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EU citizens’ rights post Brexit: why direct effect beyond the EU is not enough

  • Stijn Smismans
Abstract

Brexit – EU citizens’ rights – Direct effect beyond the EU – The Withdrawal Agreement does not protect citizens properly – Copying substantive provisions of EU law and parts of the EU’s supranational features, such as direct effect, does not provide equal protection for EU citizens once a country is no longer part of the EU – UK-specific implementation measures to be set out in Withdrawal Agreement or Protocol – Guarantees also to be set out in primary legislation – UK Government intends to act to a great extent via secondary legislation – relationship between the Withdrawal Act and the Withdrawal Agreement and Implementation Bill

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Professor of EU Law and Director of the Centre for European Law and Governance at Cardiff University. I would like to thank Monique Hawkins, Luke Piper, Laurent Pech, Joelle Grogan and three anonymous reviewers for useful comments on an earlier version of this paper.

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1 Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community highlighting the progress made (coloured version) in the negotiation round with the UK of 16–19 March 2018, TF50 (2018) 35 – Commission to EU27, 19 March 2018.

2 In this article I do not address the concept of EU citizenship. Surprisingly, the conceptual debate on EU citizenship in the context of Brexit has particularly focused on the idea of ‘associate citizenship’, promoted by Guy Verhofstadt, which would guarantee EU citizenship rights for British nationals even if not yet residing in the EU. On the profound conceptual and legal problems of that proposal, see M. van den Brink and D. Kochenov, ‘A critical perspective on associate EU citizenship after Brexit’, DCU Brexit Institute Working Paper (2018) No. 5, <papers.ssrn.com/sol3/papers.cfm?abstract_id=3175318>, visited 14 July 2018. For other interesting contributions on EU citizenship post-Brexit see Mindus, P., European Citizenship after Brexit (Palgrave, 2017); and Reynolds, S., ‘(De)constructing the road to Brexit: Paving the way to further limitations to the free movement and equal treatment?’, in D. Thym (ed), Questioning EU Citizenship: Judges and the Limits of Free Movement and Solidarity in the EU’ (Hart 2017) p. 57 . While much remains to be said on EU citizenship conceptually in the light of recent developments, the focus of this paper is on identifying the procedural mechanisms needed to protect EU citizens in the UK properly.

3 The Week, ‘Who are the Windrush Generation and how has the scandal unfolded’, <www.theweek.co.uk/92944/who-are-the-windrush-generation-and-why-are-they-facing-deportation>, visited 14 July 2018.

4 European Union (Withdrawal) Act 2018 (c 16) 26 February 2018.

5 Home Office, EU Settlement Scheme: Statement of Intent, 21 June 2018.

6 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ L 158, 30.4.2004, p. 77).

7 Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ L 255, 30.9.2005, p. 22).

8 Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (OJ L 141, 27.5.2011, p. 1). Regulation (EC) No. 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ L166, 30.4.2004, p. 1); and Regulation (EC) No. 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No. 883/2004 on the coordination of social security systems (OJ L284, 30.10.2009, p. 1).

9 The concept of ‘acquired rights’ as traditionally used in international law has limited scope to protect all the rights provided by EU citizenship. See House of Lords, European Union Committee, ‘Brexit: Acquired Rights’, 10th report of session 2016–17, HL Paper 82, 14 December 2016. Yet, in a report for the European Parliament, Volker Roeben et al. develop the argument of ‘continuity’ on the basis of EU citizenship. See V. Roeben et al., The Feasibility of Associate EU Citizenship for UK Citizens Post-Brexit, A study for Jill Evans MEP, July 2017. I do not agree with the authors that such continuity is possible for those who have never exercised the free movement rights, but the argument merits elaboration for those who have. This, though, is beyond the scope of this paper.

10 Throughout the negotiations the EU has always referred to its existing concept of ‘permanent residence’, while the UK negotiators used the concept of ‘settled status’ instead, which is also the concept used in the Government’s proposal on how it will implement the registration system. See EU Settlement Scheme: Statement of Intent, supra n. 5. ‘Settled status’ is sometimes used interchangeably with ‘indefinite leave to remain’, which is a key concept of UK immigration law.

