Today’s blog piece is our first in a series presenting the work that has been done in our “Millions in the Margins” campaign.
Our legal advice is, despite the restricted brief our fund-raising covered is very long and at times difficult to grasp. In view of this we will be publishing it in segments accompanied by explanations and practical examples of the points made.
As stated above we have only begun our work, additional funds will enable us to explore many of the aspects that, while seemingly niche to some, may be of great relevance to “the man on the Clapham omnibus”.
Over 40+ years, UK citizens exercising their rights as EU citizens have generated a huge variety of personal situations in relation to home, work, study…
This variety and complexity has led to many people’s personal situations being ignored by negotiators on both sides because it’s a matter of “question too difficult”. But this is no excuse: negotiators must negotiate for all the people concerned, and politicians have no right to abandon any of their country’s citizens. Politicians work for us, not us for them, they are the ones who should bend over backwards for us, not us for them, that’s what they are payed their not inconsiderable salaries for.
As time goes on the list of topics that were going to be handled “later in the negotiations” grows longer and the list of topics for which there will simply be no time also gets longer. Eventually both of these lists will become synonymous with the exhaustive list of issues that need to be addressed, we will then have reached peak Brexit. We therefore feel that our advice will become ever more apposite as March 29th 2019 approaches.
- INTRODUCTION AND SUMMARY
- We are asked to advise on the draft Withdrawal Agreement between the United Kingdom and the European Union, in particular on the extent to which it fails to protect the interests of certain categories of British nationals, giving rise to unlawful discrimination or a breach of fundamental rights; and the legal remedies, if any, that may be available to address those shortcomings in the Agreement.
- In summary, our Advice below is that:
- Citizens’ rights have been given special prominence in the negotiations for the Withdrawal Agreement. The ‘personal scope’ of the Withdrawal Agreement is set out in considerable detail in the draft of the Agreement and includes various categories of EU and UK citizens, including ‘frontier workers’, and their EU and non-EU family members, dependants etc, subject to certain requirements. It is not envisaged that there will be any enforceable legal guarantees of citizens’ rights between the EU and the UK arising from the current negotiations other than those set out in the green text of the draft Withdrawal Agreement.
- Under the Withdrawal Agreement, a significant number of people will either not have the right to reside or will have significantly limited rights compared with the current position. These include, in particular: (a) people who do not exercise relevant rights before the end of the transition period; (b) people in relationships which do not pre-date the end of the transition period; (c) children with one or more parent who is a third country national; (d) children in care; (e) people with rights of residence under CJEU case law Surinder Singh, Lounes and Carpenter; (f) people who have acquired a permanent right of residence in another EU Member State but who are not currently resident there; (g) those who do not have (or have not at all relevant times had) comprehensive sickness insurance; and (h) those who do not make a relevant application for residence status in time.
- Even where rights are granted under the Withdrawal Agreement, there are ways in which those rights can be permanently lost in future, which would not arise in the same way at present under EU law, including the loss of the right of residence by certain types of absence, and loss of the right of residence as a result of conduct or criminality occurring after the transition period.
- The right of residence granted under the Withdrawal Agreement is restricted to a single country. This may amount to a considerable restriction, e.g., for a British citizen living in one Member State while working in another, or operating a business in more than one Member State, or hoping to expand a business to another Member State in the future. It may also amount to a considerable restriction for British nationals currently studying in one Member State while planning to work or live in another in future, and for those in the process of obtaining professional qualifications which they expected to be recognised across the EU.
- To be lawful under EU law, the Withdrawal Agreement will have to comply with general principles of EU law including non-discrimination, the general prohibition on retroactivity, the principles of legal certainty and legitimate expectations, as well as EU fundamental rights.
- In our view, there are identifiable gaps in the protection of existing rights afforded by the Draft Withdrawal Agreement, including significant inconsistencies in the treatment of different types of relationship or categories of person who, ostensibly, appear to be similarly situated, as well as apparently neutral rules which are likely to impose a disproportionate burden on certain vulnerable groups (children, the disabled, the elderly). We think that a number of these gaps and distinctions – e.g. treating the non-EU parents of EU children differently depending on the reason for residence in the EU; distinguishing between family reunions based on the time at which a relationship arises; or denying a right to family reunion based on the time at which a need for care based on serious health grounds arises – gives rise to concerns regarding non-discrimination and consistency.
- Such substantial differences in treatment call for objective justification. It is far from clear that these differences, which are in many cases essentially arbitrary, can be justified in accordance with the requirements of EU law, especially bearing in mind the likely significant (and disproportionate) impact on the private and family life of affected individuals (which will include children and vulnerable or elderly adults); the risk of indirect discrimination on grounds of age; and the lack of any obvious legitimate aim justifying such differences in treatment.
