On EU-UK expat negotiations

Here are some quick thoughts on the offer Theresa May has made to EU citizens who want to remain in the UK after Brexit, and the earlier position put forward by the European Commission. Any deal, it is said, will be reciprocal, but my emphasis here is on the UK side of the deal.

Rights of residency

May’s offer of full rights after five years of residence in the UK seems to meet the demand set out by the European Commission in its position paper. This would keep in place the existing right under EU law. Neither May nor the Commission have said anything about voting rights, and one or two people have foreseen possible disagreement here. It would seem sensible that voting rights remain a separate privilege that comes with citizenship – for various reasons, but in this context because there is a possible advantage in encouraging long-term EU residents to become citizens under UK law alone, rather than remain residents under UK and EU law simultaneously (discussed further below).

Family rights

More difficult. May is purporting to offer long-term EU citizens full rights and a normal life in the UK, but the offer is hollowed of much of its meaning if, in some instances, those things can only be enjoyed at the expense of splitting up a family. That seems a good argument for agreeing to the Commission’s demand that, after Brexit, expats continue to enjoy the EU law right to share UK residency with their immediate family. Unfortunately, the argument against is also fairly strong – as the EU right to bring over family is more generous than the same right under UK law (a UK citizen must pass an earning threshold before their non-EU spouse can join them in the UK), agreeing to the Commission’s position would mean a two-tier legal system with EU expats enjoying greater rights than UK citizens. Aside from being obviously invidious, and probably unfair in a way that need not at all be xenophobic (unless it is xenophobic to say that citizens should have greater civil rights than on-citizens), the main problem is that having different laws for different sets of people creates uncertainty, and unless there is proper justification for the difference it makes the law seem arbitrary, and offends our basic sense of equality before the law.

So I’m not entirely sure how May could meet the Commission’s position in a satisfactory way. The Commission is unlikely to accept an offer to replace EU expats’ family rights with the equivalent UK rights, so that EU spouses would have to meet an earning threshold. The UK is similarly very unlikely to change its own laws to make them equivalent to EU law – it would feel a lot like duress. Could May and Davis, perhaps, offer an extended period within which EU expats could bring family members over under EU law – i.e. a period longer than the five-year residency minimum – and after that the anomaly would end and EU expats would revert to UK family rights?

The other issue regarding family rights is how derived rights will work. Section II of the Commission’s position paper envisages ‘current and future family members’ inheriting the right of residence of EU citizens living in the UK at the time of Brexit. Hopefully the text of the agreement will state unambiguously that the rights created by the agreement can only be inherited once – so, e.g., an EU citizen who at the point of Brexit had lived in the UK for five years or more would enjoy residency rights, and also be able to pass them on to her child, but that child would not be able to pass the same rights on to his children. The second generation, i.e. the original EU citizen’s grandchildren, would then have the option of becoming UK citizens. If the agreement is unclearly worded regarding the inheritability of residency rights, there arises the unappealing prospect of a long-term two-tier legal system, and (if the agreement is to be enforced by the European Court of Justice) the possibility of UK elected ministers being indefinitely liable to the ECJ, even long after Brexit.

Right of return

The wording of the Commission’s position paper implies that the right to permanent residency after five years (as well as the other rights) should apply to ‘EU27 citizens who reside or have resided in the UK at the date of entry into force of the Withdrawal Agreement.’ It is possible that too much shouldn’t be read into this, as the document is a position paper and not a precisely-worded statute – ‘those who have resided’ may be intended to cover the group of people later specified at II(e), i.e. those who have left the UK but should be entitled to return in order to claim an accrued pension. Nevertheless, read literally the wording implies that the Commission wants any EU citizen who has at any point resided in the UK to have the right to return to the UK, even after Brexit, to enjoy ‘grandfathered’ EU rights.

If this is indeed what the Commission is proposing, then I hope May and Davis will resist it as a disproportionate and unreasonable proposition.

1. The stated political aim of any expats agreement is to prevent disruption to the lives of EU citizens living in the UK, and vice versa. Allowing right of return cannot be a rational means of achieving that aim, because its purpose is not to prevent disruption to lives, but to prevent loss of a life chance (i.e. the opportunity to return at some point in the future). Loss of an opportunity is often unfortunate, but it is not the same as disruption or upheaval – nor is it clear that the UK should take on the extent of liability proposed by the EU merely for the sake of allowing EU citizens who once lived in the UK to keep their options open about a possible return.                                                                                                        
2. It would be unreasonable to ask UK ministers to agree to this proposition when they cannot know the extent of the liability they would be agreeing to – how many EU citizens have lived in the UK, and how many of them might return? The Commission seems to propose that an indeterminate number of people would be entitled to an expensive range of services, and would possibly be protected by a foreign court with the power to bind UK ministers – it could not be reasonable to assent to such an unclear and uncertain proposal.                                                                                                                                                                     
3. The Commission, as with all proposals in the position paper, proposes a reciprocal arrangement for UK citizens in the EU. However, the relative liabilities are not at all reciprocal – a large and very populous region openly accepting expats from a much smaller and less populous one, is not equivalent to a small region having to freely accept expats from a much larger and more populous one.                                                                                                                                   
4. Even if one accepts, as I do, that loss of the right to return to the UK would be inconvenient for those EU citizens who had left the UK with concrete plans to return, and that this inconvenience should be averted by any withdrawal agreement, the Commission’s proposal of an open-ended right of return is an excessive and disproportionate means of averting this inconvenience, when it could effectively be averted by the much more modest ‘grace period’ already proposed by Theresa May. A grace period of two years following the end of the Article 50 negotiations would give those planning a return just under four years to make their decision – it seems reasonable, though not indisputable, to say that that would be a sufficient period of time to keep the door open. It does, however, remain to be seen whether the proposed grace period would apply in this way.                                                                                                                                                                                                                                                         
5. Finally, the Commission and the EU as a whole must accept that a key purpose of the Brexit negotiation is for the UK to leave the EU’s sovereignty-pooling system, and to regain the elements of national sovereignty it had previously ceded as an EU member. The right of return proposal does not seem consistent with that purpose – it accepts that the UK after Brexit will no longer be part of the EU's shared home for EU citizens, but also insists that anyone who has lived here should retain a key to the house. You don’t really get your house back if an indefinite number of former tenants are allowed to keep copies of the front door key. 

