Tuesday, 27 June 2017

Expat EU-UK negotiations – update

Some of the matters I touched on in my previous post are discussed, with much fuller legal reasoning, by Martin Howe QC, Francis Hoar and Gunnar Beck in their excellent paper on 'Rights of EU Citizens in the UK after Brexit'.

I also noticed the following in a letter to the Times today by the eminent K P E Lasok QC:
The normal position under English law is that when a person has acquired rights they retain them should the law change (unless there is express provision otherwise). That reflects well-established legal principle and is recognised not just by the common law but also by civil law systems. 
The expectation would therefore be that people who had exercised their EU law rights before Brexit took effect (EU nationals in the UK and UK nationals in other EU countries) would retain their acquired rights after Brexit.
That has the merit of being fair and consistent with legal principle. 
Unless I'm being thick and missing something obvious, wasn't this exactly what Miller was about? In it, the Supreme Court ruled that rights acquired under EU law could be taken away, but only by express parliamentary say-so. Parliament gave its say-so in the Article 50 vote – the expectation that EU and UK nationals should retain their EU-acquired rights was therefore expressly rebutted when Article 50 was triggered according to the proper constitutional process, and completion of the Article 50 process will extinguish those rights. 

Retention of rights for those who would otherwise be left high and dry is desirable and will almost certainly happen – but it will be under the new legal order created by the withdrawal agreement, not under the presumed effect of laws rejected by both Parliament and the electorate.

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