Government must ignore illegal proposals for a pre-Brexit cut-off point limiting the rights of EU nationals in the UK

Dr Albert Sanchez Graells, Senior Lecturer in Law, University of Bristol Law School

Dr Albert Sanchez Graells, Senior Lecturer in Law, University of Bristol Law School

In its paper of 13 March 2017 on “The Rights of EU Nationals in the UK Post-Brexit”, Migration Watch UK has put forward a range of proposals aimed at clarifying – and limiting – the rights of EU nationals in the UK in the context of Brexit. These proposals are illegal under EU law and the UK Government must ignore them in their process of shaping the UK’s migration policy towards EU nationals as a result of Brexit. This post summarises these proposals and details the reasons why they are illegal under EU law.

The proposals of the Migration Watch UK paper focus on two main categories of EU nationals: first, those that are residing in the UK at the time of triggering Article 50 Treaty of the European Union (TEU) but will not qualify for permanent residence at the time of Brexit (which the paper assumes to be March 2019) (category (a)). Second, those that will continue to arrive to the UK between the moment in which Article 50 TEU is triggered and the moment when Brexit becomes legally effective (category (b)). Even if the paper is not very clear about it, the proposals would also affect the rights of European Economic Area (EEA) nationals, as well as those of individuals whose residence and work rights derive from those of an EU/EEA national. For simplicity, though, I will stick to the use of the expression “EU nationals” to cover all of them.Migration Watch UK considers that the situation of both categories of EU nationals can be determined unilaterally by the UK and propose that: (1) legislation is enacted to create the legal basis for category (a) EU nationals’ “ongoing residence and for their right to continue to accrue residence time towards permanent residence”; and (2) in order to avoid a pre-exit surge in the arrival of category (b) EU nationals, the establishment of a cut-off point “after which arriving EU nationals would not be entitled to continue to accrue time towards permanent residence”. The paper provides additional detail on this second proposal, and indicates that “[i]t is possible that a temporary work permit, valid for perhaps two years, could be issued to those who arrived prior to the UK’s departure from the EU but after the cut-off point. This would have the advantage that it would allow time for employers that have become dependent on EU labour to make the necessary adjustments.”

Check-In and passport control at the Eurostar station Bruxelles-Midi/Brussel-Zuid (Belgium). Credit - Opihuck/Wikimedia Commons

Check-In and passport control at the Eurostar station Bruxelles-Midi/Brussel-Zuid (Belgium). Credit – Opihuck/Wikimedia Commons

Migration Watch UK’s proposals frontally contravene EU law. This is particularly clear concerning proposal (2) on the establishment of a pre-Brexit cut-off point at which EU nationals are not allowed to exercise their free movement rights in full. The imposition of a requirement to obtain a temporary work permit for a 2-year period – which would at least partially overlap with a time in which the UK is still a Member State of the EU – and the suspension (or rather denial) of the right to accrue time towards the acquisition of a permanent residency right violate the Citizens’ Rights Directive and the fundamental rights enshrined in the Treaty on the Functioning of the European Union. In turn, this constitutes an infringement of Article 50(3) TEU, according to which EU law will continue to apply to the UK until the date of the entry into force of the withdrawal agreement (if there is one), or two years after the trigger of Article 50 TEU if the negotiation period is not extended (which Migration Watch UK assumes to be March 2019).

Proposal (2) is also flawed due to its dependence on the assumption that there will be a clear cut-off point for the UK’s obligations towards EU nationals, despite the fact that such obligations are possibly going to be affected by transitional arrangements beyond the two years after triggering Article 50 TEU, either as part of the withdrawal agreement, or as part of an extension of the negotiating period. Thus, any action taken by the UK that diminishes the effectiveness of EU nationals’ rights while the UK is within the EU, even if adopted on the premise that EU citizens will not be able to complete their 5-year continued residency before the UK actually leaves the EU, constitutes an unacceptable anticipation of the detrimental effects of Brexit on individual rights and, as such, is illegal under EU law for the same reasons.

Similarly, but as a result of a more complex legal assessment, proposal (1) – and, more generally, any proposal oriented at altering the conditions under which EU nationals can continue to accrue time towards acquiring permanent residency rights – risks infringing EU law due to a breach of the substantive rights in the Treaty on the Functioning of the European Union, the Charter of Fundamental Rights of the European Union and the Citizens’ Rights Directive in combination with the principle of legitimate expectations.

Even if there is a significant level of uncertainty regarding the specific contours of the protection based on the principle of legitimate expectations and the extent to which individual rights will be grandfathered at the time of Brexit (see House of Lords European Union Committee report on “Brexit: acquired rights”), in my opinion, the UK cannot unilaterally abrogate such protection without incurring in a significant risk of violating EU law (as well as, possibly, domestic constitutional protections).

This was reflected in the House of Lords amendment 9B to the European Union (Notification of Withdrawal) Bill, which made explicit reference to the need to “to ensure that citizens of another European Union … who are legally resident in the United Kingdom … continue to be treated in the same way with regards to their EU derived-rights and, in the case of residency, their potential to acquire such rights in the future” (emphasis added). Thus, the guarantee of the possibility to complete the acquisition of permanent residency rights under the current conditions cannot be unilaterally brushed aside by the UK Government without facing a very significant risk of infringement of EU law.

In addition, even if it is understood that these issues are likely to be resolved politically as part of the withdrawal agreement, the UK cannot assume that it can unilaterally establish a (post-Brexit) cut-off point after which continuation of accrual of permanent residency (and other) EU rights will stop altogether. Withdrawing from the European Union implies a very deep and drastic change of political, economic and social model both for the UK and for the EU. It thus seems highly unlikely that this shift of paradigm will be designed as a short-term measure, and it seems to me likely that any new rules will only be effectively applicable for the future and introduced in a phased-in manner.

Overall, then, the proposals included in UK Migration Watch’s “The Rights of EU Nationals in the UK Post-Brexit” paper are illegal under EU law and the Government must ignore them. They are also not in accord with the need to balance UK and EU27 interests in the Article 50 TEU negotiations and to create a reasonable timeframe for the roll-out of such drastic change of current realities.