11 Giubboni, S., ‘Free movement of persons and European solidarity, 13 European Law Journal (2007) p. 360 ; Thym, D., ‘The elusive limits of solidarity: residence rights of and social benefits for economically inactive union citizens’, 52 Common Market Law Review (2015) p. 17 ; Spaventa, E., ‘Earned Citizenship: Understanding Union Citizenship Through its Scope’ in D. Kochenov (ed.), EU Citizenship and Federalism: the Role of Rights (Cambridge University Press 2017) p. 204 ; Thym, D. (ed.), Questioning EU Citizenship Judges and the Limits of Free Movement and Solidarity in the EU (Hart 2017); Pennings, F. and Seeleib-Kaiser, M. (eds.), EU Citizenship and Social Rights Entitlements and Impediments to Accessing Welfare (Elgar 2018).

12 Art. 14 Directive 2004/38/EC.

13 Art. 17(1)–(3) Withdrawal Agreement.

14 Art. 17(4) Withdrawal Agreement.

15 Independent Chief Inspector of Borders and Immigration, ‘Inspection Report of the hostile environment’ (October 2016), <www.gov.uk/government/publications/inspection-report-of-hostile-environment-measures-october-2016>, visited 15 July 2018; and K. McDonald, ‘What is Hostile Environment, Theresa May’s policy that led to the Windrush scandal and other problems’, News The Essential Daily Briefing, 17 April 2018, <inews.co.uk/news/politics/what-is-hostile-environment-theresa-may-windrush-eu-citizens-legal-immigrants/>, visited 15 July 2018.

16 Reports by the Parliamentary and Health Service Ombudsman show that the Home Office is one of the main departments receiving complaints and has the highest uphold rate. In the second quarter of 2017, 47% of the 14,170 determined appeals against Home Office immigration decisions were granted. See House of Commons Home Affairs Committee, ‘Immigration Policy: basis for building consensus’, Second Report of 2017–2019, HC500, 10 January 2018, para. 43.

17 295,000 EU citizens were granted permanent residence status in the period 2004–2017. 58% of those were in 2016 and 2017. See The Migration Observatory, ‘Unsettled Status. Which EU citizens are at risk of failing to secure their rights after Brexit?, 12 April 2018, <migrationobservatory.ox.ac.uk/resources/reports/unsettled-status-which-eu-citizens-are-at-risk-of-failing-to-secure-their-rights-after-brexit/>, visited 15 July 2018.

18 In the period 2004–2017, 148,000 EU citizens obtained British citizenship: ibid., n. 16.

19 Applications by EU citizens went up slightly after introducing this requirement, but went up dramatically after the Brexit referendum, see data in P. Duncan and L. O’Carroll, ‘Sharp rise in number of EU nationals applying for UK citizenship’, The Guardian, 14 March 2018, <www.theguardian.com/uk-news/2018/mar/14/sharp-rise-in-number-of-eu-nationals-applying-for-uk-citizenship>, visited 15 July 2018.

20 Reiss Edwards, Immigration Lawyers London, ‘Home Office Rejects over 28% Permanent Residency Applications – Report’ at <immigrationlawyers-london.com/blog/high-permanent-residence-rejection-rates.php>, visited 15 July 2018.

21 A. Herbeć, ‘The scandal of CSI, the little-known loophole used to deny EU citizens permanent residency’, available at <blogs.lse.ac.uk/brexit/2017/03/17/disheartened-and-disappointed-the-government-and-universities-have-failed-eu-citizens-over-comprehensive-sickness-insurance/>.

23 EU Settlement Scheme: Statement of Intent, supra n. 5. This will take the form of an amendment of the Immigration Rules; see discussion below.

24 HM Government, ‘Technical Note. Citizens’ rights – Administrative procedures in the UK’, 7 November 2017, para. 11, <www.gov.uk/government/publications/citizens-rights-administrative-procedures-in-the-uk>, visited 15 July 2018; and EU Settlement Scheme: Statement of Intent, supra n. 5.

25 ‘Technical Note. Citizens’ rights – Administrative procedures in the UK’, supra n. 24, para. 6.

26 Annex A to the Statement of Intent.

27 E.g. Art. 4 Withdrawal Agreement addresses particularly how the UK should implement the Withdrawal Agreement; Art. 151 makes the preliminary reference procedure applicable to the UK, while Art. 152 requires the creation of an independent authority to monitor implementation of the Withdrawal Agreement only in the UK.