Again, all of the above section will be irrelevant if the EU is in fact not asking for a right of return for its citizens.

Jurisdiction

The Commission also proposes that the withdrawal agreement be enforced by the European Court of Justice. This would mean that EU citizens in the UK after Brexit would continue to be protected by the same laws, as applied by the same court, as before – it would promote legal certainty. It would also mean, however, that as a matter of international law UK ministers would be treaty-bound to obey the court of a body that the UK no longer benefitted from as a member.

There seem to be grounds for saying the Commission position is over-stated, as one would expect in a negotiation, and not a proposal that could be reasonably agreed to.

1. There is no reciprocity if the ECJ enforces the rights of EU citizens in the UK, and of UK citizens in the UK.                                                                                                                                                                                                                                                                                
2. Under articles 221 and 224 of the Treaty of Nice, the ECJ must consist of one judge per member state. The Commission proposal is that the UK accept jurisdiction without representation. It is bold to ask the UK to accept continued ECJ jurisdiction when in all other respects it will be a third-party nation with regards the EU; it is outright unreasonable to ask the UK to accept this jurisdiction in a form that is unfair according to the EU’s own criteria. Continued jurisdiction is controversial enough – continued jurisdiction in an unfairer form is unacceptable.                                                                                                                                                                                                                                 
3. I note, though I haven’t really researched this yet, that the reason EFTA has its own court, instead of coming under the ECJ, is because the ECJ insisted that anything else would be unlawful: it would have been a violation of the treaties to give EU institutions power of oversight against the non-EU member states of EFTA. So how would it be lawful for the ECJ to have jurisdiction over the UK after its withdrawal? I caveat this: first, there could be any number of reasons why the decision on the EFTA court is irrelevant; second, any withdrawal agreement would presumably be itself an amendment of the treaties, and so would create new provisions allowing the ECJ to have power of oversight over the UK even as a non-member state. Fine, it would be strictly lawful, but only at the cost of sacrificing what seems like a valid principle – it seems entirely right that EU institutions should not have jurisdiction over non-EU member states.                                                                                                                                                                                                                                                          
4. Finally, the continued jurisdiction of the ECJ would cement in law a two-tier system. It also hints at a principle that says that jurisdiction is not geographical, or based on settled seats of government, but that free-floating citizens carry jurisdiction with them, even to the point of intruding their jurisdiction upon the jurisdiction of the nation states where they live. This feels wrong. Perhaps the EU will argue, as English courts once did about their own jurisdiction, that ECJ jurisdiction should ‘follow the flag’ wherever EU citizens go. But to do so would confirm that the modern EU is as expansionist, and as contemptuous of the sovereignty of foreigners, as the British Empire once was. If it were the case that the citizens in question formed a coherent body of people, united by common cause, then I would be more open to accepting that formed an ‘enclave’ of people to be protected by their own jurisdiction. But they are not. That the Commission thinks the disparate interests of disparate individuals are sufficient to outweigh a nation state’s claims to unitary sovereign jurisdiction gives some flavour of how radically (and, in my opinion, how prematurely) it rejects the sovereignty of nation states.

I conclude by pointing out that the Commission’s insistence on continued ECJ jurisdiction might be fairly easily defeated. First, the position of the EU Council, which determines the general direction of Commission policy and law-making, is notably equivocal on ECJ jurisdiction post-Brexit: it insists that the ECJ rule on disputes still unresolved at the date of Brexit, but says that post-Brexit there should be merely ‘appropriate dispute settlement and enforcement mechanisms’ which ‘bear in mind’ the role of the ECJ. It seems that the Commission perhaps overstated its brief.

Second, the Commission has previously shown imaginativeness in agreeing enforcement mechanisms for trade deals. The Association Agreement between the EU and Ukraine, for instance, provides for an independent arbitral tribunal for the resolution of disputes between the parties (see ch 14 of this 2,135-page monster). It is not idle to hope the EU and UK can agree on a similar middle path – a specially constituted court including both EU and British judges, for instance.