- There is also reason to doubt the compatibility of the Draft Withdrawal Agreement with other general principles of EU Law including the principles of non-retroactivity, legal certainty and legitimate expectations, since it appears to infringe the legitimate expectations of a number of groups of individuals, such as those who had (until 2016 at least) a legitimate expectation that their rights, such as the right to reside or to obtain recognition of professional qualifications in another Member State, would not be abrogated without affording them protection.
- Where individuals have relied on their citizenship rights to their substantial detriment (financial and personal), in the full expectation that they would continue to enjoy such rights, e.g. in retirement or post-qualification, there is a need to justify frustrating those expectations. Again, given that certain of the groups who are affected will suffer substantial detriment, without the availability of compensation or residual protection of their rights, and in an arguably arbitrary or discriminatory manner, there must be considerable doubt as to whether the Draft Withdrawal Agreement complies with the requirements of EU law in this respect. In most cases there is no obvious “overriding” public interest justification in failing to protect such groups.
- Respect for fundamental rights is a condition for the legality of EU acts, including any agreement between the EU and a third country. Many fundamental rights are, in principle, potentially engaged by withdrawing the rights, entitlements and benefits conferred by EU citizenship.
- While the strength of any claim would depend on individual facts and circumstances, it is clear that the wholesale deprivation of EU citizenship for all UK citizens, and the deprivation of certain citizenship rights such as certain rights of family reunification, risk infringing the right to respect for private and family life under Article 8 ECHR and equivalent EU Charter rights. Again, we note that the deprivation of existing derived rights of residence, such as Zambrano rights, is likely to have a severe impact on those affected, which will include children, the elderly and disabled persons, who may be among the most seriously affected. This is likely to weigh heavily in any proportionality assessment of the effect of the Draft Agreement on those exercising derived rights of residence.
- The absence of any protection for the voting rights of those in Northern Ireland who have Irish citizenship, or who have (or are entitled to) both British and Irish citizenship, and who may continue to be significantly affected by decisions made by the European Parliament, is also arguably contrary to fundamental rights principles relating to the deprivation of voting rights. If, and insofar as, EU Law continues to apply to the UK as a whole after Brexit, the blanket deprivation of democratic rights of UK nationals to participate in EU Parliamentary elections may raise a fundamental rights issue.
- Under international law, the EU and UK will each remain bound as a matter of international law to continue to respect (and give effect to) “acquired rights” conferred by the EU Treaties. They will also have to respect “executed” rights, obligations or a “legal situation” created by the EU Treaties, save where the Withdrawal Agreement makes provision not to do so.
- We think it would be contrary to EU Law for the EU’s institutions to fail to respect the “acquired rights” of UK (or EU) citizens after Brexit, absent specific agreement as to how such rights are to be addressed in the Withdrawal Agreement. We therefore think that it will possible for individuals in possession of “acquired rights” for the purposes of international law to challenge a failure on the part of EU Law to respect the continued effect of such rights, if they are not expressly curtailed by the Withdrawal Agreement. We also think that consent on the part of the EU states or on the part of the United Kingdom to remove vested or executed rights is not to be lightly inferred.
- A number of the categories of rights considered in this Advice, including continuing rights of residence and/or derived rights of residence, are not expressly extinguished by the Draft Withdrawal Agreement. We consider that there is a strong argument, in particular where UK or EU citizens rely on such rights prior to the end of the Transition Period, that such rights are “vested” or “executed” and therefore continue in force as a matter of international (and therefore EU) law, absent agreement between the UK and EU to the contrary. In interpreting and applying the Withdrawal Agreement, it is strongly arguable that the Courts would have to interpret and apply EU law in accordance with these requirements.
- The UK and the EU27 countries will have to put in place domestic legislation to implement the Withdrawal Agreement, and the parties are likely ultimately to agree to long term arrangements for dispute settlement which will enable individuals or groups based in the United Kingdom to raise issues as to the interpretation or validity of the Withdrawal Agreement (or aspects thereof) for purposes of EU Law, premised on EU Law arguments. Where individuals in the United Kingdom consider that either provisions in the Withdrawal Agreement, or the interpretation and application of the Agreement by the United Kingdom or their country of residence is unlawful, it will be possible for individuals to rely on EU law arguments (including general principles of EU Law and arguments based on the Charter of Fundamental Rights) to bring a challenge. In addition, individuals may seek reference to the CJEU both during the Transition Period and, insofar as citizenship rights are concerned, for 8 years after the end of the Transition Period.
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Our aim is to help people see what’s going on, understand what they are, or aren’t, being told, and decide what is the best outcome for the UK: an outcome in the national interest, protecting fundamental citizenship rights and ensuring Parliament and not the executive is sovereign.
There is still a long way to go and there are no guarantees about what the outcome will be. The only thing that is certain is that if we stop trying we will lose.
To help protect our fundamental rights, and support Parliament in safeguarding them, please support us so we can maintain our campaign and make your voice heard.
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Published by Grahame Pigney on behalf of The People’s Challenge Ltd.