26.One of the most immediate and pressing concerns arising from Brexit relates to the residence rights of EU nationals currently in the UK and UK nationals in the EU. It is estimated that there are currently 2.9 million EU nationals resident in the UK. Just under 1.2 million UK nationals are thought to live in the 27 other EU Member States. Despite a number of appeals from politicians across the political spectrum for reassurances that the rights of those people will not be affected by Brexit, the Prime Minister has only said that she hopes to guarantee the rights of EU citizens as long as the rights of UK citizens in the rest of the EU are protected.
27.This response was repeated by the Secretary of State for Justice in her letter to us of 12 October. The Secretary of State for International Trade has reportedly described EU nationals in the UK as one of the “main cards” in Brexit negotiations. In spite of being pressed the Government has, so far, declined to give an undertaking on this issue, arguing that it would potentially undermine its negotiating position with the other EU Member States. We were told that the Government was hopeful of an early agreement on this issue and was treating it as a priority. In his oral evidence, Sir Oliver Heald told us:
You will be aware that the Prime Minister has been very clear that she sees this as a priority. She said [ … ] that she wants an “early agreement” on the status of UK nationals in Europe and EU nationals here so that, as she said in her speech to the CBI, “you and they can plan with certainty”. This is an area where an early agreement would be most welcome. It is one of those issues where we have UK citizens living in the EU and we would like to feel that their position is settled, and equally, as you say and I accept, for EU nationals here [ … ] But not to agree both sides of the issue and to agree unilateral positions is not helpful.
28.We recognise that policies on migration have become extremely contentious in many EU Member States. Many of the individual submissions that we received over the course of our inquiry were from people who were anxious about residence rights post-Brexit. Concerns were voiced from people who feared the loss of EU citizenship, from those who had retired (or wished to retire) in another EU Member State, as well as those who might not qualify for permanent residency rights in the UK. We also received submissions which urged us to “consider the impact on the hundreds of thousands of couples, and especially families, where one partner is British and the other [is] from another EU country.”
29.The actual position of such individuals is legally complicated and will depend on length of residence and other factors. The picture for both UK and EU citizens remains far from clear at this stage. The majority of relevant rights are currently set out in the 2004 Citizens’ Directive, which codified the EU legislation which deals with the free movement rights and residence rights of employed and self-employed people, students and economically inactive people.
30.Although Article 16 of the EU Citizenship Directive provides a right to permanent residence for those who have resided for a continuous period of five years in the host Member State, this is subject to the proviso that they have to have exercised their treaty rights during that time.
31.The House of Lords EU Justice Sub-Committee has received compelling evidence to the effect that some EU nationals who have been in the UK for over five years will not currently meet the criteria for permanent residence. The complexity of the rules in question has led witnesses to warn the EU Sub-Committee about the “myth” that has developed that residency could automatically be acquired after a five-year residency period.
32.Examples where the House of Lords EU Justice Sub-Committee were told issues could arise, even if an individual had been resident for five years, include the case of an elderly parent (who is an EU citizen) who came to the UK to be near their children, but who was neither dependent on them nor who had worked for five years in the UK. Such a person would never acquire the right to permanent residency in the UK under EU law because they had not exercised their treaty rights. Another example brought to the attention of the Lords Committee was certain economically inactive individuals, such as students, who did not possess either medical insurance in their own country or private medical insurance in the UK.
33.Given that Member States are not obliged to issue residence cards to EU nationals, the simple fact of registering EU nationals and proving the exercise of “treaty rights” may prove problematic. Press reports have highlighted the fact that there has been a surge in applications for permanent residence, leading to backlogs. A recent press report in the Guardian suggests that “many EU citizens have been unable to pass the paperwork test despite their legal right of residence as EU citizens.”
