This report considers one of the most pressing issues to have arisen since the referendum result in June—what happens to the EU rights upon which so many of us rely when the UK leaves the EU?
EU citizenship rights feature prominently among those rights, the most fundamental of which is the right of any EU national to live and work in a Member State of their choosing. Millions have chosen to do so. This report largely focuses on those who have chosen to do so in the UK, and those UK nationals who have chosen to do so in other EU Member States. While the report does not consider commercial rights in any detail, many of the legal principles it considers apply as much to companies as to individuals.
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. The evidence we received shows that this is not the case. 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.
The European Convention on Human Rights may provide some protection, particularly against EU nationals being deported from the UK, or UK nationals being deported from EU Member States (should that ever occur). It may also protect against the loss of possessions, be they physical, or intangible, such as certain commercial rights, which are currently protected under EU law. Similarly, Bilateral Investment Treaties may provide limited safeguards for investors from losing EU rights, when to do so does not clash with principles of EU law.
These alternative means of protecting EU rights post-Brexit must, however, be seen in their proper context. They overlap with only a handful of the thousands of EU rights which derive from the UK’s membership of the EU. As Professor Sionaidh Douglas-Scott told us: “A lot of the rights that are derived from EU law are simply not replicated in other instruments, so there is a real deficit … There will be many, many rights that simply do not find a home in any of these other instruments.”
The central recommendation of the report—and an inescapable consequence of the evidence we received—is that if certain EU rights are to be safeguarded on the UK’s withdrawal from the EU, they should be safeguarded in the withdrawal agreement itself. The agreement will be binding under international law, and will be given effect, and enforced, in the national legal systems of the UK and the EU Member States. This would be the most certain way of providing effective legal protection. It would also be the most effective way of reducing the level of litigation that would undoubtedly follow a Brexit where these rights were not safeguarded.
We conclude that the rights to be safeguarded in the withdrawal agreement should be frozen as at the date of Brexit. We think it likely that the majority of them will be reciprocal with parallel EU rights, and so should be applied consistently with them. In other words, there will need to be a level playing field. As the parallel EU rights evolve over time, so it is likely that UK law will have to evolve with them. Accordingly, we recommend that a mechanism be established to ensure that UK law can take account of relevant developments in EU law, and, importantly, that EU law can take account of relevant developments in UK law. We draw attention to a mechanism under an extradition agreement between the EU, Norway and Iceland designed to achieve similar ends.
The case for all EU citizenship rights being among those to be safeguarded in the withdrawal agreement is overwhelming. The Polish, Bulgarian and French Ambassadors to the UK told us of the contribution their nationals had made to the economy and culture of the UK, of the rise in xenophobia they had experienced since the referendum, and of the fundamental uncertainty they faced. We received equally compelling evidence of the deep anxiety of UK nationals living and working in other EU Member States. Many are pessimistic that the life that they had planned will still be possible. We are not surprised. Their rights to live, work and study in another country as a consequence of EU citizenship are far greater than those they would enjoy under national immigration rules, or under EU immigration rules for nationals of a State which is not a member of the EU.
As a consequence, we recommend 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. The overwhelming weight of the evidence we received points to this as morally the right thing to do. It would also have the advantage of striking a much needed positive note for the start of the negotiations.