Citizens’ rights in a No Deal scenario (‘cliff-edge Brexit’)
No Deal would be catastrophic for EU citizens living in the UK and British citizens living in the EU. Their status and their rights will become extremely precarious. This information will focus on the situation for EU citizens in the UK - for British in Europe visit their website www.britishineurope.org (see their paper on No Deal).
The only good news: EU Citizens in the UK who have not already obtained settled status or pre-settled status will not immediately fall into legal limbo, because the UK government passed the European Union (Withdrawal) Act 2018 (EUWA). This act ensures that EU laws which applied on exit day will continue to apply after exit: and it is these laws which have formed the legal basis on which EU citizens and their family members can live in the UK.
The bad news: the Immigration Bill published in December 2018 will override this and end EU-derived rights for EU citizens in the UK. They will instantly be stripped of their legal basis for remaining in the UK. The Government has said that during a grace period it will not ask employers or landlords to check for their status, this results in a totally unacceptable and unworkable situation where citizens have no legal status but are tolerated in the country ‘by the grace of the Home Office’.
What happens to Settled Status?
The Government has stated that this scheme will apply in case of no deal. However, the essential right to appeal agreed in the Withdrawal Agreement will fall away. In the case of an application being rejected, citizens will not be able to lodge a complaint with the EU Commission or the CJEU for a violation of their rights. Furthermore, they will have no access to legal aid, and may struggle to access their data due to the immigration exemption to the Data Protection Act 2018.
The Government published a no deal policy for citizens’ rights paper in December 2018, which sets out that citizens with settled or pre-settled status will have severely reduced family reunion rights; after March 2022 it will for example be extremely difficult for EU citizens to bring elderly parents to the UK.
More importantly, the rights associated with this new status will be further eroded in case of no deal: the UK cannot unilaterally deal with issues which require co-ordination with the EU, such as access to healthcare, and aggregation of social security contributions and pension entitlements - this will particularly affect citizens who might want to return to their country of origin, or who have worked in more than one EU member state in the past.
As we have seen with the proposed Immigration Bill, the continuing application of EU law under the EUWA is unlikely to last long. In the future, if the Government intends to change the status of EU citizens already in the country, it can do so with few restrictions and fewer legal routes for EU citizens to object.
The solution: ring-fencing the agreement on citizens’ rights under Article 50, i.e. before Brexit day.
Given that these issues have already been agreed in the draft Withdrawal Agreement, it would be far simpler for the EU and the UK to jointly ring-fence and legally implement the deal already agreed. The unanimous vote for the Costa amendment (on the 27th February 2019) asking the British prime minister to explore this further with the EU was a crucial first step. The Dutch parliament followed suit on the 2nd April, urging the Dutch Prime Minister to push for ring-fencing. There is current resistance from the European Commission, and the3million are lobbying the European Council to give the Commission a new mandate to sit down with the UK side and discuss ring-fencing. There is a moral obligation to protect the rights for a finite group of five million people who got caught up in this messy divorce. And time is running out.
Why couldn’t this be done after Britain leaves the EU?
In short: the obstacles to working this out post-Article 50 are time, political will and legal uncertainty.
A no deal outcome is likely to create some political ill-will that could delay or derail all 28 countries agreeing to preserving the full amount of rights. Post Article 50 the process requires ratification in all national parliaments whereas it currently only needs a qualified majority in the European Council and the consent of the European Parliament (no national ratifications required).
Not only would this lead to potentially long delays in sorting the issue, it also leaves five million people in legal limbo: between Brexit day and whatever new solution might be adopted later, they will depend on national rules which vary and often fall short of current provisions – British citizens in the EU for example will be given the lesser status of third country nationals.
Finally, it is not certain whether any deal negotiated after Brexit could emulate the Citizens’ Rights parts of the Withdrawal Agreement, due to the EU concept of ‘competence’. As an example, consider family reunion rights. After a no-deal Brexit, British citizens in the 27 EU Member States become third country nationals. The Member States each have their own domestic immigration legislation, so they will largely be able to determine the rights of the British in their country. If a new negotiation on citizens’ rights starts between the EU and the UK after a no-deal Brexit, the EU (as an institution) would be unlikely to get all 27 Member States to surrender their ‘Member State competency’ in order to put residence rights back into the negotiation. Given that every single national parliament would need to ratify any new agreement, it is hard to see how any post-Brexit negotiations would reinstate the family reunion rights that have been lost.