34.The House of Lords European Union Committee noted in its report, Brexit: acquired rights, that there was “much speculation before the referendum that EU rights would somehow be protected as ‘acquired rights’, meaning that they would continue irrespective of the UK’s withdrawal from the EU.” However, it stated that the evidence it received showed that this was not the case. It concluded that “the doctrine of acquired rights in international law is limited both in scope and enforceability, and is highly unlikely to provide meaningful protection against the loss of EU rights upon Brexit.”
35.Should no comprehensive deal on residence rights be agreed following Brexit, the rights of some EU and UK nationals may be protected under Article 8 of the ECHR. Article 8 provides as follows:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
36.These rights are in no way absolute and do not provide the same protections as offered by EU law. Notably, interferences with Article 8 rights can be justified under Article 8(2) of the ECHR in circumstances where they are in accordance with the law, in pursuit of a legitimate aim and a proportionate means of achieving that aim.
37.Richard Gordon QC and Rowena Moffatt (barristers who practise human rights law), set out the position clearly in a report, published by the Constitution Society, entitled Brexit: The Immediate Legal Consequences:
The family life limb of Article 8 may be relevant insofar as there is family life of the type protected by Article 8 between a person with former EU citizenship rights and persons who are citizens of the State in which residence is sought or who have leave to remain under domestic immigration law. Given that the EU citizen will often be able to prove prior lawful residence under EU law either as permanent residents or with a view to obtaining permanent residency, depending on the specific facts of each case, it is very likely that some EU citizens who might find themselves without a right to reside after a UK withdrawal would be able to rely successfully on Article 8 before domestic courts. Similar reasoning would apply to applications for leave to remain on the basis of Article 8 ECHR in respect of private life built up during a period of residence under the EU free movement rules. [ … ]
Each case would turn on its own particular facts (clearly, long residence and strong family connections would have the best prospects of success) but it may be thought that at least some people no longer able to benefit from EU free movement law would succeed under Article 8.
38.Although the protections offered by Article 8 are qualified, it would not be possible for the UK Government to establish a bright-line rule that would allow the deportation of EU nationals merely on the grounds that they had only been resident for a fixed period of time. As noted above, other factors, such as family connections and the residence rights of any children, would certainly be relevant and importantly each case would have to be considered on its own facts in order to judge the proportionality of a proposed deportation.
39.Professor O’Cinneide put the matter very clearly in oral evidence. He said:
There is a clear strand of European Court of Human Rights case law that says if you have become embedded in a community—that you live there for an extended time, your children go to nursery, et cetera—state interference with that embeddedness through deportation for national security reasons or immigration control or other considerations has to reach more exacting standards of objective justification. This means that EU nationals who have come here under free movement rights and have become embedded in the UK, the more embedded they are, the greater their Article 8 rights, and the greater the objective justification that the Government will have to mobilise to justify the deportation.
40.When asked whether the Government might be able to interfere with Article 8 rights on the grounds that they were negotiating with the remaining EU Member States, Professor Douglas-Scott told us:
It might be tried out. I am not sure that would pass muster. Perhaps more likely would be arguments based on economic wellbeing of the country, or the rights of those who voted in the referendum to exercise their democratic right to vote [ … ] I think the bargaining chips argument probably would not cut very much ice with a court.
41.The Government informed us that it had made no assessment of the number of people who may have the protection of Article 8 on the grounds that “we do not expect there to be legal proceedings of the sort that have been outlined [ … ] We expect this to be a matter of speedy agreement.”
42.It is plain that, in the unlikely event that the Government sought to deport EU nationals, there could be the potential for significant, expensive and lengthy litigation leading to considerable legal uncertainty for a prolonged period of time. Such claims could potentially overwhelm the courts and tribunals system.
43.In their written evidence to us, the Immigration Law Practitioners Association (ILPA) has recommended that simple protections should be offered to those who have permanent residence at the date the UK leaves the EU:
One simple measure would be to provide that all those who have permanent residence at the cut-off date should retain the equivalent of their rights as permanent residents. Those who do not yet have permanent residence should, at the very minimum, be allowed to qualify for permanent residence once they meet the current conditions for permanent residence set out in EU law.
