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Brexit – what rights have we really acquired?

When the UK joined the EU, British people got some new rights – for instance, to live and work in other member states – which they had never had before. British businesses gained new rights too, providing goods and services without being impeded by tariffs or measures of similar effect.

Over more than 40 years, as the EU both grew and deepened, EU law came to govern areas from fishing to public procurement, millions of Europeans moved, worked, settled or established businesses in other member states, and billions of euros were ploughed in to cross-border investments.

With the coming of the Maastricht Treaty in 1993, the concept of EU citizenship was introduced, with anyone who was a citizen of any member state automatically becoming a citizen of the EU as well. This brought with it further rights, perhaps most notably to move freely around the EU (visa free travel) and to vote in municipal elections wherever you reside.

What happens to all these rights after Brexit? Do they simply disappear?

Will EU citizens have the right to stay in the UK after Brexit?

Individual citizens of other member states who have settled in the UK are likely to be concerned about their citizenship rights after Brexit. The present position, for people settled in the UK, is set out in the Citizens Directive 2004/38/EC, which gives them a right of residence for more than 3 months if:

  • they are either employed or self-employed; or
  • they are economically inactive but have i) sufficient resources for themselves and their family not to become a burden on the [UK] social assistance system; and ii) comprehensive sickness insurance cover;
  • they are accredited students and have i) sufficient resources for themselves and their family not to become a burden on the [UK] social assistance system; and ii) comprehensive sickness insurance cover.

Anyone who has had a right of residence, observing these conditions, and exercised it for a continuous period of 5 years (with some very specific exceptions) then acquires a right of permanent residence under EU law, which they could enforce, if necessary, in the UK courts.

Comprehensive sickness cover and UK residency rights

There have been numerous recent stories in the press about people who have been in the UK for decades, some with children here, who have applied to the Home Office for various forms of official recognition of their rights as permanent residents and been denied.

The problem has generally been with showing that they had comprehensive sickness insurance cover for periods when they were not working. If they were relying on NHS care anyway, why would they have thought to take out private health insurance to comply with the Citizens Directive?

There are, clearly, likely to be big problems for many individuals in trying to prove that they fall within the EU permanent right of residence requirements. There is plenty of evidence that this is something which worries a lot of people – British citizens living in France and Spain every bit as much as Poles and Romanians in the UK.

Do current EU treaties protect future residency rights?

Even assuming that any given individual can succeed in demonstrating that she qualifies for the right of EU permanent residence today, what will that be worth after Brexit? Can these rights simply be taken away with the stroke of a politician’s pen, or have they in some sense built up over time so that they cannot be taken away? The idea that citizens have ‘acquired’ some core set of EU rights, which are somehow automatically protected, has gained considerable media currency in recent months. On analysis, this appears largely mistaken.

The first main argument for a set of rights having become ‘acquired’ relies on the Vienna Convention on the Law of Treaties. This is essentially an agreement between states as to how treaties are to be interpreted. Article 70(1)(b) provides that the termination of a treaty “does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination”.

Does this mean that, once the UK ceases to be a party to the treaties which form the basis of the European Union, individuals’ rights are unaffected by the change? No – “parties”, in the Vienna Convention, refers to states themselves, not individual citizens or companies. As such, the Vienna Convention provides no assistance to individuals at all in this regard. It does have some bearing on what obligations the UK will have to pay, for instance, for the pensions of EU officials working when it was a party to the treaties under which they were employed – an entirely separate matter.

Residency and the European Convention on Human Rights (ECHR)

The second main argument relies on the European Convention on Human Rights (ECHR), and of course presupposes, in that regard, that the UK will remain a party to that Convention.

Article 1 Protocol 1 ECHR protects the peaceful enjoyment of possessions. This has been held to include physical property, contracts, licences, access to public benefits in some circumstances, legitimate expectations etc. Article 8 ECHR protects private and family life, and is often relied on in immigration cases where foreign nationals are arguing that they have a family life in the UK which would be interfered with if they were removed from the country.

These rights may well prove useful in preventing large-scale interference with property, or the forced removal from the UK of nationals of other member states. However, it is questionable whether the UK government actually has any real intention of doing either in any event. Neither right appears likely to offer any mechanism whereby UK nationals can somehow retain EU citizenship – which is essentially parasitic on citizenship of a member state – after Brexit.

Conclusion

Where people lose rights which they value greatly, there is always a risk of litigation arising. It is likely – and generally thought desirable – that the rights of EU nationals living, and EU businesses operating, in the UK will be addressed in some detail in any withdrawal agreement. Reliance on an ill-defined doctrine of ‘acquired rights’, however, would appear largely ill-conceived.

Ross Beaton / 9th Mar 2017


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