The Home Office’s New Workload
Second country nationals in the UK will not lose their status as Union citizens; they recover full rights on return to the ‘territory of the Union’ (Azoulai 2014) and keep non-territorial rights associated with European citizenship, such as consular protection. It is not evident either that EU citizens resident in the UK will automatically be subjected to restricted political rights because of Brexit. Twenty-two member states allow their citizens to vote for the European Parliament when they reside in a non-EU state.7 Additionally:
there are sound reasons for the EU institutions to pressure the remaining five to change their policy, especially in light of the Court of Justice’s Zambrano ratio that Member States should not hinder ‘the genuine enjoyment of the substance of rights conferred by virtue of their status as citizens of the Union’. Moreover, it is not implausible that the Court of Justice’s Delvigne will prompt a legal challenge to disenfranchisement of Union citizens residing in non-EU Member States (Ziegler 2016).
Given that Article 20 TFEU does not make any reference to residence, the scope of personal validity of European citizenship cannot be limited with reference to residence, as shown in Eman & Sevinger.8 For European migrants in the UK - simply ‘aliens’ after Brexit - the withdrawal agreement is key to understanding their future situation. According to an often- made statement - to be tested - those with permanent residence would be given indefinite leave to remain.9 But a number of hard cases are susceptible of arising. In particular, there is a timing problem for defining ‘acquired rights’: Will the negotiated solution take into consideration rights in the process of being acquired such as legal positions of those who are working towards a permanent right of residence? Or will there be a cut off date for determining acquired rights? Will that date be Brexit? Will all those who had not matured the permanent right to reside by Brexit-day have their right to stay invalidated ex tunc?
Consider, for example, Charlotte, the 15-year-old daughter of French citizens living in London: Will she have a claim to equal treatment in respect of university fees as she will turn 18 after Brexit date? And will a degree taken in the UK even be recognised in EU27?10 Or take Belgian Olivier, a self-employed psychologist in Bristol, who gets married to his girlfriend from Singapore: Will he be able to bring his spouse to the UK or will he need to prove, in accordance with the more restrictive British policy, that he earns ?18,600 pa, which he, as almost half of the UK population, does not? The Greek Stephanos worked a couple of years on a part-time low paying teaching job before obtaining a PhD grant. Students also need to have a ‘comprehensive sickness insurance’ but he is among the 1/1000 inhabitants in Europe with a diagnosis of multiple scleroses, so no private insurer will insure him for ‘previously existing conditions.’ Will he lose the right to reside that he was in the process of acquiring or can he retain his previous worker condition? This also puzzles Leila from Luxembourg who did have a job, but that she was forced to leave while pregnant. As primary carer of her two-year-old son David, she has not yet found employment. Will she be able to stay? Sean is sarcastic and thinks the very existence of multiple citizenship undermines the point of Brexit, if the point was - as Cameron has stated - an issue about immigration. In a pub in Belfast he argues that dual citizenship may be the answer for many. That European citizens are naturalising in the UK (or at least seeking permanent residence documentation as the first step to naturalisation) would be an indication of how to stay as a UK citizen while keeping EU citizenship. This prospect seems less convincing to Robert from Vienna who fears that the ban on multiple nationality enforced in certain member states, makes it rather implausible.
Furthermore, consider the Italian Irene who has been part-time student and part-time waitress in the City for eight years and is married to Andrea, from Brazil, who got in on a visa as a family member of a European citizen in 2014 and still has three years left on visa when Brexit occurs: Irene finds out that she can naturalise but if she does, Andrea might lose the ability to exercise treaty rights in the UK.11 Irene figures that the UK will still be bound by the European Convention of Human Rights (ECHR): Its Article 8 on ‘family life’ is widely drawn and the case-law - she is told by a friend who studied law - has proven that Art. 8 would cover Andrea’s ‘legitimate expectation to live in the country.’ But if she is wrong, Andrea might need to leave for Brazil. Should Irene apply for naturalisation?
Now, consider self-sufficient Ulrike from Germany, who has been married to Peter, and living in Sussex for almost two decades. She now discovers that, for the Home Office, her ability to use the NHS - which she has regularly used most notably when giving birth to their children - does not count as ‘comprehensive sickness insurance’ so therefore she has never built up a right of residence.12 She was just physically present in the UK, they tell her. But she knows she could get a European health insurance card from her home country and even get it backdated. There is a reciprocal healthcare arrangement with Germany. The Home Office, though, requires her to sign a declaration if she wants to use for this option: She must declare that she has no intention of staying permanently in the UK: What is she going to tell her husband?
More worried, however, is Francisca from Lisbon, who came to England a decade ago, at the age of eight with her abusive father who found a job in a manufacturing in Herefordshire. Her younger brother Santiago, aged 17, who always seems to get into trouble, has been sentenced to deportation after committing a crime in the UK punishable with imprisonment for 12 months. Prior to Brexit, European citizens could be removed only on serious grounds of public policy and public security, pursuant to Art. 28 of the 2004 Citizens Directive. But after Brexit, the law that applies might be Section 3(5) IA 1971 of the domestic legal order that commands at the second comma (b) to deport a non-UK citizen if ‘another person to whose family he belongs is or has been ordered to be deported.’ Even though pregnant and a long-term resident of the UK, Francisca fears she might be expelled since Brexit Britain would not need to comply with the European law principle of proportionality that has hitherto mitigated removal practices. Post-Brexit UK could thus practice removals without paying due attention to age, health status, family or economic situation, social and cultural integration into the host society. Notable in this perspective are also the key provisions for automatic deportation of non EEA-nationals under UK Border Act 2007. Is her fear misplaced? Can the UK pursue an energetic expulsion policy?
Legal uncertainty is destined to increase. It may be relevant to address the hard cases to come in a future Brexit withdrawal treaty and/or treaties over the future relations with the UK so as to curb future litigation and limit the number of administrative errors that are likely to rise, given ‘the manifest inability of the Home Office and the various associated agencies even to deal effectively with their existing workload without putting several million more people under immigration control’ (Shaw 2016).