Brexit: acquired rights Contents

Summary of conclusions and recommendations

The rights of EU citizens and their families

1.The rights of an EU citizen to live and work in any EU Member State, and to gain a permanent right of residence in that State after five years, are some of the most fundamental in EU law. From them have derived all of the additional citizenship rights that are necessary for nationals of EU Member States, and their families, to conduct their lives in an EU Member State of their choosing on equal terms with the nationals of that State. (Paragraph 21)

2.That said, we received evidence suggesting that many EU nationals who have been in the UK for over five years may not be able to prove that they meet the criteria for permanent residence as an EU citizen. For example, those who are not economically active, including students, will have to show that they have had comprehensive sickness insurance cover for five years in the UK, notwithstanding that the National Health Service is freely available. We call on the Government to explain whether this consideration will influence the decision it makes on the cut-off point for deciding which EU nationals in the UK are given a permanent right to reside after Brexit. (Paragraph 22)

3.We also call on the Government to publish statistics on the number of EU nationals in the UK who have obtained proof of a permanent right to residence, and the number of applications that are pending. (Paragraph 23)

The loss of EU citizenship rights

4.In the absence of a negotiated settlement, the consequences of the loss of EU citizenship rights for EU nationals in the UK, and for UK nationals in other EU Member States, will be severe. (Paragraph 31)

5.EU nationals in the UK will be subject to national immigration rules, which restrict the rights of migrants far more than EU citizenship law, and which have been described as Byzantine in their complexity by the Court of Appeal. (Paragraph 32)

6.While UK nationals in EU Member States will also be subject to the national immigration law of their host State, they will enjoy additional protection as ‘third-country nationals’ under EU immigration law (except in Denmark and Ireland). The additional protection is, however, a considerable reduction on the migrant rights afforded to EU citizens. (Paragraph 33)

The concerns of EU nationals in the UK

7.It is clear, and unsurprising, that the uncertainty caused by the referendum has given rise to deep anxiety among EU nationals, including Polish, Romanian and French nationals, in the UK. The Government is under a moral obligation to provide certainty and legal clarity to all EU nationals working, living and studying in the UK, who contribute so significantly to the economic and cultural life of the UK. It should do so urgently. (Paragraph 47)

8.There is also a forceful economic case for the Government to act quickly. EU workers play an important role in filling gaps in the labour market that cannot otherwise be filled by UK workers. This is as true for highly skilled job markets, such as medical or financial services, as it is for lower skilled or seasonal job markets. The longer their future is uncertain, the less attractive a place to live and work the UK will be, and the greater labour market gaps will be. (Paragraph 48)

9.The referendum result has contributed to a rise in xenophobia towards EU nationals. We deplore this. Question marks about the rights of EU nationals to live in the UK may be fuelling xenophobic sentiment, as the Bulgarian Ambassador suggested. We call on the Government to explain what action it is taking to counter xenophobia towards EU nationals. (Paragraph 49)

The concerns of UK nationals living in other Member States

10.The anxiety of EU nationals in the UK is matched by that of UK nationals in other EU States—the evidence we received of their distress is compelling. Many are pessimistic that the life that they had planned in another EU Member State will still be possible. Residence rights, employment rights, access to health care and the capacity to finance retirements feature large among their concerns. Just as the Government is under an obligation to provide certainty to EU nationals resident in the UK, so it is under an equal moral obligation to seek to provide certainty and legal clarity to all UK nationals working, living and studying in other EU States. It should do so urgently. (Paragraph 54)

The protection of EU rights as acquired rights

11.It is evident that the term ‘parties’ in Article 70 (1)(b) of the Vienna Convention on the Law of Treaties refers to States, not to individuals or companies. In no sense, therefore, can this provision be said to safeguard individual rights under EU law that will be lost as a consequence of the UK’s withdrawal, in the absence of a negotiated settlement. (Paragraph 60)

12.The evidence we received makes very clear that the doctrine of acquired rights under public international law will provide little, if any, effective protection for former EU rights once the UK withdraws from the EU. The scope of acquired rights is limited to certain contractual and property rights which, even were they to coincide with EU rights, are highly unlikely to be enforceable. Reliance on the doctrine before the referendum as a means of protecting EU rights was therefore misplaced. (Paragraph 71)

13.Litigation is always possible, however, where valuable rights have been lost. There is, therefore, a strong incentive for the Government to address the underlying causes of such potential litigation in the withdrawal agreement. (Paragraph 72)