44.Unless assurances are given the Home Office is likely soon to face a flood of applications from EU citizens resident in the UK seeking to establish their status.
45.The House of Lords European Union Committee has recommended that “the Government should change its policy and give a unilateral guarantee now that it will safeguard the EU citizenship rights of all EU nationals in the UK post-Brexit.”
46.In addition to the rights of those EU nationals currently living in the UK, if the remaining EU Member States sought to deport UK nationals, similar questions would arise. Clearly UK nationals in other EU Member States would be able to rely on the ECHR: the protections of Article 8 would be mirrored in those EU Member States. This would make any form of mass deportation of people back to the UK implausible and impracticable.
47.ILPA has contended that the rights of UK citizens might be subject to greater legal protections than EEA nationals and their family members in the UK. They have indicated that:
There is much more certainty for British citizens and their family members living in other EU states than for other EEA nationals and their family members in the UK because of the EU common immigration policy.
48.Yet the precise position of UK nationals in the EU is not certain. And in addition to the remote risk of deportation, there are also more practical issues which are likely to arise. An example of this is that UK citizens currently benefit from a right to healthcare under EU law. If such benefits were withdrawn, post-Brexit, it is possible that great numbers of UK nationals, many of them pensioners, would need to return to the UK. This could raise further questions, such as their entitlement to benefits (including jobseeker’s allowance, housing benefit, universal credit and pension credit) under the ‘habitual residence test’.
49.The Minister was not able to provide us with much detail or clarity on the question of UK nationals in the EU. He said:
As far as our citizens in the EU are concerned, at the moment they have the benefits of the ECHR, as we do here, and they also have the benefits of the Charter of Fundamental Rights and its application. Going forward, it is likely that the position will remain unchanged for British citizens in the EU, but we want to just make sure that that is the case and secure the deal.
50.On the question of residence rights, we believe that it is not appropriate to treat individuals’ fundamental rights as a bargaining chip. Notwithstanding the moral imperative to respect the rights of EU nationals, there is also a considerable practical impediment to treating such rights as negotiable. It is not realistic to imagine that the UK Government would be in a position to deport the large numbers of EU nationals currently in the United Kingdom. Under Article 8 of the ECHR, individuals are entitled for respect to their private and family life and home.
51.While these rights are in no way absolute, it would not be possible to establish a bright-line rule that would allow the deportation of EU nationals simply on the grounds that they had only been resident for a fixed period of time. Other factors would certainly be relevant and each case would have to be considered on its own facts. In such circumstances, there would be the potential for significant, expensive and lengthy litigation which could lead to considerable uncertainty for a prolonged period of time and could potentially overwhelm the UK courts and tribunals system.
52.These difficulties would be mirrored in the remaining 27 EU Member States, if they sought to deport UK nationals, since they have all ratified the ECHR. This reinforces our conclusion that there would be significant practical impediments to expelling individuals after Brexit.
53.We recommend that the Government addresses the issue of residence rights urgently. This could be done by providing an undertaking to the effect that all of those legally resident at a reasonable cut-off date would be guaranteed permanent residence rights. The Government should also seek to safeguard the residence rights of UK nationals resident in other EU member states at the outset of its Article 50 negotiations by way of a separate preliminary agreement. This ought to be done as soon as possible: if such action is not taken, individuals will be subject to continuing and distressing insecurity during two years of potentially protracted negotiations.
16 See: e.g. , Independent, 17 October 2016
17 See: e.g. , The Guardian, 30 November 2016
18 Letter from Rt Hon Elizabeth Truss MP, Lord Chancellor & Secretary of State for Justice, to the Chair of the Committee, , dated 12 October 2016.