28 For a detailed proposal on what such a Protocol could look like, see S. Smismans, ‘Brexit and EU Citizens’ Rights: A proposal for a Protocol’, EU Law Analysis, 12 June 2018, <http://eulawanalysis.blogspot.com/2018/06/brexit-and-eu27-citizens-rights.html>, visited 15 July 2018.

29 E.g. the European Commission published its draft Withdrawal Agreement on 28 February 2018, after which it negotiated with the UK, and presented an UK-EU draft Withdrawal Agreement on 19 March. The Member States had then little more than a week to consider whether they could agree with it at the European Council meeting of 22 and 23 March 2018.

30 See M. Elliott, ‘The Brexit Agreement and citizens’ rights. Can Parliament deliver what the Government has promised?’, Public Law for Everyone, 11 December 2017, <publiclawforeveryone.com/2017/12/11/the-brexit-agreement-and-citizens-rights-can-parliament-deliver-what-the-government-has-promised/>, visited 15 July 2018.

31 This statement appeared to be mere covering up of the initial UK negotiation position that they would not accept direct effect, as stated in para. 3 of the ‘Technical Note: Implementing the Withdrawal Agreement’ (13 July 2017): ‘It would be both inappropriate and unnecessary for the agreement to require the UK to bring the EU concept of direct effect into its domestic law. The same substantive result can be achieved if the Withdrawal Agreement requires the UK to give citizens specified rights, and the UK enacts domestic legislation whose effect is to bestow those rights. Not only will EU citizens be able to enforce those rights through the UK’s domestic legal system, but the UK’s compliance with its international obligations can also be enforced using whatever mechanisms the agreement includes for the resolution of disputes’; at <www.gov.uk/government/publications/technical-note-on-implementing-the-withdrawal-agreement>, visited 15 July 2018.

32 European Parliament, Directorate General Internal Policies of the Union, ‘Comparative Study of Transposition of EC law in the Member States’, June 2007, PE 378.294.

33 The first paragraph of the article also raises the question of whether provisions in the Withdrawal Agreement other than those of the citizens’ rights part can have direct effect. This would follow from the broad requirement that the UK has to give the same legal effect to Union law referred to in the Withdrawal Agreement as it produces within the Union. At the same time, it is only in relation to citizens’ rights that the Withdrawal Agreement clearly wanted to avoid any doubt on the matter.

34 See Elliott, supra n. 30; and, more positively, M. Gordon, ‘Parliamentary Sovereignty and the Implementation of the EU Withdrawal Agreement’, UK Constitutional Law, 17 January 2018, <ukconstitutionallaw.org/2018/01/17/mike-gordon-parliamentary-sovereignty-and-the-implementation-of-the-eu-withdrawal-agreement-part-i/>, visited 15 July 2018.

35 R (Jackson) v Attorney General [2005] UKHL 56.

36 Thoburn v Sunderland City Council [2003] QB 151 (Div Ct).

37 R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3.

38 R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.

39 Ibid.

40 R. Kelly, ‘The European Union (Withdrawal) Bill: scrutiny of secondary legislation (Schedule 7)’, House of Commons Library Briefing Paper Number 08172, 7 December 2017, p. 8.

41 Ibid.

42 Between 2012 and 2018 alone, UK immigration rules have been changed 57 times in secondary legislation: <www.gov.uk/government/collections/archive-immigration-rules>.

43 I have argued elsewhere that the only way to ensure a properly independent and functioning monitoring authority is by establishing a UK-EU Joint Authority. See S. Smismans, ‘EU citizens in the UK are in a particularly weak position and need an independent authority to monitor their rights’, LSE Brexit Blog, 21 April 2018, <blogs.lse.ac.uk/politicsandpolicy/eu-citizens-in-the-uk-are-in-a-particularly-weak-position-and-need-an-independent-authority-to-monitor-their-rights/>, visited 15 July 2018.

44 On the behavioral factors influencing the willingness of national judges to refer, see Broberg, M. and Fenger, N., Preliminary References to the European Court of Justice, 2nd edn (Oxford University Press 2014) p. 49 .

