Brexit: The Difficulties of Safeguarding the Rights of EU Nationals in the UK

Britain’s withdrawal from the European Union formally begins today with the delivery of an Article 50 notice from London to Brussels.

One of the issues that will be up for discussion during the negotiations is the status of EU nationals (like me) who work in the United Kingdom. Unlike others, I am pessimistic about the prospects of a deal being reached between the EU and the UK on this issue, for intertwined legal and political reasons.

It is clear that the starting point for the EU will be that EU nationals will have full rights until Britain actually exits the EU in 2019. There will be no “cut-off” date. This is undoubtedly correct as a matter of law; imposing a cut-off date would create an indivious and unlawful distinction between individuals who had acted lawfully.

But the EU position has much deeper roots than is appreciated. The rights enjoyed in the UK by EU nationals relate not just to the ability to lawfully live and work here but also to freedom from discrimination. It would be contrary to EU law for Britain to discriminate against EU nationals in employment and the provision of services. But after Brexit there is no guarantee that the non-discrimination principle will be respected.

What about a ‘Hire British’ policy? What about preferential treatment for British children in university entry and the provision of financial support for education? What about tiered access to social welfare benefits? These are not fanciful propositions: versions of them exist across the developed world. For the rights of EU nationals to be protected in Britain post-Brexit, safeguards will need to be put in place. EU nationals in employment today will justly seek guarantees that they will not be discriminated against should they move jobs in the future. Infant EU nationals (like my own children) should also be guaranteed that they will not be denied access to benefits and services (even many decades from now) because they are not UK citizens.

How can the necessary safeguards be imposed, however? Once Britain has left the EU, the supremacy of EU law will cease to exist; the oversight role of the Court of Justice of the European Union will be removed. The alchemy performed by the European Communities Act 1972 and the UK courts, such that EU law was immune from implied repeal and domestic statutes in conflict with EU law could be disapplied, will be undone. Any legislative guarantee of non-discrimination will be (a) subject to repeal by a transitory parliamentary majority and (b) at risk of implied repeal (by, for instance, a “Great British Educational Reform Bill” or something similar).

The Human Rights Act 1998 will provide some safeguards, especially against implied repeal, but the long-term prognosis for the 1998 Act is not good and, in any event, a declaration of incompatibility would be cold comfort to EU nationals whose rights were removed by an express statutory provision.

Surely, you might say, Parliament would safeguard the rights of EU nationals. That argument is unlikely to be well received at this point in time. Not long ago, the House of Lords proposed an amendment to the EU (Notification of Withdrawal) Bill 2017 that would have required government ministers to bring forward proposals within three months of the triggering of Article 50 for the safeguarding of the rights of EU nationals in the UK. The proposed amendment was not especially coervice — it committed ministers only to bringing forward proposals. Indeed, and this point cannot be emphasised enough, ministers will eventually have to bring forward proposals about what to do with EU nationals in the UK (most of whom are undocumented). But even though the provision would only have required ministers to bring forward proposals — something that they will have to do anyway — it was voted down by the House of Commons. In light of this unfortunate episode, one might legitimately have doubts about Parliament’s ability to withstand pressure from the public, press and government of the day. If Parliament could not hold firm on this modest amendment, how will it stand its ground when the non-discrimination principle stands in the way of a popular policy objective?

In summary, it is difficult to see, legally and politically, how Parliament can legislate an effective, permanent guarantee for the rights of EU nationals in the UK. Some sort of mechanism involving the Court of Justice of the European Union would be vastly preferable. But it is doubtful that the British negotiators would permit decisions of the Court to continue to have direct effect in the UK.

This content has been updated on April 25, 2017 at 09:47.