19 , The Guardian, 4 October 2016
21 See: e.g. Mr David Robertson (), Mr Brian Robinson (), Stephen Lawrence (), Dr Simon Calcutt (), Anonymous (), and J G (). An associated matter is the position of UK and EU students. Universities UK has called on the Government to provide assurances to students who wish to apply for courses starting in 2018–19; but has acknowledged that the longer term implications for such students will depend on the outcome of negotiations. (See: )
22 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. The Citizens Directive was implemented into UK law by the Immigration (European Economic Area) Regulations 2006.
23 See: Written evidence from Mr Gary Holland () and from Mr Stuart Whitehouse () to the EU Justice Sub-Committee’s inquiry into Brexit: acquired rights.
24 See: e.g., , Daily Telegraph, 1 December 2016, and, , The Guardian, 1 December 2016
25 House of Lords, Brexit: acquired rights, Tenth Report of the European Union Committee, Session 2016–17, , page 4
26 The Constitution Society, , (2016), pp 62–3
27 A bright-line rule is a legal rule that makes it possible to say that a given argument or set of facts falls on one side or the other rather than leaving the decision to the facts and circumstances of the case.
28 See: e.g. Al-Nashif v Bulgaria (App. 50963/99) (2003) 36 EHRR 655; Bouchelkia v France (App. No. 23078/93) (1998) 25 EHRR 686; Boujlifa v France (App.25404/94) (2000) 30 EHRR 419; Maslov v Austria (App. No. 1638/03) (23rd June 2008); Onur v United Kingdom (App. No. 27319/07) (2009) 49 EHRR 38; and A W Khan v United Kingdom (App. No. 47486/06) (2010) 50 EHRR 47; Samsonnikov v Estonia (App. No.52178/10) (3rd July 2012). See also the evidence of Dr Kirsty Hughes ().
31 . It has been reported that Angela Merkel and Donald Tusk have sought to block attempts to fast-track a deal: see e.g. , The Telegraph, 29 November 2016
32 Immigration Law Practitioners (), para 19. ILPA go on to say that even were such a provision brought forward this would, however, leave certain persons needing to rely on Article 8: in particular, the economically inactive EEA partners of British citizens who do not have comprehensive sickness insurance and are thus not treated as exercising treaty rights as self-sufficient persons, but who have built lives and families here. For this group, and to avoid similar complications in other cases, they “strongly recommend that rights of access to the NHS be treated as comprehensive sickness insurance cover.”
33 House of Lords, Brexit: acquired rights, Tenth Report of the European Union Committee, Session 2016–17, , page 6
34 Immigration Law Practitioners (), para 10
35 House of Lords, Brexit: acquired rights, Tenth Report of the European Union Committee, Session 2016–17, , paras 28–33
36 There are many different layers of EU law governing the very different degrees of access to the healthcare in a Member State depending on whether a national of another Member State is just visiting as a tourist or working/living there or specifically exercising the option to undergo medical treatment in another Member State. The House of Lords European Union Committee has noted concerns from UK nationals about this issue, highlighting the fact that: “UK nationals have asked if they would still be able to use a UK-issued European Health Insurance Card (EHIC) when travelling as a tourist to other EU States, and whether their EU country-issues EHIC would be valid in the UK on holiday. They have asked whether, as a worker in another EU country, they would still be entitled to an EHIC; and as a pensioner whether they would continue to be able to access free healthcare in their EU country of residence.” House of Lords, Brexit: acquired rights, Tenth Report of the European Union Committee, Session 2016–17, , para 51.
37 The habitual residence test was introduced on 1 August 1994. The test is applied to all people (unless they fall into one of the exempt categories), including returning British nationals , who have recently arrived in the country and who claim certain means-tested social security benefits, or seek housing assistance from a local authority. Citizens Advice indicate that the habitual residence test now applies to claims for the following benefits: Income Support, Income-based Jobseeker’s Allowance, Income-related Employment and Support Allowance, Pension Credit, Housing Benefit, Council Tax Reduction, Universal Credit. See: , Citizens Advice Bureau.
38 . It is worth noting that Charter rights can also be subject to limitation. Article 52(1) of the Charter provides that: “Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of other.”
16 December 2016