45 Tridimas, T., ‘Knocking on heaven’s door: fragmentation, efficiency and defiance in the preliminary reference procedure’, 40(1) Common Market Law Review (2003) p. 9 at p. 38.

46 The Withdrawal Agreement is not explicit on this. Art. 4(1) of the Agreement states that where the Agreement provides for the application of Union law, it should produce ‘the same legal effects as those which it produces within the Union and its Member States’. ‘The same legal effects’ would imply the opportunity to claim Francovich damages. However, aspects of the Withdrawal Agreement, such as Art. 17(1) defining the constitutive registration system, are not Union law to which the Withdrawal Agreement refers, but new provisions set by the Agreement itself. It can be questioned whether ‘same legal effects’ can be extended to such provisions, which would make the entire Agreement Union law, which seems contradictory to the intention of Art. 4(1).

47 ECJ 30 September 2003, Case C-224/01, Gerhard Köbler v Republic of Austria.

48 Procedures for the Approval and Implementation of EU Exit Agreements: Written statement, HCWS342, 13 December 2017.

49 R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.

50 J. Simson Caird, ‘Parliament and the Withdrawal Agreement: The “Meaningful Vote”’, UK Constitutional Law Blog, 9 February 2018, <ukconstitutionallaw.org/>.

51 Procedures for the Approval and Implementation of EU Exit Agreements, supra n. 48.

52 The European Union (Withdrawal) Bill (HC Bill 5) as introduced, 13 July 2017, <publications.parliament.uk/pa/bills/cbill/2017-2019/0005/cbill_2017-20190005_en_1.htm>, visited 15 July 2018.

53 The initial version of the Withdrawal Bill as introduced even gave the power for such Regulation to amend the Withdrawal Act itself.

54 European Union (Withdrawal) Bill (HL Bill 79), as introduced in House of Lords, 18 January 2018, <publications.parliament.uk/pa/bills/lbill/2017-2019/0079/lbill_2017-20190079_en_1.htm>, visited 15 July 2018.

55 From this perspective, the Grieve amendment has largely reduced the usefulness of the section 9 powers, although they remain available (prior to exit) for as far as the Implementation Bill does not provide clear delegation powers.

56 Technical Note. Citizens’ rights – Administrative procedures in the UK’, supra n. 24, para. 4.

57 The transition period runs from first day after exit day (29 March 2019) until 31 December 2020, and ensures the full application of EU law in the UK, including that all those arriving prior to that date can still apply for residence status. In the subsequent six months there is an additional ‘grace period’, during which people who arrived prior to 31 December 2020 can still register.

58 EU Settlement Scheme: Statement of Intent, supra n. 5, p. 22, indent 5.20.

59 Ibid., p. 22, indent 5.18.

60 The Statement of Intent repeatedly uses the concept ‘indefinite leave to remain’ interchangeably with ‘settled status’. This is highly confusing because indefinite leave to remain is a well-established concept of immigration law, which is an inferior status to the rights set out in the Withdrawal Agreement, which the Statement of Intent proclaims to respect.

61 Joint Council for the Welfare of Immigrants, ‘How Immigration rules evade democracy’, 22 December 2010, <www.jcwi.org.uk/2010/12/22/how-immigration-rules-evade-democracy>, visited 15 July 2018.

62 EU Settlement Scheme: Statement of Intent, supra n. 5, p. 6, indent 1.9 and p. 22, indent 5.19.

63 The Statement of Intent only states that the ‘practical arrangement’ of the scheme will, in the future, have to reflect in full the agreement on citizens’ rights reached with the EU: ibid., p. 6, indent 1.8.

64 I have argued elsewhere how the citizens’ rights provisions should be ‘ring-fenced’ from other withdrawal negotiation topics, so that these rights would be guaranteed even if the rest of the Withdrawal Agreement fails, see S. Smismans, ‘Brexit: a separate citizens’ rights agreement under Article 50 TEU’, Eutopialaw blog, 16 June 2017,

<eutopialaw.com/2017/06/16/brexit-a-separate-citizens-rights-agreement-under-article-50-teu/>, visited 15 July 2018.

* Professor of EU Law and Director of the Centre for European Law and Governance at Cardiff University. I would like to thank Monique Hawkins, Luke Piper, Laurent Pech, Joelle Grogan and three anonymous reviewers for useful comments on an earlier version of this paper.

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