On Thursday 8 December 2016 at The Lighthouse in Glasgow, four eminent lawyers and academics with varying knowledge and perceptions of Brexit presented their views on one of the most constitutionally significant events in British history. Organised in partnership with the Equality and Human Rights Commission, and chaired by Sarah Smith, BBC Scotland Editor, the event focussed on the impact that Brexit could have on the human rights of migrants into and out of the European Union (EU).
The speakers were Dr Jan Culik, a respected academic, currently working as a Senior Lecturer in Czech at the University of Glasgow. His focus at the event was centred on a non-UK perspective of Brexit. Kenneth Campbell QC of Arnot Manderson Advocates is a leading Scottish advocate, with a wide ranging practice. Maria Fletcher is a Senior Lecturer in European Law at the University of Glasgow and is on the Steering Group of the University’s Refugee Asylum and Migration Network. Mungo Bovey QC is a senior and eminent Scottish advocate, also qualified at the English Bar and a part time Sheriff, with a commercial, employment and public law practice.
Initially, Dr Culik outlined the current position of EU migrants, including statistical analysis conducted by the Office of National Statistics. He then explored the Brexit debate from the perspective of those in the remaining EU countries.
Firstly, and in stark contrast to the UK, Brexit is not big news elsewhere in Europe. Whilst the UK media is constantly bombarding Britons on both sides of the EU fence with news, reports, analyses and opinions on what is (at least to us) an historic break with Europe, our continental neighbours do not place Brexit very highly on the news agenda. Perhaps even more surprisingly, they do not consider it to be particularly important.
Secondly, Dr Culik discussed the increasingly prominent spectre of xenophobia in other EU countries. As in the UK, the unfortunate presence of xenophobia is undeniable, but again in contrast to the UK, xenophobia in other Member States is not directed towards those from other EU countries but, rather, on those from outside the EU. In fact, Dr Culik mentioned that it is unusual for prejudice to be shown to those from other EU countries.
Thirdly, the perspective amongst citizens of Member States in former Soviet Bloc countries on what is going on in the UK has taken on a form that few of us here would likely expect. To them, the rhetoric on Brexit in the UK actually has communist overtones, since in the past they were faced with movement restrictions being imposed by the communist regimes that they lived under.
Consequently, Dr Culik gave an alternative and interesting perspective on the attitudes towards Brexit and, possibly by extension, on the UK itself.
Kenneth Campbell QC helped to shed light on one of the most pressing issues in the Brexit negotiations: how will Brexit affect UK citizens living in other Member States?
This is not something to be taken lightly, especially given the sheer scale of Britons who have made a home in Europe; as Mr Campbell highlighted, there are around 1.2 million of us living in the EU. Moreover, they have generally relocated to specific areas. Mr Campbell stated that by far the majority (almost 750,000 UK citizens) live in Spain, Ireland and France. At present, Britons living abroad enjoy essentially the same rights as the citizens of those states. However, Mr Campbell warned that with the advent of the UK leaving the EU, there are four areas where we could face radical change. These areas are:
- Healthcare; and
- Social security.
Mr Campbell discussed the possible changes that could occur in each of these spheres and the potential ramifications for those from the UK who live and work in the rest of the EU.
Perhaps one of the concerns which is foremost in the minds of Britons living in Europe is how Brexit will affect their rights of residence. After all, these rights are the foundation of the lives they have built for themselves, and so to put them in jeopardy obviously has significant potential consequences.
Mr Campbell discussed the possibility of introducing visa ‘lite’ procedures, that is some form of less onerous, streamlined or otherwise reduced visa process for those from the UK staying in EU Member States. Of course, how such a procedure would look in its final version remains to be seen, and is largely, as Mr Campbell put it, based on reciprocity.
Mr Campbell also drew attention to the question of whether the changes to residency rights would be retrospective. At the present time, in essence, UK citizens can stay in the Member State in which they reside if they can support themselves financially. Moreover, this is likely to continue to be the case for those individuals under the principle of legitimate expectation in EU (and UK) law.
However, what will be the arrangement in the future for UK citizens who want to go to another EU Member State remains to be seen (being a key part of the Brexit negotiations). Mr Campbell stressed that a uniform approach would be important, which already has a basis in law, but commented that this area of negotiation is being complicated by mass population flows. Consequently, a great deal of uncertainty remains.
Another crucial area of concern is that of the right to work. Essentially, as Mr Campbell explained, if a UK citizen is in a family relationship with an EU citizen then they will continue to enjoy their current rights.
The situation for others is less certain. There are levels of protection currently for third country citizens, but these protections are of course more limited than those that exist for EU citizens. Mr Campbell pointed out that the situation can be mitigated to some extent by work permits as rights flow from obtaining these. However, this is only a permit for the country in which it is issued, so would only create status in that one country rather than across the EU as is provided by our EU membership. For those not currently in a family relationship with EU citizens the future of their employment rights is potentially very uncertain.
Mr Campbell noted that whilst some healthcare rights will in principle be preserved, what will be critical as the negotiations progress is the terms of access for these.
Currently, the UK has reciprocal arrangements with all countries in the European Economic Area (EEA). Mr Campbell surmised that we might expect existing arrangements to continue, though given the anticipated change in the landscape of Europe after Brexit there will be different implications, which have to be addressed.
Mr Campbell felt that social security was a particularly complex issue. Unlike younger adults of working age, he argued that exit would be most likely to affect UK citizens living in Europe who have retired or are semi-retired.
