Rights of EU Citizens in the UK after Brexit
A fair settlement - or a privileged caste with superior rights
enforced by a foreign court?
By Martin Howe QC, Francis Hoar and Dr Gunnar Beck: full
An early and fair settlement of the rights of EU citizens resident in
the UK, and of UK citizens resident in the EU27, has been a priority
for the British government. When the European Council published its
Brexit negotiating guidelines on 29 April 2019, it appeared that the
EU27 shared that objective as well and that any discussions would be
limited to matters of detail.
Unfortunately, the picture radically changed on 24 May 2014 when the EU
Commission published a more detailed Working
Paper. This introduced two major demands, absent from the European
Council’s guidelines. First, it demanded that EU citizens should, in
perpetuity, have “the same level of protection as that set out in
Union law at the date of withdrawal”; and, secondly, that their
rights in the UK should be overseen, interpreted and enforced after
Brexit by the EU Commission and by the European Court of Justice at
We have published a detailed
paper which explains why each of these demands is unacceptable.
The reason that “the same level of protection” as in current EU law is
so controversial is that, under the case law of the ECJ, citizens of
other EU states are entitled to greater rights than British citizens.
One important example is that British citizens who marry a non-EU
spouse are prevented from bringing that spouse into the UK unless they
can satisfy the test that they will not be a financial burden on the
State. No such corresponding restriction applies to a citizen from
another EU state before they may bring a non-EU spouse to live here.
So the Commission’s demand would create a population of EU nationals
living in the UK, now exceeding 3 million people, all of whom would
have rights for their lifetimes (and in some respects for their
children’s lifetimes) exceeding those of British citizens. It is not
widely understood that significant levels of immigration of non-EU
nationals in fact occur because EU law grants “derivative” rights to
children and spouses, and in some cases parents and other relatives or
informal family members, of EU nationals who are resident here or move
here. The Commission’s demand would leave a gaping hole in the
ability of the UK to control non-EU immigration. What’s more, it
would do so by unfairly and irrationally discriminating against UK
The Commission’s second demand is even more extraordinary. It proposes
that the UK should be under the long-term jurisdiction of a foreign
court after exit from the EU, when there will no longer be any British
judge on the Court. It is incredibly rare in international relations
for a state party to a treaty to subject itself to the jurisdiction of
the courts of the other party to the treaty. Disputes about the
interpretation of treaties are, almost without exception, resolved by
international tribunals or arbitral bodies which are strictly neutral
between the treaty parties.
Not only is this general international practice, but it is a practice
followed by the EU itself. Our examination of the many trade and
association treaties which the EU has concluded reveal none in which a
non-member state has accepted the jurisdiction of the ECJ in the way
proposed by the Commission. Even the agreement between the EU and tiny
Andorra provides for international arbitration with a neutral chairman.
Why would Britain accept an arrangement which insults its status as an
independent and sovereign state, an arrangment which not even Andorra
was called on to accept? Why would the Commission expect it to? One
possibility is that this has been proposed with the intention of
sabotaging the Brexit negotiations with the UK.
Quite apart from the jurisdiction of a foreign court being incompatible
with the status of the UK as an independent nation, we cannot expect
the ECJ to give unbiased rulings on what is agreed in the Withdrawal
Agreement. As we explain in our paper, the ECJ has been persistently
biased against Member States, ruling in favour of the EU institutions
and developing ever expanding individual rights under EU law. After the
UK ceases to be an EU Member State, the court would accord us even less
Finally, should a future government concede a demand along these lines,
such provisions appear to fall within the “referendum lock” provided
for in William Hague’s European Union Act 2011; and would trigger the
need for a referendum in the UK on whether or not to accept the
withdrawal agreement. It should be pointed out to those who might
otherwise be alarmed by this prospect, that the referendum would be on
whether to leave the EU with or without an agreement, and would not
involve potential reversal of the decision to leave.
While these unacceptable proposals should be rejected, we propose a
fair and durable settlement. EU nationals resident in Britain for a
sufficient period before our withdrawal from the EU on 29 March 2019
should be granted indefinite leave to remain under our immigration law.
Such EU citizens should have the same rights as UK citizens to
employment, benefits, pensions, education and other public services.
They should have equality with UK citizens, and be automatically
entitled to apply for British citizenship after 5 years’ residence.
By contrast, the Commission’s proposals would create a privileged class
of over 3 million non-citizens resident in the UK, their rights
enforced by a foreign court exercising jurisdiction over the UK, its
government and Parliament. The closest parallel for this arrangement is
when the British Supreme Court for China exercised extra-territorial
jurisdiction over British citizens in China, who were not subject to
the jurisdiction of the courts of China. This operated alongside
similar extra-territorial courts for citizens of the other Western
powers. This striking parallel has occurred not only to us, but also to
Franklin Dehousse, who recently retired as a Judge of the EU General
Court in Luxembourg. He said:
“in principle, it is hard to justify that EU migrants, through the
maintaining of many European regulations, will become some sort of a
super-privileged caste in the future UK (as will the UK migrants in the
EU Member States). The country will thus become some kind of new 1930
Shanghai, where the EU citizens will benefit from multiple privileges
(the more so if the European Court of Justice keeps a full
We cannot agree more. Only robust rejection of these demands by the
British government will get the
negotiations on track; and such a rejection is necessary to bring home
to the EU member states that they need to curb this unreasonable
behaviour by the Commission.