Brexit: acquired rights Contents

Chapter 8: Contents of the withdrawal agreement

Safeguarding EU rights in the withdrawal agreement

100.Our witnesses were united in concluding that the most effective way of protecting rights acquired under EU law after Brexit was to safeguard them in the withdrawal agreement concluded under Article 50 TEU, rather than rely on the ECHR, or BITs, or any other safeguards. Professor Douglas-Scott put the point forcefully:

“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, particularly rights of free movement and, for example, social rights, which are provided for in EU law. Again, workers’ rights do not find a home in the European Convention because it is a civil and political rights charter.”122

101.Professor Barnard thought it was “imperative that the divorce agreement says something about the position of EU nationals who are currently living and working in the UK, and UK nationals living and working in other Member States”.123 She noted, for example, that equality rights were poorly protected under the ECHR: “It is equality rights, which are so strong under EU law that will suffer as a result of the departure”.124

102.Mr Speaight agreed: “the more that can be covered by between the UK and the EU, the better”.125 Professor Lowe also agreed:

“After Brexit the UK’s rights and duties to EU nationals in the UK would be governed by customary international law (including the principle of ‘acquired rights’), by the ECHR and investment protection treaties and—most importantly—by the terms of any withdrawal agreement between the UK and the EU and/or its Member States.”126

103.Professor Lowe thought that the best way to minimise the risks of litigation was:

(i)to negotiate a withdrawal agreement that expressly sets out those rights that would in effect be carried over after Brexit by securing them in UK (rather than EU) law, and for the avoidance of doubt also setting out those rights that would not be carried over; and

(ii)to act in conformity with the UK’s existing obligations under the ECHR and BITs.127

104.We strongly agree with the unanimous view of our witnesses that the withdrawal agreement concluded under Article 50 should set out the EU rights that are to be maintained post-Brexit. This approach will give rise to the greatest legal certainty for EU nationals in the UK, and UK nationals in other EU States. This should be the most important consideration.

105.In the event that the UK exits the EU without a withdrawal agreement, the most effective safeguard for maintaining the citizenship rights of EU nationals in the UK will be national law. It is, therefore, vital that the Great Repeal Bill that the Government plans to introduce in 2017 ensures that the Immigration (European Economic Area) Regulations 2006, which implement the EU Citizens Directive, will remain in force unchanged on the UK’s withdrawal from the EU, with or without a withdrawal agreement. To do so will provide legal certainty to EU nationals in the UK. As importantly, it would mean that other EU Member States are more likely to ensure similarly full protection for UK nationals in their States, who will have lost their status as EU citizens, in the event that a withdrawal agreement is not agreed.

Reciprocity

106.Several witnesses agreed that reciprocity would be the key to agreeing which rights would be safeguarded in the withdrawal agreement. Professor Douglas-Scott did not think “that anything will be possible without reciprocity. This is the way the EU tends to work: whatever visa regulations it makes for third countries, it demands similar treatment for its own nationals.”128 Reciprocity would, therefore, be a key element in protecting the interests of UK nationals in other EU Member States: “in order to protect British citizens’ rights, reciprocity would be necessary (i.e. the UK would have to offer similar protections to those from other EU states)”.129 The Polish Ambassador, Mr Rzegocki agreed that “relations between the European Union and United Kingdom should be based on reciprocity”.130

107.The French Ambassador, Mme Bermann, was more cautious: “the negotiations will be based on reciprocity but whether it will be absolute reciprocity I cannot say”.131 Professor Lowe said that, while reciprocity was “an intuitive moral and political principle”, it was “not a necessary component of the bargain, as it were. There may be rights to be traded in against other interests: but that is a matter of government policy and what the Government think they are trying to achieve by negotiations.”132

108.The nature of the forthcoming negotiations is such that absolute reciprocity in all matters cannot be guaranteed. Nevertheless, we believe that absolute reciprocity should apply and be guaranteed in respect of citizenship rights.

Which rights to safeguard?

109.The Polish Ambassador, Mr Rzegocki, said that all EU citizenship rights were equally important for an EU national creating a life in another Member State. They were, in other words, indivisible:

“All rights enjoyed by the European Union citizens remain equally important. For instance, the right of a worker who has children to take up a job in another member state could be violated if his children cannot attend a local school there. It is no use prioritising one right over another; we should aim to preserve all of them. It is also obvious to us that, in such scenarios, the rights of United Kingdom nationals living in the European Union should also be maintained. It is very important, as my colleague said, and it is a question of freedom and our close co-operation in the future.”133

110.The Romanian Ambassador, Mr Mihalache, agreed with this assessment. Mme Bermann said that: “Of course, what the French community want is the status quo.”134 She also thought the negotiations would be “complex and very difficult. We have been very clear that the four freedoms are indivisible. We heard from the British Government that the most important point is curbing immigration, so that will have consequences.”135

111.Professor Douglas-Scott agreed136 with the importance of the EU rights highlighted in the Command Paper published by the Government ahead of the referendum, The Process of Withdrawing from the European Union:

“The UK’s relationship with the EU has built up over 40 years of membership and affects many aspects of life in the UK, and of UK citizens living across the EU; the terms of exit would have to cover the full extent of that relationship.