Mr Campbell drew attention to the fact that the UK already has some social security arrangements with countries outside the EU, and in particular with pension schemes. Mirroring these arrangements could be an option prospectively in preserving social security arrangements with the EU. For pensions, and other financial schemes, the real question will be whether the value will be sustained. Ultimately, Mr Campbell thought that this was a question of domestic law.
Mr Campbell summed up by arguing that the key point in all the Brexit negotiations is that reciprocity cuts both ways. Thus, the UK must be cautious in how it treats EU citizens living here as this will have implications for those from the UK who have made lives in Europe.
Maria Fletcher considered the converse issue to Mr Campbell, that is, the impact that Brexit is likely to have on EU citizens currently living in the UK.
Miss Fletcher was critical of the simplicity displayed in attitudes toward immigration. She explained that in the current media debates on Brexit, immigration is used in a wide-ranging and blanket fashion, which confuses the broad variation in immigration status. For example the procedure for those seeking asylum is very different to that for those who are migrating to the UK from outside the EU, who in turn are subject to different rules to individuals who are coming to the UK from within the EU under the principle of free movement of people.
Furthermore, Miss Fletcher rejected the notion (typically found in much of the media) that immigration is uncontrolled. She explained that, by contrast, there are clear rules in place to regulate immigration. Our current law requires immigrants to show that they are engaged in economic activity or self-sufficiency, and must be a national of a Member State, which she argued represents significant control on immigration.
However, Miss Fletcher hypothesised that free movement is likely to be limited, or even suspended, as a consequence of Brexit.
Miss Fletcher then moved on to discuss the Citizens’ Rights Directive, which allows EU nationals to stay in the UK for three months. However, for those staying for more than three months, they must be in work; self-employed; enrolled in a course of study; self-sufficient or a job seeker with a genuine chance of finding employment. Moreover, in many of these categories there are insurance requirements and the obligation to provide evidence that you can support yourself in the UK.
Miss Fletcher explained that one of the rights that EU nationals in the UK currently have is the right to bring their families with them to the UK if they are exercising one of the above mentioned rights, irrespective of the nationalities of their family members. This, she argued, ensures that the right to free movement is meaningful and accessible.
With regard to how we should respond to EU citizens living and working in the UK after Brexit, Miss Fletcher advocated a bespoke regime which should be devised within our domestic immigration rules. This should seek to ensure that the rights people have accrued can be preserved. By example Miss Fletcher mentioned the particular right to residence after living in the UK for five years and ensuring that someone who is on the path to obtaining residence in this way be entitled to continue to pursue the right. She asserted that the UK Government should be leading the way on this and proposing it as a solution.
Mr Mungo Bovey QC addressed primarily the different types of citizenship under EU law and how these are likely to be affected by Brexit.
Mr Bovey began by outlining the three categories of citizen which currently exist in relation to the EU:
- EEA; and
- Third country.
Brexit will leave only two: EEA and third country.
Mr Bovey explained that the most prominent feature of being a third country citizen is that you require a visa to stay in the UK. Thus, if those in the UK from the EU and vice versa are deemed to be third country citizens after Brexit, then they are likely to require a visa to stay in the UK or EU. By contrast, EU rules on immigration and within the single market for EEA nationals do not vary from country to country, and so a uniform approach exists, although, the UK and Ireland, already have an opt out of the rules that govern this.
Different possibilities for dealing with citizenship questions post-Brexit were explored by Mr Bovey, who outlined that whilst visa-free movement of people might come to an end after Brexit for EEA citizens, this does not necessarily have to be the case. He used the example of Turkey, which relies heavily on tourism so has a cheap visa which can be received at the airport. By contrast, the UK asks those coming here from Turkey to provide:
- Evidence that the individuals in question can support themselves;
- Information on which relatives of theirs are here in the UK;
- Wage slips for the past six months.
Since reciprocity cuts both ways, Mr Bovey highlighted that this could give UK citizens an idea of what they may face in future when travelling to the EU. For him, two things were fairly certain:
- The rules will be the same in both directions (i.e. how we treat EU citizens coming to the UK will determine how UK citizens are treating when travelling in the EU); and
- The rules will be the same for all the EU countries.
A few interesting questions from the audience followed the discussion.
Firstly, can we obtain associate membership, whereby the UK is allowed to retain rights in the EU for a fee?
Mr Campbell said that he thinks that this would require a treaty change, which may be politically unattractive and needs unanimous consent of other Member States, some of which would require referenda. Mr Bovey answered that given the political climate in the EU, such negotiations are unlikely to be offered, with which Dr Culik agreed.
Secondly, who can actually take away EU citizenship?
Mr Bovey felt that the EU can ultimately take it away. He asserted that it was hard to see how one could litigate the (undoubtedly interesting) point of someone making a claim because they are currently an EU citizen and are having this citizenship removed. It would likely be necessary to argue this through the domestic courts all the way to the Supreme Court, which may refer matters to the European Court, or not if it considers that such a referral is clearly not required. After Brexit, in order to raise this argument it would probably be necessary to litigate this in another country, where the applicant would obviously not be able to recover what they had lost. The case law on citizenship is based on the fundamental aim of avoiding statelessness and that is why the loss of passports etc. is regarded as fundamental. The loss of EU citizenship might not be viewed the same way so the case law on citizenship may not assist that much, since the rescinding of EU citizenship would not leave an individual stateless. As a result, Mr Bovey felt that the Court is much less likely to be concerned.
The evening raised some interesting points for discussion in the ensuing post Article 50 negotiation period, with few outcomes as yet certain. We thank the speakers and the EHRC for a very interesting discussion. JUSTICE will continue to monitor how the Brexit process occurs to ensure that fundamental rights are, so far as possible, retained.
More information on the event can be found here on the JUSTICE website.