A Sudden Loss of Rights
Abstract This chapter presents the problem of legal uncertainty afflicting second country nationals in the UK and British citizens turning from expats to post-European third country nationals. First we look at the case of European citizens living in the UK and then we look at British citizens residing in other parts of the Union. Real-world cases are presented. The narration of the cases enables the reader to appreciate the multitude of effects and the layers of issues involved. They also allow pointing out how dramatic a change like Brexit may be in the lives of those involved. The reader who feels comfortable in mastering the legal complexities affecting those who have relied on free movement in making their life choices can move on to the next chapter.
Keywords European citizenship • Brexit • Second country national • Third country national • United Kingdom • Freedom of movement • Right of residence • EU law • Migration law
There is a lot of uncertainty about the future situation of second country nationals in the UK and of British nationals in other parts of the EU. There are political reasons for fearing that second country nationals after Brexit may face a ‘dramatic loss of rights’ (Kochenov 2016a). To some, this is ‘one of the most serious risks of a UK withdrawal from the EU’ (Douglas-Scott 2016). As evidenced by Jo Shaw, ‘UK have long been
© The Author(s) 2017
P. Mindus, European Citizenship after Brexit, Palgrave Studies in European Union Politics, DOI 10.1007/978-3-319-51774-2_3
uncomfortable navigating the space between the political truth of popular hostility to immigration and the legal commitments of the UK to the EU Treaties. On that account, EU citizens exercising free movement rights are simply “lucky immigrants”’ (Shaw 2016).1 It has been submitted that ‘to abolish many of these rights en bloc, with minimal or no parliamentary scrutiny, undermines fundamental rights, but is also undemocratic and detrimental to the parliamentary sovereignty’ (Douglas-Scott 2015).
In the event of a non-negotiated exit, Union citizens would lose their right to live in the UK based on the Treaties and EEA nationals in the UK will no longer benefit from the rights contained in the Citizens Directive 2004/38/EC, implemented into British domestic law via the Immigration (EEA) Regulations from 2006. The UK could apply its national immigration laws to all EEA citizens, that would require (merely) repealing s 7(1) of the Immigration Act 1988, which provides that leave to enter or remain in the UK under the Immigration Act 1971 is not required by a person who is entitled to enter the UK by virtue of EU rights.
Any arrangements that allow EU citizens to continue to live and work in the UK have to be negotiated, just as UK nationals in member states who will lose Union citizenship after EU law ceases to include them in its ‘personal sphere of validity’ (Kelsen 1945). Also prospective EU migrants, that is, those who wish to migrate to the UK after Brexit would be affected, but I shall leave this aside.2 They would be subjected to the full force of British immigration law in the event of an agreement-less exit, but in absence of ‘acquired rights.’ An intriguing case would be family members wishing to join second country nationals in the UK: Can they claim rights if the family relationship is prior to Brexit? Most certainly, they would be excluded from the protection offered within the ambit of Union law: The ECJ has qualified the ‘genuine substance’ doctrine of Ruiz Zambrano pointing out that the mere desire to keep a family together does not constitute ground for accommodating claims by third country nationals.3
Naturally, the so-called vested rights for EU citizens in the UK and for UK citizens in the EU cover a much broader subject matter than freedom of movement, including, for example, social policy, non-discrimination law and fundamental rights. Here we will deal foremost with free movement since the Brexit debate centred on migration. Even narrowing down the topic in this way the numerous difficulties that emerge promise an increased workload ahead.
Modifications in legal position will affect approx. 2.9 million nonBritish EU citizens in the UK and approx. 690,000 UK citizens currently living in EU member states. This assertion stands in stark contrast to often repeated claims: The media has reported that second country nationals in the UK would amount to 3-3.3 million and that UK citizens residing in other member states would amount to 1.2-1.3 million. A few sources refer to the unofficial data of the Migration Observatory based on its analysis of Labour Force Survey.4 But most sources take these figures from the UN.5 This data, however, refers to persons residing in a country or geographical area by their country of birth. Legal positions are not held in virtue of ‘place of birth’ but citizenship: Ius soli at birth is not the sole mode of acquisition of nationality. Ius sanguinis allows for naturalisation abroad and acquisition of nationality by birth for persons born abroad. EU citizenship depends on the nationality of a member state, pursuant to Art. 20(1) TFEU. Eurostat records nationality, making it a preferable source of data. ‘The use of UN data in this context may result in discrepancies and misrepresentation of the impact of Brexit of UK and EU nationals’ (Carrera et al. 2016). Not even Eurostat data is to be relied upon entirely: National statistics may include dual nationals holding UK and the reporting country’s nationality. Eurostat data is nonetheless preferable to UN data. Based on Eurostat data combined with the UK Office for National Statistics (ONS), there were around 2.9 million second country nationals residing in the UK on 1 January 2015. Polish, Irish and Romanian nationals are top three of second country nationalities present in the UK. There were also around 690,000 British citizens residing in other EU member states.6 The majority of these UK citizens reside in Spain, but a significant number are living in Ireland, Germany, the Netherlands, Italy, Belgium and Sweden.
Behind the numbers, there are individuals who, according to their specific circumstances, will be affected by Brexit in quite different ways. Let us start by looking more closely, in the next section, at the situation for second country nationals living in the UK and then, in Section 3.2, at the situation of British nationals residing in other parts of the Union. The narration of the real-world cases presented below aim to enable appreciation of the multitude of effects and the layers of issues involved. They also allow pointing out how dramatic a change like Brexit may be in the lives of those involved. The reader who feels comfortable in mastering the legal complexities affecting those who have relied on free movement in making their life choices can move on to the next chapter.