“This would include the status and entitlements of the approximately 2 million137 UK citizens living, working and travelling in the other 27 Member States of the EU. They all currently enjoy a range of specific rights to live, to work and access to pensions, health care and public services that are only guaranteed because of EU law. There would be no requirement under EU law for these rights to be maintained if the UK left the EU. Should an agreement be reached to maintain these rights, the expectation must be that this would have to be reciprocated for EU citizens in the UK.”138

112.To these Professor Douglas-Scott added the right to vote in local elections in other EU countries; the enforcement of civil judgments across the EU; EU social rights; the right of prisoners to serve their term in a UK prison after a certain period of time; and the ability of students to study in EU Member States. This list was compiled after a “fairly cursory look”.139

113.The British Medical Association (BMA) was concerned about how the NHS would be staffed after Brexit. There were approximately 135,000 EU nationals working in the NHS and the adult social care system in England. This represented about 5 per cent of the NHS workforce and 6 per cent of the adult social care workforce. The EU’s policy of freedom of movement and mutual recognition of professional qualifications had helped NHS trusts and providers ensure that gaps in the UK medical workforce were filled quickly by qualified workers, with the appropriate level of training and education, from other EU Member States.140

114.The BMA feared that the ongoing political uncertainty about the future of EU nationals living and working in the UK would inevitably lead to some of the EU national workforce leaving. It recommended:

“The Government must offer these highly skilled professionals the reassurance they need regarding their rights to live and work in the UK. Specifically, we believe these highly skilled professionals should be granted permanent residence in the UK. This would provide stability both to these individuals and to NHS workforce numbers.”141

115.The UK Medical Schools Council echoed these concerns:

“Leaving the EU is likely to have a negative impact on student admission numbers. Overseas students are less likely to be attracted to the UK when it is not part of the EU, and EU students will be less attracted to the UK if they are required to pay international fees. This could have a serious impact on university income and a disproportionately large impact on medicine and other STEM142 subjects given the high training costs. Great care will be needed with transitional arrangements. If the UK no longer participated in the Mutual Recognition of Professional Qualifications UK doctors and dentists might find it difficult to work in the EU with reciprocal difficulties for EU clinicians wishing to work in the UK.”143

116.Lord Howard of Lympne QC thought the three most important EU rights that should be safeguarded were the right to live, work and study in the UK.144 While he thought that the principle of free movement of people should end with the UK’s withdrawal from the EU, he was confident that flexible national immigration rules would replace them, which would be capable of addressing the needs of the NHS.145

117.Professor Barnard favoured giving EU nationals with five years’ residence in the UK a permanent right to reside, but warned against giving effect to this by establishing a right to seek “indefinite leave to remain” under national immigration rules. As we outlined in Box 2, obtaining indefinite leave to remain is expensive (£1,875), bureaucratic and, for those with poor records of residence, impracticable: “there are a lot of people here doing low-skilled jobs who do not have such documentation”. Professor Barnard also thought the administrative burden on the Government would be vast, given the number of EU nationals in the UK. She recommended instead creating a new status of “EU permanent residence” or “permanent residence for former EU citizens”, the criteria for which could be more easily fulfilled by EU nationals. National Insurance records would be a good place to start, “because they constitute the only official government registration that we have”, though “they do not show that you have a consistent pattern of work and presence in the United Kingdom.”146 In the end:

“The question for negotiators really is how much of a fight they want. Do they want to require individualised assessments of every single one of those 3 million people or do they want to take a light-touch approach and say, ‘Look, if you’ve got a national insurance number and you can produce some other evidence, you will get whatever the new status is going to be called’?”147

118.She thought a new status of residence might also be something that UK nationals in other EU Member States could enjoy without getting caught up in domestic immigration rules. Lord Howard agreed that you should “take away the hoops for people who have the acquired rights as EU citizens”,148 to make the process of obtaining permanent residency simpler.

119.Professor Barnard thought the following EU rights should be safeguarded, in addition to permanent residence rights:149 the right to rent or buy; the right to equal treatment; the right to access public services, including healthcare; the existing political rights to vote in regional and local elections; family member rights; the right to set up and run a business; the mutual recognition of qualifications; and the right of exportability of social security benefits.

120.Ultimately, it will be for the Government and its EU partners to determine which EU rights they wish to safeguard in the withdrawal agreement.

121.In our view EU citizenship rights are indivisible. Taken as a whole they make it possible for an EU citizen to live, work, study and have a family in another EU Member State. Remove one, and the operation of others is affected. It is our strong recommendation, therefore, that the full scope of EU citizenship rights be fully safeguarded in the withdrawal agreement.

122.It is clear to us that, in terms of numbers and of complexity, it would be impractical to require EU nationals resident in the UK to apply for indefinite leave to remain under the UK’s Immigration Rules. We draw the Government’s attention to the recommendation of one of our witnesses that a new status of permanent residence should be given to EU nationals in the UK post-Brexit. It would also be open to the Government to grant them the existing status of indefinite leave to remain, while waiving both the usual charges and the requirement to comply with any eligibility criteria other than that they were EU citizens resident in the UK. This would avoid establishing discriminatory status and categories of rights between EU Citizens and other non-UK nationals permanently resident in in the UK post-Brexit. Whichever approach the Government chooses, we recommend that the criteria it applies for permanent residence for EU nationals post-Brexit should be reasonable, flexible, and cost-effective.