The protection of EU rights under alternative sources of law

14.In the absence of a negotiated settlement on which EU rights will be maintained, the ECHR offers a more likely route for successful litigation post-Brexit than the international law doctrine of acquired rights. A greater number of EU rights will overlap with ECHR rights, and the ECHR has an effective national enforcement mechanism in the Human Rights Act 1998. (Paragraph 88)

15.The two most relevant ECHR rights are the right to family and private life under Article 8 and the right of peaceful enjoyment of possessions under Article 1 of the First Protocol. Article 8 is likely to be invoked in cases of deportations of EU nationals post-Brexit (should such a policy ever be implemented), to seek to prevent the deportation taking place. Article 1 of the First Protocol will be invoked to protect EU rights to tangible and intangible property that overlap with the scope of “possessions” under that Article. (Paragraph 89)

16.We are not confident that the right to private and family life under Article 8 of the ECHR would prevent the status of EU citizenship from being removed as a consequence of Brexit. The ECHR case law on the protection of citizenship to which we were referred relates to national citizenship. It is arguable whether EU citizenship can be conflated with national citizenship for this purpose: Article 20 of the Treaty on the Functioning of the EU makes clear that EU citizenship “shall be additional to and not replace national citizenship”. (Paragraph 90)

17.There is a risk that the loss of EU citizenship could lead to unlawful discrimination between UK nationals, EU nationals and third-country nationals in the UK post-Brexit, where an ECHR right is engaged, as it could for other UK nationals in other EU Member States. We expect this risk of unlawful discrimination to lead to a high volume of litigation, unless it is addressed in the withdrawal agreement. (Paragraph 91)

18.The overlap between EU and ECHR rights should, however, be kept in context: the full range of EU rights is not covered by the ECHR. In cases where there is no overlap the ECHR will not provide any protection. This appears to be the case for many of the EU rights about which UK nationals living in other Member States are worried, such as the right to work, to study, to retire, to access affordable healthcare and other public services, and to equal treatment. (Paragraph 92)

19.We question whether the UK’s bilateral investment treaties (BITs) will provide effective alternative protection for many EU rights which have been lost as a consequence of the EU’s withdrawal from the EU. We do so for two reasons. First, the scope of BITs is limited to commercial investor rights, with the consequence that the overlap with individual EU rights is unlikely to be wide. Secondly, where there is an overlap with EU rights, EU law would appear to take precedence over a BIT. (Paragraph 98)

20.Litigation is always possible, however, where valuable rights have been lost. There is, therefore, a strong incentive for the Government to address the underlying causes of such potential litigation in the withdrawal agreement. (Paragraph 99)

Contents of the withdrawal agreement

21.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. (Paragraph 104)

22.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. (Paragraph 105)

23.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. (Paragraph 108)

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

25.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. (Paragraph 121)

26.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. (Paragraph 122)

Enforcement of the withdrawal agreement

27. We recommend that the rights which are safeguarded in the withdrawal agreement should be frozen as at the date of Brexit; we cannot see any other approach that would provide for legal certainty. (Paragraph 136)

28.The majority of the safeguarded rights are likely to be reciprocal with EU rights, which means that they will have to be applied so far as possible uniformly. EU law will evolve over time, and national legislation and its interpretation by the courts will have to evolve accordingly. We recommend that a reciprocal 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. (Paragraph 137)

29.The experience of the EEA States and Switzerland in this regard will be instructive. The 2006 extradition agreement between the EU, Norway and Iceland on extradition procedures, for example, may be a helpful precedent. The fact that the duty to keep under review the case law of the respective parties is reciprocal is particularly important: Norway and Iceland have to take account of developments in the case law of the CJEU, but so too the EU has to take account of developments in the case law of the courts of Iceland and Norway. (Paragraph 138)

The case for a unilateral guarantee or early negotiation

30.We urge the Government to change its stance and to give a unilateral guarantee now that it will safeguard the EU citizenship rights of all EU nationals in the UK when the UK withdraws from the EU. 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 positive note for the start of the negotiations, which will be much needed. (Paragraph 147)

31.Even if the Government refuses to give a unilateral undertaking ahead of the negotiations, there is a strong case to be made for agreeing EU citizenship rights as a preliminary and separate element of the negotiations as soon as Article 50 is triggered. EU nationals in the UK and UK nationals in other EU Member States should not have to wait until the end of the negotiations to find out whether they have a future in the EU States where they have decided to live. (Paragraph 148)

© Parliamentary copyright 2016