joint report refers only to retaining some aspects of a pre-existing immigration status. To compare keeping legally acquired status (again, reciprocally for UK citizens in the EU27) to the position of an invading power’s citizens is beyond offensive; to compare it to a foreign country’s violent constitutional quirks is simply random. And citizens of the UK’s former colonies may recall that Britain exported to them not only railways and parliaments, but also famines and massacres.
Moreover, to the extent that the joint report states that the withdrawal agreement will guarantee the acquired rights of EU27 and UK citizens’ rights, it only gives effect to what many Leave supporters purported to advocate during the referendum. In particular, a Daily Telegraph article by Leave campaigners (widely disseminated during the referendum) asserted that international law would automatically guarantee full acquired rights for UK citizens living in the EU27 states. The official Leave campaign likewise promised to guarantee ‘no less favourable rights’ for EU27 citizens in the UK. These outrageous guarantees had been promised by the very people now outraged by them.
From the opposite perspective, many EU27 and UK citizens are disappointed by the joint report. For those UK citizens who haven’t moved within the EU and who are dismayed by the thought of losing free movement rights, their complaint lies with the UK government, which assumed that the Leave vote was a vote to end the free movement of persons. For those who complain that people born in Northern Ireland will have EU free movement rights (due to their Irish citizenship) whereas most people born in the rest of the UK will not, the situation is created by Irish citizenship law; the withdrawal agreement will only recognise the existence of that rule, not create it. Of course, the distinction between UK and Irish citizenship will matter more after Brexit; but that simply brings us back to the UK government’s intention to end free movement.
As for those who have moved, there are parts of the joint report that should be welcomed, and parts where they have good grounds for concern. While the joint report does not itself create rights, that was inevitable given that the parties have decided not to ‘ring fence’ the citizens’ rights issue in a separate treaty. UK and EU27 citizens should keep lobbying for this to take place, as it would especially be necessary if the Article 50 talks subsequently collapse, as they still might (though this now seems rather less likely).
As to the substance of rights, a number of key guarantees ensuring many aspects of acquired rights will be retained are set out in the joint report. There are many important provisions on the administrative process and enforcement of rights too.
However, there are grounds for concern, as I discussed above, about the most vulnerable: the homeless who will lose effective appeal rights and the carers whose rights will depend on the fragile goodwill of the UK government – a whim which could change overnight in response to some angry vomit spewed by a tabloid newspaper. UK citizens in the EU27 are in limbo as regards future free movement rights; and because the UK government values an irrational migration target more than the family lives of working-class British citizens who fall in love with foreigners, the future family lives of lower income EU27 citizens must equally suffer.
While many EU27 citizens in the UK might prefer to keep the role of the ECJ indefinitely, there are a number of other enforcement guarantees for them in the withdrawal agreement that are not subject to any time limit. Any ECJ link with the courts of a non-EU country for any period of time is already exceptional. While the behaviour of the Home Office sometimes gives rise to understandable doubts, by definition a rule of law problem cannot be solved by demanding another court – especially a foreign court whose rulings will provoke greater opposition from nationalists than a domestic court. It needs to be solved by making the case for the rule of law – and the substantive case for EU citizens’ acquired rights – at the domestic level, coupled with an effective dispute settlement system if necessary at the international level.
Overall, the value of yesterday’s agreement also lies in the increased prospect that there will be a final deal on these issues at all – since ‘no deal’ could well leave them worse off than this planned compromise. But it is not too late to advocate for improvements that would more fully ensure that the millions of UK and EU27 citizens who moved before Brexit Day will not have their lives ruined as a result of the Brexit process.
Barnard & Peers: chapter 13; chapter 27
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